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Defend Theft Under $5000

Crime Statistics

Theft is a non-violent crime that can be categorized into Theft Over $5,000 or Under $5,000. Theft charges are some of the most common offences in Canada. People of all ages, demographics and socioeconomic status steal for various reasons. Theft is also committed by many law abiding citizens who are gainfully employed and simply make a mistake or poor decision. The behavior of stealing can also become habit forming, eventually leading to criminal prosecution, fingerprinting and other life consequences.

National Theft Under $5000 Charges in 2022
Contribution to the Crime Severity Index
Theft Over $5000 Charges in Canada 2022
Unfounded Incidents of Theft Under $5000 in 2022

Our Experience

Property crimes are among the most common offences in Ontario and across Canada. Theft is considered a property offence. When an individual is accused of theft, law enforcement officials have the discretion to lay charges if they deem it necessary to do so. Donich Law has experience defending individuals accused of stealing a wide array of items with values ranging from a few dollars to over a hundred thousand dollars. The Firm has experience defending individuals who have been accused of theft but not yet charged. In some circumstances, the Firm has been able to avoid charges being laid by communicating with the officer in charge to rectify the situation without the justice system’s assistance.

In 2015, the Firm represented a client charged with theft and fraud under $5,000 in the case of R. v. G.G. [2015].  The accused, a bank teller at a major Canadian bank, was alleged to have stolen cash while on the job. The sophisticated loss prevention team discovered the suspicious activity and reported the employee to management who then reported the matter to law enforcement officials. The Firm resolved the matter with all charges being withdrawn after calling into question key pieces of evidence against the accused.

Theft is a non-violent and non-sexual but, in some cases, indictable crime. In 2022, the Waterloo Regional Police Service reported 1,036 vehicle thefts in their annual report. The most frequent crime reported online was theft under $5,000. The Waterloo Regional Police Service also has a Computer Aided Dispatch program, and they reported 8,370 calls about theft under $5,000. In their Criminal Offence Summary of 2021, the WRPS reported 594 cases of theft over $5,000; in addition, there were 3,066 cases of theft under $5,000.

Donich Law has over a decade of experience representing clients charged with shoplifting offences as well as those accused of participating in retail theft rings. Retail theft rings occur when one or more people develop a plan to repeatedly steal from a store or commit fraud against a store. Theft rings result in large losses to stores as the same store is often hit repeatedly. Individuals caught participating in theft rings are often charged with multiple theft and fraud offences, due to the repeated nature of the theft. The Firm regularly obtains favourable results for clients including resolving matters by way of withdrawal or without a criminal record for the accused.

In 2016, the Firm represented an individual alleged to have participated in a sophisticated theft ring targeting various retail stores throughout the GTA in R. v. K.L. [2015]. The accused was reported to law enforcement by loss prevention staff at Target stores as well as Staples stores. The Firm negotiated with the Crown during pre-trials and secured a withdrawal of eight theft and fraud charges.

Punishments for Theft Depend on the Value of Property

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In 2016, the Firm represented a Bay Street executive accused of shoplifting $1,500 worth of men’s clothing from The Bay in R. v. C.T. [2016]. The accused was caught by undercover loss prevention staff working for the store. The Firm worked with the Crown to negotiate resolution without a criminal record for the accused.

In addition to representing individuals charged with theft, shoplifting and retail theft ring offences, the Firm also has considerable experience defending individuals accused of stealing from, or defrauding their employer. In Canada, there is no separate offence for theft from one’s employer. Instead, such an individual would be charged with either theft over $5,000 or theft under $5,000 depending on the amount taken. Stealing from one’s employer, however, will be considered an aggravating factor in any case.

In 2017, the Firm represented a client accused of stealing cash from CIBC while on the job in the case of R. v. D.D. [2017]. The accused was an employee of the bank and was caught on surveillance putting cash into a bag and then removing it from bank property. The individual was terminated and subsequently reported to police and charged. The Crown took a harsh initial stance on sentencing due to the aggravating nature of the offence. After engaging in lengthy Crown negotiations, the Firm resolved the matter without a criminal record for the accused.

How to Defend Theft Under $5000

In 2023, the Firm represented an individual who was accused of committing theft and fraud against his employer in the case of R. v. M.F. [2023]. The accused’s employer launched an investigation after their shipping department reported items missing from the loading dock area. The investigation uncovered evidence to suggest that the accused had been both stealing and fraudulently shipping products to his home address. Unable to prove the fraud offence, the accused was charged with theft under $5,000 for allegedly removing a box of merchandise from company property. The Firm engaged in a detailed analysis of the evidence and Crown’s case, pointing out several issues, which led to the Crown withdrawing all charges for lack of reasonable prospect of conviction.

In 2017, the Firm represented a government employee who used their position to defraud the Bank of Nova Scotia out of more than $50,000 in the case of R. v. S.A. [2017]. The Canada Post employee used their employment position to source both fake identity documents as well as fake tax documents and used them to open bank accounts and take out a large line of credit. Bank internal processes uncovered the fraud, and it was reported to police, resulting in the accused’s arrest. The Firm ran a contested plea hearing on the matter as the Crown was unable to offer a reasonable deal, due to the aggravating nature of the offence. The Firm was successful at the contested hearing, securing a conditional discharge for the accused.

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Frequently Asked Questions

What Are Aggravating and Mitigating Factors in Sentencing?

The process of sentencing is unique to each individual and must abide by sentencing principles. Section 718 of the Criminal Code details the sentencing principles of denunciation, deterrence, separation, rehabilitation, reparation, and promoting a sense of responsibility. During sentencing, the Court will consider all of these factors as well as any aggravating or mitigating factors in an individual’s case. The sentence must be tailored to the individual offender.

Aggravating factors and mitigating factors vary depending on the offence. For the offence of theft, some aggravating factors are: a prior record, a breach of trust, a lack of recovery of items, and an inability to compensate the owner. Mitigating factors may include things such as an offender’s genuine remorse, a high chance of rehabilitation, or if this was a first-time offence. Other factors that the court considers include any history of alcohol or substance abuse, as well as the value of the theft. A pre-sentence report detailing the accused’s life and circumstances may contribute positively to the sentencing process, as it may help the court tailor the sentence to the offender.

How Does the Crown Prove Theft in Kitchener?

Section 322 of the Criminal Code describes the offence of theft as committing an act where the person “fraudulently and without colour of right” takes or converts a piece of property for their use. In order for the court to convict an offender, the Crown must prove beyond a reasonable doubt that the accused is guilty of the crime.

In order to prove theft in Kitchener, the Crown must prove the identity of the accused, the date and time of the incident, where the incident occurred, the property’s owner, the value of the property, and that the accused intended to move or convert the property, thus depriving the rightful owner of the item. The evidence may include proof of ownership or the actual objects themselves. Once the Crown proves these elements beyond a reasonable doubt, the offender will be convicted, and the court will determine a fit and appropriate sentence.

What is Colour of Right?

Colour of right refers to an individual’s legal interest in an item. If an individual has colour of right in an item, they legally possess that item. It can either the person’s personal possession, or it may be leased or rented to them. For example, a person who owns a car has the colour of right to that car. A person renting an apartment has the colour of right to that apartment.

As a defence to theft, colour of right may refer to the honest but mistaken belief by the accused that the property belonged to them. The accused that claims to have paid for the property or have had the property given to them would be employing a colour of right defence. The defence can be applied to theft, offences related to theft, break and enter, as well as other offences related to property such as arson. In order to secure a conviction, the Crown must prove that the accused had no colour of right and acted with intent to commit the offence.

What is a Testamentary Instrument?

Section 2 of the Criminal Code defines a testamentary instrument as “any will, codicil or other testamentary writing or appointment, during the life of the testator whose testamentary disposition it purports to be and after his death, whether it relates to real or personal property or both.” Put simply, a testamentary instrument is a piece of documentation that is used for transactions and has an amount of credit or promises credit. These may include wills, credit cards, or cheques.

A testamentary instrument is referred to in section 334(a), where if the property stolen is a testamentary instrument or has a value of more than $5,000, the offence is indictable. There are two types of offences in Canada: indictable and summarily elected. Crimes that are summarily elected have lesser punishments in comparison to indictable offences. Indictable theft over $5,000 may have a maximum penalty of ten years incarceration. Indictable theft under $5,000 have a maximum penalty of five years, while summarily elected theft under $5,000 has a maximum penalty of two years less a day in prison and/or a $5,000 fine.

Does the Value of the Theft Matter?

The value of the theft does matter. Depending on the value, it may be an aggravating or a mitigating factor. The Criminal Code itself also describes separate offences depending on the circumstances and the amount of theft. For example, s. 334(a) describes theft over $5,000, which is contrasted by s. 334(b) which is theft under $5,000. Theft under $5,000 can be summarily elected or indictable, while theft over $5,000 is strictly indictable.

There are different types of theft as well, and the value of the theft is often quantified in court. Section 333.1(1) describes motor vehicle theft, which may be prosecuted by indictment and comes with a mandatory minimum punishment of six months in prison or repeat offenders. In the Ontario Court of Justice case of R. v. Burrill, [2022] ONCJ 274, the offender stole bottles of hand sanitizer, and the Court found them to be worth less than $200. The offender was convicted of theft under $5,000.

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Recent Cases

R. v. Omakaro, 2022 ONCA 204

In the Ontario Court of Appeals case of R. v. Omakaro, the appellant alleged that the trial judge made an error. He submits that the fingerprint found on the Bluetooth speaker that the perpetrator attempted to steal was the only evidence, and that that evidence alone was not enough for a conviction. He appealed on the grounds that the trial judge did not account for the fact that speaker was portable and the complainant had roommates who could have access to the object. In addition, a police tracker dog had followed the perpetrator’s tracks to a nearby residence, whose resident the appellant suggests may have committed the crime.

The Court did not agree. Witness evidence by the complainant placed the appellant at the scene and commission of the crime. The complainant also regularly cleaned and disinfected the speaker, and testified that he was living alone. His roommates had not been in the same residence as him for a month. The Court of Appeals found that the trial judge was not being unreasonable in their finding of guilt. The appeal was dismissed.

R. v. Oliveros-Ortega, 2020 ONCA 716

In the Ontario Court of Appeals case of R. v. Oliveros-Ortega, the appellant was convicted of theft under $5,000. He appeals his sentence and conviction. The appellant had gone into a bank and passed the teller a note saying this is a robbery and demanding money. The teller gave the appellant $600, and refused to give the appellant any more. The appellant left the bank with the money. The appellant was originally charged with robbery, but the charge was dismissed. The appellant pled guilty to the lesser included offence of theft under $5,000.

The appellant appeals on the grounds that there was insufficient factual basis for the conviction. The Court of Appeal found the facts to be true, and since the appellant did not ask to set aside the guilty plea, still deemed that the appellant admitted responsibility for his actions. The Court of Appeals deferred to the sentencing judge despite possible immigration consequences for the offender, finding that the trial judge carefully considered the factors but still determined a fit suspended sentence of 12 months. Both the conviction appeal and the sentence appeal were dismissed.

R. v. Jackson, 2020 ONCA 407

In the Ontario Court of Appeal case of R. v. Jackson, a dog was stolen. The complainant and his former girlfriend disputed over the ownership of their dog, Carl, following a breakup. One day, the complainant woke up and saw a foot disappearing through his door. The complainant ran outside to search for a dog, seeing an SUV at the end of the driveway. The complainant recognized his girlfriend in the passenger seat. The complainant was unable to recover the dog and was badly hurt in the attempt to stop the SUV from leaving.

The trial judge found that the appellant, a friend of the complainant’s former girlfriend, committed the act of stealing the dog and fled from the apartment in a car driven by an unidentified person. A suspended sentence, two years of probation, ancillary firearm prohibition and DNA orders were ordered. The appellant appealed the conviction, saying that the verdict was unreasonable and the evidence circumstantial. The Court of Appeal found that these submissions were unacceptable, as the appellant did not challenge this evidence at trial. There was no need for intervention by the Court of Appeals. The conviction appeal was dismissed.

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.