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Defend Theft Under Charges

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Our Experience

An individual commits theft in Brampton when they take something that they do not have a legal right to. This can include stealing an item or money from a person or from a store or business, it can include stealing from one’s employer and can also include time theft which occurs when an employee gets paid for work they did not do. Theft offences in Canada are categories based on the value of the theft, splitting offences into theft over $5,000 and theft under $5,000. The higher the value of the theft, the more severe the penalty will be for the accused.

In 2016, the Firm represented an individual accused of committing theft and fraud against his employer in the case of R. v. J.A. [2016]. The accused was arrested after his employer alleged that he stole roughly $3,000 worth of sports merchandise from the Roger’s Centre. The matter was reported to law enforcement and the individual was terminated from his position. The Firm managed to call into question some of the Crown’s evidence, leading to a withdrawal of three theft and fraud charges.

Theft is a non-sexual and non-violent crime, and one of the most common offences in Canada. The Peel Regional Police reported 3,022 cases of shoplifting in 2021, the number rose to 4,392 in 2022. In addition, there were 10,149 reports of theft over and under $5,000 in 2021 in comparison to 2022, with 11,780 cases. There were 4,119 cases of theft of a motor vehicle in 2021, but 6,042 cases in 2022. Statistics Canada reported that the Peel Region consisted of 3.49% of total cases of theft under $5,000 in Ontario. Theft over $5,000 is indictable, while theft under $5,000 may be subject to a summary election.

The Firm regularly represents individuals charged with various theft offences in Brampton and in jurisdictions throughout Ontario including theft from one’s employer. Those accused of stealing from their employer will typically face either a theft under or theft over $5,000 charge, depending on the value of alleged theft. While the accused will be charged under the regular theft sections of the Code, cases involving theft from one’s employer will be prosecuted in a different manner than other theft offences. This is because of the trust employers place in their employees. Employers place their employees in a position of trust and authority within the company. Abusing that position is viewed as an aggravating factor which will justify more severe penalties for those convicted.

In 2019, the Firm successfully defended a client accused of stealing and defrauding their employer out of more than $170,000 in R. v. O.I. [2019]. The accused was an employee who allegedly used his position at the company to submit false returns and take the funds for his own personal use. After conducting an internal audit, the company uncovered suspicious activity and looked into the employee further, uncovering the alleged theft. The matter was further complicated by the fact that the employer sought to be reimbursed for the amount taken by the employee. The Firm challenged the inventory reports provided by the company, managing to exclude a significant portion of the alleged theft.

Punishments for Theft Depend on the Value of Property

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In 2017, the Firm represented an individual accused of defrauding the Bank of Nova Scotia of more than $50,000 in the case of R. v. S.A. [2017]. The accused was a Canada Post employee who used her position within the post office to create fraudulent tax document and a fake identity. She then used these fraudulent documents to open both a line of credit and a bank account with the bank. The banks sophisticated fraud detection department uncovered the suspicious activity and passed the information along to police who contacted and arrested the accused. After engaging in Crown negotiations, the Firm was unable to come to an agreement on an appropriate sentence with the Crown. The Firm scheduled a judicial pre-trial to get the matter before a judge and ultimately scheduled a contested plea hearing. The Firm resolved the most serious charges against the accused, and they were granted a conditional discharge, avoiding a permanent criminal record.

In 2023, the Firm represented an individual accused of stealing merchandise from the shipping department of his long-time employer in R. v. M.F. [2023]. The accused was terminated and charged with theft after his employer launched an internal investigation into missing merchandised and uncovered evidence implicating the accused. The employer alleged that video surveillance footage captured the accused removing a box of merchandise from a pallet of product to be shipped out and leaving the area with it. The employer alleged that the accused then left company property with the merchandise. The Firm reviewed the footage provided by the employer, uncovering various discrepancies and issues. The Crown ultimately agreed to withdrawal the charge at the request of the defence due to lack of reasonable prospect of conviction.

How to Defend Theft Under $5000

In addition to representing clients accused of stealing from their employer, Donich Law also has significant experience defending clients accused of shoplifting or committing retail fraud. Shoplifting is one of the most common criminal offences committed by Canadians and is committed by individuals from all walks of life.

In 2016, the Firm represented a licensed physician accused of stealing approximately $3,000 worth of merchandise from The Bay in R. v. S.Y. [2016]. The doctor was caught by loss prevention staff working for the store and reported to law enforcement. Regulated professionals including doctors may face additional penalties from their regulatory bodies if they are charged or convicted of a crime. The vast majority of regulatory bodies have a duty to report, which means those charged or convicted of certain offences must report their arrest to their regulatory body. The regulatory body may then launch an investigation of its own into the matter and prosecute the individual within the regulatory body. In this case the Firm secured a withdrawal of the charges, later destroying the client’s fingerprints and photographs and protecting his job as a physician.

In 2021 the Firm represented two co-accused charged with theft under $5,000 after allegedly stealing from a grocery store in the cases of R. v. D.H. [2021] and R. v. M.S. [2021]. The accused individuals were caught together by loss prevention with roughly $1,000 worth of product they had not paid for. Both young, first time offenders, the Firm recommended some up front work and negotiated with the Crown during pre-trials to secure a withdrawal for both individuals.

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Frequently Asked Questions

What are the Common Bail Conditions for Theft?

Bail conditions associated with theft typically has some of the least onerous conditions, as theft is a non-violent crime against property. Unlike crimes such as assault, child pornography, or child luring, theft is not a huge public safety issue. The accused may expect to receive an undertaking or a promise to appear from the station before being released. It is likely that the police will not hold the accused for a bail hearing, unless there are aggravating factors such as large sums of money or any prior record of breaching court or probation orders. In addition, the court may put a no contact order in place, prohibiting the accused from the person, location, or company that they stole from.

During a bail hearing, a justice will decide if the accused may be released or held in custody during the case. Bail, otherwise known as judicial interim release, allows the individual to be released into the community and enjoy rights and privileges with the presumption that they are innocent. However, the person is still charged with a crime, and the Court may impose bail conditions for the public.

Can I Get a Withdrawal in Brampton?

When a first-time offender is prepared to accept responsibility and the Crown and court is not interested in entering a jail sentence due to mitigating factors or lack of public interest, there may be diversionary programming offered. Section 717(1) of the Criminal Code details alternative measures that the Court may use to promote public safety without the use of incarceration. The program must be authorized by the proper authorities such as an Attorney General or an Attorney General’s delegate, the judge must be satisfied that these measures would be appropriate, the accused must be freely willing to participate, and the accused must be informed of their section 10 rights before any consent is given to participate in the program.

Can I Avoid a Criminal Record?

Sentencing is the last stage of the criminal court process and the conclusion of the case. A convicted person may get a criminal record, which may affect their social standing and employment opportunities. A criminal record appears on any police background checks, and those with criminal records are usually denied access to vulnerable people or populations. People with a criminal record may also find difficulties in travelling, especially to the United States.

Theft is one of the easier charges to avoid a criminal record, as it is neither a violent offence nor a sexual offence. However, this does not mean that theft is completely immune from criminal records. Depending on the value of the theft, it may be an aggravating factor. The Court may either enter a conditional discharge with ancillary orders or a conditional or absolute discharge. Ultimately, the aggravating and mitigating factors of each individual case and offender decides the length and conditions of the sentence.

What if I Took Something from the Store by Accident?

The law accounts for common accidents that citizens may make. It is in the interest of the authorities not to charge people for minor crimes. Shoplifting and other theft charges under $5,000 have a higher chance of receiving a conditional and absolute discharge. The defence of honest but mistaken belief can be submitted during trial.

In order for a conviction to be entered, the accused must have intended to commit the crime. The Court cannot convict someone of a crime they did not intend to commit, as there is no mens rea or “guilty mind.” The guilty mind in combination with the act is the crime. The person taking something accidentally from the store had no intention of committing the crime—it was an honest but mistaken belief.

For example, person A walks into Walmart with their young child who is in a baby stroller. Person A moves around the store picking up items. She picks up a dress for her young daughter and hangs it off the handle of the stroller. When she is finished shopping, she goes to the front and pays for the items in her shopping basket, then begins to leave the store. She forgets the dress is hanging on her stroller and when she walks through the doors the alarm is set off. Person A made an honest mistake and had no intention of stealing the item.

How Does the Crown Prove Theft?

In order to prove their case, the Crown must prove first prove the identity of the culprit, date and time of the incident, as well as the jurisdiction. In addition, the Crown must prove that the person moved the object with the intent of either (1) depriving someone of it either temporarily or absolutely, (2) pledging or depositing the property as security, (3) irresponsibly handling it or (4) irresponsibly handling it to the point that it cannot be restored to its original form.

The Crown must prove that the property did not belong to the accused, the value of the property must be enumerated, and the continuity of the property must be taken note of. The Court cannot convict someone of a crime they did not intent to commit. The mens rea, or “the guilty mind” is necessary in the judicial system for a conviction. The Crown must prove that the person did move the object and did have intent to move the object knowing they had no colour of right in the item.

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Recent Cases

R. v. Hugill, 2019 ONSC 1448

In the Ontario Superior Court of Justice case of R. v. Hugill, the accused was charged with theft under $5,000 (stealing cheques), and various fraud charges related to those cheques. The accused and the complainant were brothers who inherited farms from their father. They collaborated in a farming business and often worked together, though both had separate finances. Occasionally the accused would require money from the complainant, which the complainant would loan the accused.

The accused was charged with forging the complainant’s signatures and cashing in cheques. The accused also had bipolar disorder, which the complainant would support him with. The Court found that in order to prove theft under $5,000, the Crown must prove that it was the accused had taken and/or converted the cheques which belonged to the complainant with the intent of depriving the complainant of that property. The cheques themselves were worth less than $5,000, though the money cashed was often an amount much higher. The Crown failed to satisfy and prove beyond a reasonable doubt that this happened. As such, the defendant was acquitted of the theft charge.

R. v. Burrill, 2022 ONCJ 274

In the Ontario Court of Justice case of R. v. Burrill, the accused pleaded guilty to ten criminal charges in the Gladue court. He stole bottles of hand sanitizer from a commercial building on three separate occasions, worth less than $200 in its entirety. In addition, he pled guilty to possession of a break-in instrument, assault, possession of a weapon, robbery, as well as breaching release orders.

The accused experienced significant difficulty during COVID-19, and attributed his offences to survival. Struggling with supporting himself, maintaining a residence, his challenges with addiction as well as the removal of vital mental health services resulted in these offences. As the accused was an indigenous offender, Gladue principles of sentencing was applied. The judge ruled that the long-term rehabilitation was the paramount sentencing principle, as the accused has employment, stable housing, culture-specific programming, and support from his partner. He was sentenced to an intermittent sentence of 90 days followed by two years’ probation on the robbery count, in addition to a suspended sentence on other counts. Furthermore, he was sentenced to a section 109 prohibition for life, and a DNA order.

R. v. Cvetas, 2022 ONCA 499

In the Ontario Court of Appeals case of R. v. Cvetas, the appellant pled guilty to theft over $5,000. He had taken $317,000 from his 81-year-old godmother’s account. His sentence was 12 months’ imprisonment followed by two years of probation. The appellant sought to appeal his sentence, saying that the trial judge erred in not giving him a conditional sentence. He has made restitution, and his probation officer recommended his suitability for community supervision. He has lost his professional license as well.

The objectives of deterrence and denunciation were deemed to be the sentencing principles by the trial judge. The Court of Appeals found that they should defer to the trial judge, as she properly arrived at the sentencing decision after considering both aggravating and mitigating factors. They did not see any basis that would warrant any intervention. A conditional sentence would not have sufficiently satisfied the sentencing principles, and the Court found that the trial judge made no errors. The court cannot interfere unless there is an error of law or principle that impacted the sentence. The sentence of 12 months’ imprisonment was stayed.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.