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Defend Theft Under $5000

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Our Experience

Theft offences are common across the Province of Ontario, including in Mississauga. The consequences of a theft charge can vary significant from case to case based on several factors. These factors include but are not limited to, the accused’s prior criminal history, the value of the theft, the item stolen, the nature and circumstances of the theft and any other aggravating or mitigating factors the Court considers relevant.

Donich Law has experience representing clients charged with various theft offences of various values across Ontario and regularly obtain favourable results for our clients. The Firm regularly resolves theft matters without a criminal record for the accused, and in some cases by way of withdrawal. Where a theft charge is withdrawn, it is also possible to have the accused’s fingerprints and photographs destroyed.

In 2017, the Firm represented a bank employee who was terminated from the bank and arrested for theft in the case of R. v. D.D. [2017]. The client, a CIBC bank teller, was charged after loss prevention at the bank witnessed the employee taking cash out of a drawer and stuffing it into their bag during a shift. In total, the employee was alleged to have taken roughly $18,500. The Firm negotiated with the Crown for some time before scheduling a judicial pre-trial. Crowns are often unwilling to offer a favourable deal in cases involving high value theft from an employer. The Firm reached out to a CIBC representative and had them attend a judicial pre-trial, ultimately resolving the matter without a criminal record, which unusually lenient.

In 2023, the Firm defended a client who was terminated from his long-time place of employment and arrested after his company alleged theft in the case of R. v. M.F. [2023]. Witnesses from the company provided evidence to police indicating that they had suspected the individual for some time prior to reporting the issue to police. It was alleged that the employee was engaging in ongoing fraud and theft and had removed product from company property. The Firm reviewed surveillance footage as well as witness statements to police to uncover various discrepancies in the information provided to police. The Firm leveraged these discrepancies to secure a withdrawal of the theft under $5,000 charge.

Stealing from or defrauding an employer typically results in increased penalties in Canada. Individuals who commit such an offence will be charged with theft over or under $5,000 depending on the value of the theft, however the Crown will note the circumstances of the theft as aggravating. Employers place their employees in a position of trust and authority and the Court views a violation of that trust as aggravating. This makes theft from work cases more difficult to resolve favourably.

Punishments for Theft Depend on the Value of Property

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Theft is a crime against property that is non-violent. Theft is one of the most common offences in Mississauga. Generally, there are two kinds of theft: theft under $5,000 and theft over $5,000. The Peel Regional Police reported 10,149 cases of theft over and under $5,000 in 2021. The number rose to 11,780 cases in 2022. In 2021, Statistics Canada reported the Peel Region’s theft incidents comprised of 3.49% of Ontario’s total theft incidents under $5,000. A large portion of theft in Canada occurs in Ontario. Ontario’s incidents of theft over $5,000 comprises of 31.12% of incidents of theft over $5,000 in Canada. The incidents of theft under $5,000 in Ontario comprises of 42.33% of incidents in Canada.

In 2020, Donich Law defended an employee charged with theft over $5,000 in R. v. E.K. [2020]. The employee was fired and reported to law enforcement after an alleged $30,000 worth of merchandise went missing from the company. The employer alleged that the accused as well as another employee had been engaged in an organized theft ring targeting the company. The Firm reviewed the evidence provided by the Crown including surveillance footage. The surveillance footage raised doubt regarding who was responsible for the theft. The Firm advanced evidence to show that the other employee, the accused’s manager, had been the leader of the theft ring and had attempted to shift blame to the accused. The Firm ultimately secured a withdrawal of the theft over $5,000 charge.

How to Defend Theft Under $5000

In addition to theft from work, shoplifting and theft ring offences are often common across Ontario, including in Mississauga. The Firm has represented individuals from all walks of life charged with shoplifting offences, from doctors to bank employees. We regularly resolve shoplifting cases without a criminal record for our clients.

In 2016, the Firm represented a licensed physician accused of stealing men’s clothing from The Bay stores in R. v. S.Y. [2016]. The client was caught by loss prevention staff allegedly attempting to leave the store with roughly $3,000 in merchandise that had not been paid for. As a regulated professional, the client faced additional consequences from his regulator. The Firm secured a withdrawal of the charges and had the client’s fingerprints and photographs destroyed, protecting him from his professional regulator.

In the case of R. v. J.W. [2020], the Firm secured the withdrawal of a theft over $5,000 charge. The client was reported to police by his Condominium Board after they discovered he had taken a master key to the building. Prior to discovering who committed the theft, the Condo Board discovered the key missing and were forced to re-key the entire outside of the building for safety reasons, costing over $15,000. Upon discovering it was a resident, the Condo Board attempted to recoup its costs and reported the client to police when they were unable. The Firm resolved the matter without the client having to repay the amount.

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Frequently Asked Questions

What are the Common Types of Disclosure in Theft in Mississauga?

The Crown’s duty to disclose is a principle of fundamental justice. The right to disclosure gives the accused right to know the case to meet and the right to make a full answer and defence. Commonly, disclosure includes any piece of evidence that may be relevant to the case. These things can include transcripts or recordings of 911 calls, police on-the-scene reports, complainant statements, officer notes, the accused’s criminal history, and an accused’s statement should the accused offer one.

Complications regarding who owns the property may ensue during a case. Disclosure may include relevant documentation regarding ownership of the property in question. Photographic evidence as well as video evidence relevant in the case may also be utilized. The Court may also ask for proof of ownership and value of the property under section 657.1 of the Criminal Code.

Why Does Disclosure Take so Long?

Disclosure may take a long time to complete, as procedural rules must be followed. First, the police in Mississauga will gather evidence and run a background check on the accused. Any criminal record the accused may have will be in the disclosure. The police then send the information to the Crown, who then processes it. The Crown will screen and vet the files for a position, at the same time redacting any sensitive information in the case. They will then begin providing disclosure material to the accused as it becomes available. Disclosure is typically not received all at once.

Depending on the aggravating and mitigating circumstances of the offence, the Crown may either proceed by summary election or by indictment. There are different penalties for each election, and penalties may be more severe if the Crown proceeded by indictment. Where the case is more complicated, the disclosure process is likely to take longer.

What is the Process of Getting Disclosure in Oakville?

The Criminal Code is a federal piece of legislation, meaning that its jurisdiction covers all provinces. As such, most criminal court proceedings are standardized across provinces. However, there are still minute differences different local courts and crown offices may employ. With the advent of technology, many types of disclosure can be delivered electronically, though procedures vary between jurisdictions.

To begin an application for disclosure, a counsel or representative of the accused must speak with the Crown’s office and submit a request. The Crown’s office will then direct counsel on how to receive and obtain it. A delay in disclosure and a prolonging of the case may violate the accused’s right to be tried within a reasonable time. If this happens, the accused may be able to apply for a section 11(b) stay of proceedings.

What are some Aggravating and Mitigating Factors for Theft?

Aggravating and mitigating factors are factors during sentencing that the Court would consider in determining a fit and proper sentence. Section 718 of the Criminal Code codifies the purposes and principles of sentencing for criminal offences. By codifying these principles, the Criminal Code brings greater clarity and consistency to the sentencing process. These principles are, but are not limited to: denunciation and deterrence, separation from society, and rehabilitation. As theft is a non-violent crime, rehabilitation may be emphasized during sentencing if the judge deemed there were enough mitigating factors.

An aggravating factor may be a criminal record; a pattern of criminality means the offender had a lesser chance at rehabilitation and a higher chance of engaging in the criminal system again. A breach of trust is also an aggravating factor. For example, if an employee stole from their job, they have breached the trust their employer has given them. If the person is in a position of trust or authority and or has a relationship with the complainant, this may be an aggravating factor. A lack of recovery of items or the offender’s inability to compensate the owner may be an aggravating factor as well. The value is items taken may be mitigating where the value was low and aggravating where it was high.

Neutral factors or other factors to consider would be any history of substance use, mental health issues or abuse. These may contribute to the type of sentencing a court may offer, as counselling services and help may be suggested to the offender.

What are the Penalties Associated with Theft?

Theft has no mandatory minimum penalties. Theft may result in jail time but depending on the mitigating factors may result in either a suspended sentence, a discharge or diversion. For offences such as shoplifting or low value theft, if the accused has no prior record they may be offered discharges, suspended sentences, or fines.

The offence of theft over $5,000 enumerated in section 334(a) of the Criminal Code is indictable and may result in a maximum penalty of 10 years incarceration. Section 334(b) describes theft not exceeding $5,000 and is a hybrid offence. This means that the Crown may elect to proceed summarily or by indictment. If the Crown chose to proceed by indictment, the maximum sentence may be five years incarceration. If the Crown chose to proceed by summary election, the accused may be subject to a maximum penalty of two years less a day in prison and/or a up to $5,000 fine. The offence of theft over $5,000, is also a secondary designated offence listed under s. 487.04(a). This means that a DNA order is discretionary, left up to the decision of the Court. In addition, ancillary orders such as restitution orders and victim fine surcharges may be entered.

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Recent Cases

R. v. Thakur, 2020 ONSC 8198

In the Ontario Superior Court Case of R. v. Thakur, the accused pled guilty to one count of theft under $5,000. The accused was involved in a sting operation by the Durham Regional Police Service against Husen Aswat, a police officer. The accused was a friend of Aswat’s. Aswat received $5,000 cash in a bag as a part of the sting operation, but the bag’s contents really belonged to the DRPS. The accused believed the bag to be from a drug dealer, who left it in an Uber. Aswat reported the bag, but kept the money and shared it with the accused to buy a fishing boat.

Both parties agreed that there should be a discharge, but disagreed on whether it would be absolute or conditional. During sentencing, the Court enumerated the sentencing principles that were most pressing as denunciation, deterrence, and promoting responsibility for the offence. The Court took note of the offender’s particular circumstances, where he had various accomplishments as a member of the DRPS. His relationship with his co-accused was dysfunctional. The mitigating factors of the offence included the lack of a prior record, a guilty plea, the full restitution, his acceptance of responsibility, and his resignation from the DRPS. The offender was absolutely discharged, and the boat returned to him.

R. v. Ralston, 2019 ONCJ 488

In the Ontario Court of Justice case of R. v. Ralston, the accused was charged with mischief, theft under $5,000, break and entry and theft, and breach of a recognizance of a bail condition. After a call to the police from a neighbour, the accused was arrested. He was observed carrying a number of bags. The accused had been in a relationship with the complainant for five years before separating. The accused was not in the home with the complainant’s consent, as the complainant had locked the door before she left for work that morning.

The accused had claimed that several items in the suitcase were his but had removed them from the complainant’s home. The accused also did not provide any evidence or proof of ownership of the properties. The trial judge also did not find any air of reality to the accused’s testimony. Pursuant to the Kienapple principle that a person cannot be convicted of two offences as a result of the same act, and the separate charge of theft was stayed.

R. v. Farkas, 2019 ONCA 108

In the Ontario Court of Appeals case of R. v. Farkas, the appellant pled guilty to theft from mail contrary to s. 356 of the Criminal Code. He appeals now due to the factor that he was uninformed, as he was not aware of the immigration consequences of the conviction for that particular offence. Both parties had agreed that if the appellant had been properly informed, he would have pled guilty to the included but lesser offence of section 334(b) of the Criminal Code of theft under $5,000.

Section 686(1)(b) of the Criminal Code gives the Court of Appeal the power to dismiss appeals. An appeal can be dismissed on the grounds that: there was no error in the proceedings, there was an improper conviction on certain counts but otherwise the other appeals for the remaining counts are dismissed, there was no substantial wrong or miscarriage of justice, and/or that the accused did not suffer any prejudices despite procedural irregularities. This does not mean, however, that the appellant did not achieve their goals. The appeal is dismissed on the Crown’s consent, and the conviction of theft under $5,000 substituted the conviction of theft from mail.

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.