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Defend Theft Under $5000

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Our Experience

In Canada, theft is considered a property offence. Property offences are among the most common criminal offences in Canada. An individual may be charged with theft for taking anything that they do not have a legal right to, with the intention to deprive the rightful owner of the item. This means that the Crown must prove that the accused intentionally took the item knowing it did not belong to them. The Criminal Code categorizes theft offences based on the value of the item, and sometimes based on the item itself. For example, those who steal items valued at more than $5,000 will be charged with theft over $5,000, while those who steal items valued at less than $5,000 will be charged with theft under $5,000. Those who steal a car may be charged with theft of a vehicle.

In 2020, the Firm successfully defended a client accused of participating in a fraud and theft ring involving Home Depot stores in the case of R. v. M.K. [2020]. Loss prevention staff at Home Depot launched an investigation into the matter after they began to suspect that a customer was stealing items and returning them to the store for a cash refund. The loss prevention team reported the activity to police who investigated and uncovered the theft ring. The Firm resolved the matter without a criminal record.

In the 2023 case of R. v. M.F. [2023], the Firm represented an employee accused of stealing a box of merchandise from his long-time employer. The company contacted police after allegations were made that merchandise had been going missing from the shipping department for months. The company launched an investigation into the matter, uncovering evidence to suggest that the employee had stolen items as well as fraudulent shipped product to himself. Unable to prove the fraud, the police charged the accused with theft under $5,000. The Firm called various pieces of evidence into question, resulting in the charge being withdrawn.

In 2020, the Firm defended a client accused of stealing the master key to his condo building in the case of R. v. J.W. [2020]. The condo board began an investigation after it was discovered that someone had stolen a master key from the front desk of the building. The building was forced to spend more than $15,000 to replace the locks on the entire building to ensure the individual with the stolen master key could not gain access. After investigating the matter, they discovered it was the accused individual who had taken the key and contacted police when he refused to reimburse the condo. The Firm got involved in the matter, ultimately having the charges withdrawn by arguing that this was rightfully a civil dispute. The matter was resolved without the client repaying the money.

Donich Law has experience defending a wide array of fraud and theft charges in jurisdictions across the province of Ontario. We have represented first time offenders charged with minor shoplifting offences as well as individuals accused of stealing more than a hundred thousand dollars. Typically, the higher the value of the items stolen, the more severe the proposed sentence will be from the Crown. Higher value theft also makes it much more difficult to resolve the matter without a criminal record for the accused.

Punishments for Theft Depend on the Value of Property

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In 2017, the Firm represented a government employee who used their position to defraud a major Canadian bank out of approximately $50,000 in the case of R. v. S.A. [2017]. The individual was alleged to have used their government position to create false tax documentation as well as a false identity and use those fraudulent documents to open bank accounts and a line of credit. The banks fraud department discovered the suspicious activity and reported it to law enforcement. The Firm engaged in both Crown pre-trials and judicial pre-trials before running a contested plea hearing. The Firm was successfully at the contested plea hearing, securing a conditional discharge and avoiding a criminal record for the accused.

In R. v. M.S. [2021] and R. v. D.H. [2021], the Firm defended two individuals charged as co-defendants in case involving theft under $5,000 charges. The individuals were alleged to have stolen high priced food items from a grocery store in an attempt to save their business during the pandemic. The Firm recommended upfront work for the clients to complete prior to engaging in negotiations on the file. The Firm ultimately secured a withdrawal of the charges against both co-accused.

The Guelph Police Service reported 1019 cases of theft $5,000 or under in 2022 in comparison to 2021 where there were 932 cases. In addition, there were 875 cases of theft from a motor vehicle in 2022, and 647 cases of shoplifting worth $5,000 or under. There was a significant increase in property crime from 2021 to 2022.

How to Defend Theft Under $5000

In 2020, Donich Law represented a client accused of stealing more than $30,000 from his employer in the case of R. v. E.K. [2020]. The accused’s employer made a report to law enforcement after an internal audit uncovered the missing merchandise. The company alleged that the accused along with her manager had participated in a theft ring over a period of time. The Firm carefully analyzed the evidence presented by the Crown and gathered evidence of its own. The Firm presented the Crown with evidence during pre-trial discussions to show that the accused’s manager had been the ringleader of the situation and had attempted to shift blame to the client. This information resulted in the charges against the client being dropped.

The Firm also has experience defending those accused of stealing from their employer. An individual who steals from their employer will be charged with either theft over $5,000 or theft under $5,000 depending on the value of the theft. Where an individual abuses their position of trust to steal from their employer, their case will be prosecuted more severely. The courts in Canada view the breach of trust as an aggravating factor in virtually all cases.

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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, [2015] 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, [2007] 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.

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Recent Cases

R. v. Mosonyi, 2022 ONSC 3465

In the Ontario Superior Court of Justice case of R. v. Mosonyi, the accused was charged with six counts relating to theft of copper plates from the Canadian National Railway. On three occasions, copper plates worth over $20,000 were stolen from trains bound for Toronto. Three men were charged, and the other co-accused were admitted accomplices and have criminal records. The co-accused testified against the accused and implicated him in several thefts. Cellphone evidence of conversations and communications related to train routes between the accused and the co-accused were admitted.

During the analysis, the Court carefully considered the testimony of the co-accused. The Court found that the testimony by unsavoury witnesses was not enough to find the accused guilty of the charges. The testimony was contradictory and was unclear about the accused’s extent of involvement in the crime. The Court found that they were left in reasonable doubt for the accused’s involvement in the theft. The accused was found guilty of possession of stolen property.

R. v. Riasyk, 2021 ONSC 5981

In the Ontario Superior Court of Justice case of R. v. Riasyk, the accused pled guilty to theft over $5,000 and theft under false pretenses. The accused was the son of the complainant, who was elderly and suffering from dementia. The complainant was deemed incapable of managing his affairs and the power of attorney was given to his son. The accused stole a grand total of $219,533.53 in addition to selling his father’s home.

The accused was in receipt of social assistance and was over $55,000 in dept. He had a serious drug problem with opiates and crack cocaine. The money stolen from his father’s account was used to fuel the drug addiction. He has attended many rehab centres. The offender had lost motivation, continued to neglect his financial obligations, with no counselling or programming to assist him in rehabilitation. There was no victim impact statement followed, and the father was unaware of the proceedings. The mitigating factors were that this was a first-time offender, and the guilty plea saving court resources. The aggravating factors were that this was a serious breach of trust and a complete depletion of all of the offender’s father’s assets, as well as a lack of remorse. The father was also a vulnerable person, and the offender’s actions were deemed by the court to be the abuse of a vulnerable person contrary to s. 718.04 of the Criminal Code. The offender was sentenced to 8 months in a penitentiary and 16 months of conditional imprisonment, in addition to 3 years probation. There is a restitution order of $219,533.53.

R. v. Harris-Lowe, 2021 ONCJ 260

In the Ontario Court of Justice case of R. v. Harris-Lowe, the accused was charged with theft of a motor vehicle, driving under the influence, and operating a motor vehicle with a blood alcohol concentration above 80 mg of alcohol in 100 ml of blood. Theft over $5,000 is indictable, but the Crown did not elect until over a year after the information was sworn. The accused argued that his right to trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was infringed.

The trial did not proceed due to various complications with the pandemic. The Court noted that in R. v. Jordan, [2016] SCC 27, the Supreme Court of Canada determined that the time to take an accused person to trial should not exceed 18 months. In addition, the defence must take meaningful and sustained steps to expedite the proceedings. The Court found that the accused’s section 11(b) application failed in that the accused’s conduct significantly contributed to the trial not proceeding. The net delay is 516 days, below the 18 month or 547 day ceiling established in R. v. Jordan. The application was denied.

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.