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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

While theft offences are typically considered less serious compared to many other criminal offences, being convicted of a theft offence can still have a negative impact on an individual’s life even well after their conviction. When an individual is charged with a criminal offence they will have to attend court to resolve the matter either through a trial or by way of a guilty plea.

There are many different outcomes in a theft case once the accused has been found guilty. An individual may be sentenced to a period of custody in serious cases or cases involving a large sum of money or a breach of trust. They may be given a suspended sentence, where the court suspends the passing of a sentence and places the offender on a period of probation. The court may also grant either an absolute to conditional discharge, which is a finding of guilt, but does not result in a criminal record for the offender. In some cases, a withdrawal of the charge(s) is also possible. Hiring experienced legal counsel can help increase the likelihood of resolving a matter in a favourable way.

Donich Law has experience defending clients charged with a wide array of theft offences including shoplifting, retail theft and fraud rings, as well as more serious cases of theft and regularly obtain favourable results for our clients, including regularly resolving matters without a criminal record for our clients.

In 2020, the Firm defended a client accused of stealing from and defrauding Home Depot stores over a period of time in R. v. M.K. [2020]. The client was charged with 13 fraud and theft offences with the value of the alleged offences totaling roughly $5,000. The individual was caught after sophisticated loss prevention staff uncovered a theft ring inside their store and traced it back to the client. The Crown initially took a harsh position on sentencing given the number of charges and pattern of crime established by the accused. The Firm negotiated for a significant period of time before successfully resolving the matter.

Theft is commonly categorized into either theft under $5,000 or theft over $5,000. In 2021, Statistics Canada reported 194 incidents of theft of $5,000 in the municipality of London, Ontario. More minor thefts have occurred than theft over $5,000, as theft under $5,000 had 3,528 incidents in 2021 in London. The London Police reported 10,016 total cases of theft in 2021 in their Crime Statistics. Theft, as a non-violent and non-sexual crime, may be prosecuted by either indictment or summarily conviction. Often, the amount stolen in a theft is a great determining factor on the consequences of the case. It is important in theft cases to retain a lawyer immediately following an arrest.

Punishments for Theft Depend on the Value of Property

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In 2020, the Firm represented a client who had been reported for theft by the Condo Board of the condominium he lived in the case of R. v. J.W. [2020]. The Condo Board had initially launched an investigation after a master key went missing from the front desk of the lobby of the building. Not knowing who had taken the key, the building made the decision to re-key all outside doors of the building for safety reasons. The cost of the work was over $15,000. After reviewing surveillance footage, the building discovered it was the client, a resident of the building, who had taken the key. They attempted to recover the $15,000 from the client and when they were unable, they went to police. The Firm engaged in several Crown pre-trials on the matter, convincing the Crown that the matter was a civil one, not a criminal one. The matter was withdrawn, and the client avoided reimbursing the Condo Board.

Theft from one’s employer is among the most common types of theft in Canada. While the Criminal Code does not contain an offence specific to stealing from one’s employer, this will be seen as an aggravating factor in any theft case. When an employer hires an employee, they place a certain amount of trust and authority in that person. Violating a position of trust or authority with the intent to commit any crime is aggravating. As a result, those accused of stealing from their employers are more likely to face more severe consequences including potential jail time if convicted. Further, having a record for theft may make it more difficult for an individual to obtain employment in the future.

How to Defend Theft Under $5000

In 2020, the Firm defended another individual accused of stealing roughly $30,000 from her employer in the case of R. v. E.K. [2020]. The accused was charged with theft over $5,000 which is a straight indictable offence. This means an offender will face more severe penalties if convicted. Police and the Crown alleged that the client had been consistently stealing merchandise from her place of employment along with another employee. The Firm uncovered evidence to prove that the client’s manager had been the ringleader of the plot and had tried to pass blame on other members of the staff. As a result of this evidence, the charge with withdrawn.

In 2021, the Firm represented an individual accused of committing time theft in R. v. K.S., [2021]. The accused was charged with theft over $5,000 and falsifying employment records. Time theft occurs when an employee falsely collects wages for hours they did not work. This can occur in several different ways, including incorrectly punching in and out of work, gaining access to an hour log and make changes to it without authorization, or claiming to work hours one did not work. In this case, the client was accused of using his managers computer credentials to log into the company system and add in hours to his time sheet totally more than $15,000. The Firm presented evidence to show that the manager had provided his log in credentials and that the accused had worked the hours in question at home. The Crown ultimately dropped the charges.

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Frequently Asked Questions

What Interrogation Techniques Commonly Employed by Police?

In situations of theft, the police will typically have some evidence from a third party. These can be witness reports, complaints of the rightful owner, or 911 dispatch calls. In cases of motor vehicle theft under section 333.1(1), the car may be a key piece of evidence. When the police place a suspect under arrest for theft, they may wish to recover the stolen property. The police have a variety of investigative techniques and may lie to the accused or interrogate them to get more information.

The police cannot lie to the suspect about their rights. When a suspect is placed under arrest, the police must disclose to them their rights. Section 7, 9, 10, and 11 of the Canadian Charter of Rights and Freedoms ensures that the accused will have fundamental rights that will prevent any miscarriage of justice during the proceedings. Section 7 of the Charter promises life, liberty, and security of the person. Section 9 promises the accused the right not to be arbitrarily detained or imprisoned. Section 10 ensures that everyone has the right to retain counsel. And section 11 ensures the right to be informed without delay of the charge. It is important for the accused to get a lawyer as soon as possible so that they can ensure their rights are not being infringed.

What are Some Ancillary Orders on Sentencing for Theft?

A forfeiture order forces the offender of a crime of theft to surrender the property related to the offence. Section 490.1 of the Criminal Code gives the Court power to order a forfeiture order. There are three different types of forfeiture orders: (1) forfeiture orders related to proceeds of crime, (2) forfeiture orders related to things seized, or (3) forfeiture orders related to offence related property.

In order for a forfeiture order to be entered, the Crown must satisfy the Court that the property is related to the commission of the offence. For example, if a person produces illegal methamphetamine in a home and has an extensive lab set-up, the Court may see the house as an offence related property. The offender may be ordered to forfeit the house upon a conviction.

Theft over $5,000 may also be subject to a DNA order. A DNA order is an order by the Court to provide a sample of a bodily fluid to be registered in the national databank. DNA orders are entered depending on the type of offence. Offences are categorized as primary designated offences, which make DNA orders mandatory; or secondary designated offences, which leave DNA orders up to the discretion of the Court. DNA orders for theft offences are rare.

What are the Sentencing Principles in London?

Sentencing principles serve as the foundation for the process of sentencing. Sentencing is a very individualized and unique process, tailored to fit the offender. Section 718 of the Criminal Code details the purpose and objectives of sentencing as maintaining a safe society by imposing fit sentences with one or more goals of: denunciation of unlawful conduct, deterrence of further offence, separation of offenders from society (if necessary), rehabilitation of the offenders, provide reparations for harm, and promote a sense of responsibility.

The principle of rehabilitation plays a key part in sentencing theft cases. As theft is a non-violent and non-sexual crime, the court will usually deem longer sentences to be too harsh. Unless there are major aggravating factors such as misuse of a position of trust or authority, abuse of vulnerable persons, large amounts of theft, or ancillary offences, theft by itself does not usually incur the court to separate the offender from society.

What if I am a First-Time Offender?

During sentencing, the Court will usually consider mitigating and aggravating factors. The lack of a prior criminal record is always a mitigating factor. It is not in the public interest to give criminal records for very minor offences. Minor cases of theft and theft-related offences such as shoplifting combined with a first-time offence increase the likelihood that the offender will get a diversion or a discharge. A diversion may include a Direct Accountability Program (DAP) that the offender would have to complete. The completion of this program may require reparative actions such as taking anti-theft courses, writing apology letters, or paying restitution. Once the DAP is completed, the Crown will withdraw the charge.

Will I Be Required to Pay Restitution in London?

A restitution order requires an offender to pay a sum of money to the victims of the case. Under section 737.1(1) of the Criminal Code, a sentencing judge is required to consider restitutions for the victim(s) when convicting or discharging the accused.

Section 16 of the Canadian Victims Bill of Rights also says the victim has a right to make the court consider a restitution order against the offender. It is the obligation of the court to canvas the victim and ask for their input. Restitution orders are often decided on a case-by-case basis. Some complainants may not wish for the court to enter a restitution order.

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Recent Cases

R. v. Gibson, 2020 ONCJ 389

In the Ontario Court of Justice case of R. v. Gibson, the accused was at a Home Depot when four loss prevention officers intercepted him, believing he had stolen two tool batteries. The four loss prevention officers proceeded to attempt a citizens’ arrest, but the accused did not cooperate. An altercation ensued where the accused brandished a knife. He was charged with theft, threatening death, assault with a weapon and robbery.

The Court found the issue of the case to be whether or not the Home Depot employees were sufficiently credible and reliable enough to prove the allegations, and if they were legally justified to conduct a citizens’ arrest. The court found that the four men’s accounts were consistent and reliable, and though they did discuss with each other on the matter beforehand, all except one were honest about this communication. However, none of the witnesses were able to satisfy the court based on their testimony that they saw the accused put the tool batteries under his sweater. The accused was acquitted of theft and robbery, but convicted of threatening death and assault with a weapon.

R. v. Barry, 2019 ONCA 257

In the Ontario Court of Appeal case of R. v. Barry, the appellant was convicted of three thefts from one store and found not guilty of two thefts from another store. The trial judge imposed a sentence of six months’ imprisonment, on the basis that the three counts of theft each deserved a two-month sentence, along with two years’ probation, and a victim’s surcharge of $600. The appellant sought to appeal the conviction and the sentence.

The appellant argued that video surveillance footage was too unclear to identify her as the woman. The Court of Appeal noted that two witnesses testified to the thefts at the store. The trial judge accepted the witness evidence in combination with the surveillance footage. The appellant’s criminal record was also an aggravating factor, and the appellant appealed the sentence on the grounds that it should have been a conditional sentence due to her medical condition. The victim surcharge was struck in pursuant to R. v. Boudreault, [2018] SCC 58. The Court of Appeals considered the conditional sentence, but decided against granting the appeal, as the appellant had 67 prior convictions and the trial judge’s reasoning was sensible. The sentence of six months’ imprisonment was stayed.

R. v. Pavao, 2018 ONCJ 761

In the Ontario Court of Justice case of R. v. Pavao, the accused allegedly stole a purse from the complainant while he was riding by on a bicycle. The purse contained $500 the complainant just withdrew from the bank. During their brief altercation, the accused’s mask slipped off and the complainant recognized the man as someone she knew. The accused was charged with assault causing bodily harm, theft, and having his face masked with intent to commit indictable offence. The appellant was convicted.

The dispute is whether or not the accused was the actual perpetrator of the offence. The complainant’s testimony was called into question. The defence was one of an alibis but evidence and the timeline did not properly support it or give it credibility or an air of reality. The trial judge believed that the complainant’s evidence was credible and straightforward, coherent, and responsive. The defendant was found guilty of the three counts.

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.