Is Sampling A Candy In A Bulk Foods Store Criminal Activity?
You may argue that you were only sampling to decide whether you wanted to buy a larger quantity. You can argue that it is such a small amount that it is not worth the time and money involved for the state to prosecute you. But what if you take more than one candy, perhaps a handful, and eat them while you browse among the bins? At what point can the state get involved and prosecute you for theft.
The short answer is that even eating one candy is theft and can be prosecuted under the Criminal Code of Canada. There is, however, a defence, de minimus non curat lex, that can be made. De minimus non curat lex translates to "the law does not concern itself with trivialities" or that the small quantity does not matter. The de minimus principle, which exists at common law, has not been codified so a judge can reject it. (One would think that the retailer would reject the argument on the basis that each if every customer made a de minimus taste test, the retailer would soon be broke).
Of course, this question is not purely academic. In 2009, a Mr. Fowler was prosecuted and convicted for eating a handful of nuts from a bulk food bin with an estimated value of $2.50. Among his defences, he argued the principle of de minimus non curat lex. The prosecution argued that that allowing de minimus as a defence to minor theft would encourage shoplifting. The judge rejected that argument finding that the conduct was "wrongful" but not to an extent that it should be stigmatized as criminal.
R v. Fowler, 2009 SKPC 114, https://www.canlii.org/en/sk/skpc/doc/2009/2009skpc114/2009skpc114.html?searchUrlHash=AAAAAQAZZGUgbWluaW11cyBub24gY3VyYXQgbGV4IAAAAAAB&resultIndex=4
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