FIRST OFFENDER? DEFEND THEFT CHARGES IN KITCHENER.  1-866-DEFENCE.

Theft is one of the most common offences individuals are charged with in Kitchener and across Ontario. In some cases, individuals make honest mistakes and end up charged with a criminal offence and in other cases they are wrongfully accused. Others may simply have made a bad decision. Donich Law has experience defending individuals from all backgrounds charged with an array of different offences. We can assist you in creating the best strategy to defend your case and will ensure your rights are protected at every step of the process. In some cases, for first time offenders, we have been able to resolve matters without a criminal record for our clients.

We have represented those accused of stealing from various retailers across Ontario including Winners, Sephora, Home Depot, LCBO, Shoppers Drug Mart, Loblaw, Holt Renfrew, the Bay, the Toronto Eaton Center and Yorkdale Mall. We have experience negotiating directly with retailers to avoid the involvement of law enforcement and have settled many matters successfully without criminal charges being laid.

In R. v. Z. U. [2018], the Firm represented an individual accused of laundering foreign proceeds and charged with nine fraud offences. The accused was alleged to have stolen money from elderly individuals and converted the money into Gold Bullion. The investigation into the scheme involved law enforcement in both the United States and Canada. After vigorously litigating the matter, the Firm secured a stay of proceedings on all nine charges.

In R. v. S.A. [2017], the Firm defended a Canada Post employee charged with four fraud offences after allegedly attempting to defraud a major bank out of approximately $50,000. After some negotiation, the Firm was able to resolve the matter without a criminal record for the client.

In 2016, the Firm represented an individual alleged to have stolen several thousand dollars’ worth of Blue Jays Merchandise from the Rogers Center while participating in an employee theft ring. The Firm was able to resolve the accused’s theft charges without a criminal record.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

What is Theft?
What is Possession of Property Obtained by Crime?
What is Shoplifting?
What is the Difference Between Fraud and Theft?
What are the Penalties for Motor Vehicle Theft in Kitchener?
What are the Best Defences to Theft in Kitchener?
What are the Penalties for Theft in Kitchener?

Additional Resources

Assault
Assaulting a Peace Officer
Sentencing Factors
Keeping Your Charges Private
Release from Police Custody
Theft From Your Employer
Resolving Shoplifting Charges
U.S. Waivers
Vulnerable Sector Screening
Consequences of a Criminal Record
Immigration Consequences
Elements of a Crime
Your Rights

What is Theft?

Section 322(1) of the Criminal Code outlines the offence of theft. It states that an individual is guilty of the offence when they fraudulently or without colour of right, take or convert to their own use or someone else’s use, any item or thing, with the intent to deprive the rightful owner or someone with a special property interest in the item or thing, or pledge it or deposit it as security, or deal with it in such a way that it cannot be restored to the condition it was in before it was taken or converted, or part with the item or thing under a condition of its return that cannot be fulfilled. Theft offences are divided into two categories based on the value of the items taken or converted. If the items stolen have a value exceeding $5,000, the accused will be charged with theft over $5,000. If the value of the items stolen does not exceed $5,000, the accused will be charged with theft under $5,000.

What is Possession of Property Obtained by Crime?

In many cases, those charged with theft are also charged with possession of property obtained by crime. Section 354(1) of the Criminal Code outlines the offence. It states that an individual is guilty of the offence when they have in their possession, any property or thing, or proceeds of any property or thing, knowing that part or all of the property or thing was obtained by, or derived from, either directly or indirectly, the commission of an indictable criminal offence, or an offence committed outside of Canada that would be considered an indictable offence in Canada. Individuals caught shoplifting who still have the stolen items when they are arrested are commonly charged with this offence. Similarly, those found to be in possession of a stolen vehicle will often be charged with both motor vehicle theft and possession of property obtained by crime.

Possession of property obtained by crime is a dual procedure offence. This allows the Crown to elect to proceed by indictment or summarily, depending on the nature and severity of the allegations and the value of the items taken.

In cases involving property valued at over $5,000 or where a testamentary instrument was stolen, and the Crown chooses to proceed by indictment, the accused will face a maximum of ten years in prison. Where the value of the property exceeds $5,000 or a testamentary instrument was stolen and the Crown proceeds summarily, the accused will face a maximum of two years less a day in prison, and/or up to a $5,000 fine. Where the value of the items taken is less than $5,000 and the Crown proceeds by indictment, the accused will face up to two years in prison. If the value of the property is less than $5,000 and the Crown proceeds summarily, the accused will face up to two years less a day in prison, and/or up to a $5,000 fine.

What is Shoplifting?

In Canada, there is no separate offence for shoplifting. Rather, shoplifting is a specific type of theft. Those who are caught shoplifting will be charged with either theft under $5,000 or theft over $5,000 depending on the value of the items taken. Additionally, if the stolen items or proceeds of the stolen items are in the possession of the offender, they may also be charged with possession of proceeds obtained by crime.

What is the Difference Between Fraud and Theft?

Theft and fraud are very similar offences and contain many of the same elements including the requirement that the accused took or converted something unlawfully. However, fraud contains an additional element. The gain a fraud conviction the Crown must also prove that the accused took steps to conceal their unlawful actions.

What are the Penalties for Motor Vehicle Theft in Kitchener?

Motor vehicle theft is contained in its own section of the Criminal Code, making it distinct from common theft. Section 333.1(1) of the Code states that an individual is guilty of motor vehicle theft when they commit theft and the property stolen is a motor vehicle.

Motor vehicle theft if a hybrid offence, allowing the Crown to have discretion regarding the maximum penalty imposed on those convicted. If the Crown proceeds summarily the accused will face a maximum of two years less a day in prison. Where the Crown proceeds by indictment, the accused will face a maximum of ten years in prison. Where an accused is convicted of a third or subsequent offence, they will be liable to a mandatory minimum six months in prison.

What are the Best Defences to Theft in Kitchener?

If you have been charged with theft in Kitchener, Donich Law can assist you in developing the best defence for your case. Each defence will need to be unique based on the facts of the case. Defences commonly used to beat theft charges in Kitchener include arguing colour of right or arguing that the accused had an honest but mistaken belief that they had colour of right in the item(s) taken.

An individual has colour of right in an item when they have a legal interest in the item. If an accused was charged with theft for being in possession of an item that does not belong to them, but the item does in fact belong to them and they can prove it, they will be able to beat the charge. For example, if an individual is accused of shoplifting but in fact paid for the item, they may be able to produce the receipt and prove that they are not guilty of the offence with which they have been charged.

An individual charged with theft may also argue that they had an honest but mistaken belief that they had colour of right in the property. To use this defence the accused must prove that they honestly believed they had a lawful right to possess the item when it was taken.

What are the Penalties for Theft in Kitchener?

Theft over $5,000 and theft under $5,000 are both hybrid offences. This allows the Crown to elect to proceed summarily or by indictment, depending on the nature and severity of the allegations and the value of the item(s) taken. The Crown will proceed by indictment in cases involving higher value thefts or where there are aggravating factors in the case. On the other hand, the Crown will proceed summarily where the value is low and there are mitigating factors in the case.

Where an individual is charged with theft under $5,000 and the Crown elects to proceed by indictment, an accused will face up to two years in prison. Where an individual is charged with theft under $5,000 and the Crown proceeds summarily, an accused will face a maximum of two years less a day in prison, up to a $5,000 fine, or both. Where an individual is charged with theft over $5,000 and the Crown elects to proceed by indictment, the accused will face a maximum to ten years in prison. Where the Crown proceeds summarily, the accused will face a maximum of two years less a day in prison, up to a $5,000 fine or both.

Quick Facts

What is Theft?

An individual commits the offence of theft when they fraudulently or without colour of right, take or convert an item or thing with the intent to deprive the rightful owner or someone with a special property interest of it, or pledge or deposit it as security, or deal with it in such a way that it cannot be restored to the condition it was I before it was taken or converted, or part with it under a condition of its return that may not be possible to fulfill.

Will I go to Jail for Theft?

Whether or not an individual will be given a custodial sentence for a theft charge will depend on a number of factors. For example, the Court will look at the nature and severity of the allegations against the accused, the criminal history of the accused and any mitigating or aggravating factors that exist.

Will I go to Jail for Motor Vehicle Theft?

In some cases, yes. Motor vehicle theft is more serious than common theft and those convicted are generally sentenced more harshly. Sentences for those convicted range from two years less a day in prison to ten years in prison in the most serious cases.

What is Shoplifting?

Shoplifting is a specific type of theft. An individual who shoplifts will be charged with either theft over $5,000 or theft under $5,000 depending on the total value of the item(s) taken. Additionally, those charged with theft for shoplifting may also be charged with possession of property obtained by crime if they still have the stolen items in their possession.

What are Common Penalties for First Time Offenders?

Generally, those who are convicted of a first offence will not be sentenced to a period of incarceration, except for in the most serious cases. A first-time offender charged with theft will more commonly be sentenced to a period of probation, a fine or community service. In cases involving very minor theft offences, it is sometimes possible to resolve the matter without a criminal record.

What if I Stole from my Job?

While there is no separate offence for stealing from one’s employer in the Criminal Code, those alleged to have stolen from their job will often face more serious consequences than someone who committed common theft. The employment context of the theft will act as an aggravating factor in the case which may justify more severe penalties upon conviction.

What if I was Caught Shoplifting but not Charged?

In some cases, those who are caught shoplifting will be issued a trespass notice, prohibiting them from returning to the premises, but not charging with theft. Police departments in various jurisdictions throughout the GTA have adopted this policy. If you have been caught shoplifting and issued a trespass notice, it is important not to return to the property again, as criminal charges could be laid if the notice is violated. If charges were not laid initially, it is unlikely that the police will choose to lay charges at a later date.

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