Frequently Asked Questions
Will I be able to Travel with this Conviction?
Different countries reserve the right to deny entry to any foreigner. The United States in particular is very strict about this policy. The Immigration and Nationality Act in the United States bars those with a conviction from entering the country. Section 212(a)(2) of the Immigration and Nationality Act makes anyone who commits offences of “moral turpitude,” or any offence regarding a controlled substance, inadmissible to the United States. Offences of “moral turpitude” may include but is not limited to: fraud, assault, arson, break and enter, robbery, extortion, etc. Theft is not included in the list. A pardon or record suspension does not exempt the offender from this clause.
Theft is a non-violent and non-sexual crime. Theft under $5,000 is a minor offence that may result in a conditional or absolute discharge. Conditional discharges are still considered a finding of guilt, which may bar the offender from travelling. However, withdrawals (such as the completion of a diversion program) will allow offenders to travel without issue. It is less likely to be denied entry for such a minor offence. If the person with the record is concerned or worried, under s. 212(h), they may be able to apply for a United States waiver from the Attorney General.
Does the Value of the Theft Matter in Guelph?
Depending on the amount the accused stole, the penalties for theft may be different. Theft over $5,000 is an indictable offence, and subject to a maximum penalty of ten years incarceration. Theft not exceeding $5,000 may result in a maximum penalty of two years less a day incarceration and/or a $5,000 fine. Where the item stolen was a testamentary instrument the penalties will increase. The amount stolen, in addition to where the person stole them from, can be an aggravating or a mitigating factor that the court will consider during sentencing.
In the Provincial Court of Newfoundland and Labrador case of R. v. Rumsey,  NLPC 5798, the Court ruled that shoplifting is “often seen as low level crimes of opportunity.” [at para 19] Shoplifting is a theft-related offence that often results in a conditional discharge or an absolute discharge. A large part of the reason for this is due to the lack of public interest in prosecuting a low-level crime, and without a prior record, the primary sentencing principles would be rehabilitation.
Will I go to Jail for Theft in Guelph?
During the sentencing process, a judge determines a fit and proper sentence for the individual. Section 718 of the Criminal Code describes the various sentencing principles as denunciation, deterrence, separation, rehabilitation, reparation, and promoting a sense of responsibility. Sentencing is often a very individualized process, with the sentence tailored to fit each offender and their circumstances. Sometimes lesser sentences are sufficient enough to satisfy the sentencing principles of rehabilitation, while longer sentences may be more suitable for the sentencing principle of denunciation and deterrence. There are various non-custodial sentences for theft.
There are no minimum penalties for theft. Theft may result in a conditional discharge, an absolute discharge, a diversion, a fine, or a jail sentence. Following from the above, the maximum penalties for theft are different depending on the amount stolen. If the amount stolen is over $5,000, the crime may be indictable and the offender may be sentenced to a maximum penalty of ten years in jail.
What if I Stole from My Job?
The Criminal Code does not have another separate offence for theft from the employer. However, large cases of employee theft usually result in jailtime. It is in the public interest to ensure that people do not abuse their position of trust. Being employed at a workplace is being entrusted with a position of trust. Stealing from one’s employer is an aggravating factor.
In the Court of Appeal of Alberta’s case of R. v. Fulcher,  ABCA 381, the respondent pled guilty to one count of fraud over $5,000. The Court of Appeal ruled that denunciation and deterrence were of the utmost priority, “the sentencing goals of deterrence and denunciation demand a sentence of imprisonment rather than the imposition of a conditional sentence for crimes of embezzlement or theft by an employee.” [at para 30]. The Court emphasized the importance of imprisonment for the public interest, saying, “If this conditional sentence were left standing, anyone else working in a similar capacity of trust for a similar employer could readily see an obvious blueprint for quick wealth.” [at para 44] The conditional sentence for the offender was set aside and substituted with a custodial sentence of two years.
What is a Position of Trust and Authority?
The Criminal Code does not strictly define a position of trust and authority. The Courts often consider the relationships between parties in a court case to determine aggravating or mitigating factors. They may consider several factors such as, difference in ages, evolution of the relationship, and status of the parties. A position of trust and authority is often seen as responsibility given to a person. An employer entrusts their employees with a certain degree of responsibility.
If the offender is in a position of trust or authority, it is a major aggravating factor for the court. This will increase the chance of the offender receiving the most severe form of sentencing: a custodial sentence. Instead of a conditional discharge, an absolute discharge, or a diversion program, incarceration is seen as the primary sentence for the sentencing principles of denunciation and deterrence.