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Defend Theft Under $5000

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Our Experience

Theft offences are committed by people from all walks of life in Newmarket and across Ontario. The Firm has experience representing everyone from doctors to students and young people charged with committing theft. Many times, people make a bad decision and find themselves in legal trouble as a result. This does not mean they are bad people and in most cases, it can be rectified. The Firm regularly resolves theft cases without a criminal record and in many cases with a withdrawal. Where the Firm secures the withdrawal of a theft charge, we are also often able to destroy the client’s fingerprints and photographs as well.

In 2021, the Firm represented two young individuals charged with theft after stealing from a local grocery store in R. v. D.H. [2021] and R. v. M.S. [2021]. The friends were charged as co-accused after stealing in an attempt to keep their failing business afloat during the Covid-19 pandemic. The individuals were seen by loss prevention staff, reported to police, and arrested. The Firm engaged in pre-trial discussions with the Crown providing context to the offence, leading to a withdrawal.

In 2016, the Firm successfully resolved a theft and fraud case valued at $1,500 in the case of R. v. C.T. [2016]. The accused was alleged to have stolen merchandise from The Bay, where they worked. The Firm engaged in lengthy Crown pre-trial discussions and resolved the matter without a criminal record for the accused, despite the aggravating factors involved.

In the 2021 case of R. v. J.W. [2021], the Firm represented an individual reported to police by his Condo Board after allegedly stealing a master key to the building. As a result of the alleged theft, the building was forced to pay over $15,000 to re-key the outside of the building for security reasons. The Board attempting to recoup the funds from the resident upon discovering he had been the one to take the master key. The resident refused to pay and was reported to law enforcement. The Firm provided evidence to the Crown and to police to demonstrate that the matter was a civil one. The charges against the accused were withdrawn and the matter was resolved without the client having to pay anything out of pocket to the Board.

In addition to first time offenders, the Firm also regularly defends those with prior criminal history and those accused of participating in sophisticated schemes to steal and defraud businesses. In some cases, the individuals participating in these schemes are employees of the business being targeted. Where the accused is also an employee, that will further complicate matters as stealing from an employer will be considered an aggravating factor in the case.

Punishments for Theft Depend on the Value of Property

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Newmarket is a town in the York Region that boasts a population of over 85,000 people. In 2021, 8,291 incidents of theft under $5,000 were reported by Statistics Canada. The York Regional Police reports that Newmarket has a rate of 150.99 cases of theft over $5,000 per 100,000 of the population, and 1,012.08 cases of theft under $5,000 per 100,000 of the population.

In the 2017 case of R. v. S.A. [2017], Donich Law successfully defended a Canada Post employee accused of theft and fraud targeting the Bank of Nova Scotia. The employee had allegedly acquired fake identification documents as well as fake tax documents and used them to open bank accounts and a personal line of credit. Her scheme was discovered by staff at the bank and reported to law enforcement. The Firm ran a contested plea hearing and secured a conditional discharge on the more minor charges and a withdrawal of the more serious charges.

In 2019, the Firm successfully defended an individual accused of committing fraud and theft against their employer totaling more than $170,000 in R. v. O.I. [2019]. With the value being so high, the Crown’s initial position was a period of custody upon conviction. The case also involved a civil element where the company was attempting to recover their loss from the employee. The Firm was able to exclude a significant portion of the alleged loss and resolved the case without a criminal record.

How to Defend Theft Under $5000

In 2021, the Firm represented an employee accused of committing time theft in R. v. K.S. [2021]. The accused’s employer alleged that he had stolen his manager’s computer credentials and used them to log into the company’s hour system and add in hours that he did not work, causing him to be paid an additional $15,000 that he was allegedly not entitled to. The accused was charged with theft over $5,000 and falsifying employment records as a result. The Firm uncovered evidence to prove that the employee had been given permission by his manager to log into his account and add the hours for work the accused had completed at home. The Firm secured the withdrawal of both charges.

In 2020, the Firm successfully resolved a theft case valued at $30,000 in R. v. E.K. [2020]. The client, an employee, had allegedly been participating in a large internal employee theft ring. As a result, the accused was reported to police and charged with theft over $5,000. The Firm uncovered evidence to show that the accused’s manager had really been responsible for the theft and had attempted to shift blame to lower level employees. As a result of this evidence, the Crown withdrew the theft over $5,000 charge against the client.

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Frequently Asked Questions

Can I Travel with a Theft Conviction in Newmarket?

The terms of travelling with a conviction is very similar for most holders of a criminal record. Every country has the right to deny any foreigner entry. The Immigration and Nationality Act the United States has is very strict in denying offenders with a criminal record entry into the country, as they are inadmissible due to their criminality. Anyone who commits an offence of “moral turpitude” is not allowed. These offences of moral turpitude include any “act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general”. These offences may include but is not limited to: fraud, assault, arson, break and enter, robbery, extortion, etc. The United States takes their national security very seriously. An exemption to this rule would require a waiver from the Attorney General.

Theft is often seen as a lower level offence, as it is a non-violent and non-sexual crime.  Theft may not result in a criminal record, as an offender is more likely to be granted an absolute or conditional discharge. That being said, a conditional discharge is still recognized by the United States as a conviction. If a person is worried about their conviction and the consequences of travelling, they may apply for a United States waiver.

How Do I Keep My Charges Private in Newmarket?

Theft is not usually a conviction that gains a lot of media attention. Theft under $5,000 is one of the most common crimes in Newmarket. During a bail hearing, or at any point in the criminal process, a justice may order a publication ban. The purpose of the order is to protect information from being released to the public.

There are three types of publication bans enumerated in the Criminal Code. One is found in section 486.4(1), which prohibits distribution of information about a victim or a witness in a sexual offence case. Section 486.5(1) is a publication ban to protect the identity of any victim or witness. Finally, section 517(1) prohibits the publication of any information relayed for the accused’s bail hearing or any point thereafter. A defence lawyer would typically get a section 517(1) publication ban for the accused at the bail hearing or at the earliest possible convenience.

A charge may also be kept private by retaining a lawyer who can attend court for you in Newmarket. A lawyer will be able to attend most court appearances on the accused’s behalf to assist them in maintaining anonymity.

Can I be Charged with Theft Even Though I Have Not Left the Store?

In section 322(2) of the Criminal Code, the moment when theft occurs is defined in the statute. Theft occurs the moment a person with the intent to steal moves an object or begins to cause it to be moved. If law enforcement or authorities suspects that a person is moving an object with an intent to steal it, they may arrest the person. For example, if an accused person is seen taking an item off the shelf and placing it into their pocket in an attempt to conceal it, that individual has committed theft.

The accused was intercepted by four loss prevention officers at a Home Depot in R. v. Gibson, 2020 ONCJ 389. He was accused of stealing two batteries, and the four employees attempted to conduct a citizens’ arrest. An altercation happened, and the accused was charged with theft, threatening death, assault with a weapon, and robbery. Witness accounts were found to be corroborated, reliable and credible. The accused was acquitted of theft and robbery, as there was not enough evidence to prove that he did steal the two tool batteries. This demonstrates that where the accused had not left the store, the court will determine on a case by case basis whether or not the accused intended to steal the items.

Will I Have to Return What I Stole?

It is always ideal for the offender to return what they stole, but should get legal advice first. It is one of the primary goals of the Court to retrieve the object, as one of the primary sentencing principles enumerated in section 718 of the Criminal Code is to “provide reparations for harm done to victims or to the community”. Whether or not the stolen property is returned depends largely on the police recovery.  The Crown and the officer in charge of the case would canvas the accused to see if they can get the property back. The police may also apply for a search warrant in some cases.

There is no way to force the accused to return the property or to reveal where they have stashed it. Though it is advisable for the accused to return the stolen property, as the return of the property is a large mitigating factor. If the object is not recovered, the accused may have to pay restitution to the rightful owner of the property.

What is the Difference Between Shoplifting and Theft?

Shoplifting is not enumerated as a separate offence in the Criminal Code. Therefore, any incidents of shoplifting will be charged under section 334(a) for theft under or over $5,000. The Crown proves shoplifting the same way they prove theft, by proving the person intended to move the object without colour of right to convert it for their own use. In addition, the Crown may also prove that the accused did not pay for items or make an attempt to pay, that the accused did not have money to pay for the items, or that the accused possessed the item.

Shoplifting has been described as a minor and petty crime. The Court would typically emphasize the principle of rehabilitation for shoplifting offences. Most shoplifting offences, without a prior record, results in either an absolute discharge, conditional discharge, a suspended sentence, or a fine.

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Recent Cases

R. v Tobo, 2023 ONSC 3742

The accused pled guilty to one count of theft under $5,000 and one count of breach of court order in the Ontario Superior Court of Justice case of R. v. Tobo. The accused had visited a convenience store that he was ordered not to attend and stole a carton of cigarettes.

To determine a fit and proper sentence, the Court must first consider several aggravating and mitigating factors. The accused had a 20-year record of over 100 convictions related to property offences, and that was an aggravating factor. The accused’s cocaine problem is a neutral factor, but the accused attributed his non-violent thefts to his addiction problems. Emphasizing the principle of rehabilitation, the judge was still left with a few questions which the pre-sentence report would answer. In addition, the judge requested a doctor’s letter to gain further insight on the accused’s condition before determining the appropriate sentence.

R. v. Buswa, 2023 ONCJ 146

The accused pled guilty to theft of a donation box, break and enter, and prowl by night in the Ontario Court of Justice case of R. v. Buswa. Several aggravating circumstances were considered during sentencing, where the Court noted the lengthy criminal record, the repeated offences, stealing from charities (theft of donation jars), as well as the theft of tip jars (theft from minimum wage workers). The primary mitigating factors were the offender’s indigenous heritage, mental health challenge, homelessness, substance use and addiction. The offender was not deemed to be particularly violent.

The judge ruled that rehabilitation was to be the sentencing principle prioritized in this case. Noting the impact the pandemic had on everyone, especially the offender, the judge ruled that jail is not the solution. Given the extreme poverty, challenge to find adequate housing, ongoing struggles with mental health, and Gladue factors, he was given a suspended sentence and probation for one year.

R. v. Cvetas, 2022 ONCA 499

The appellant pled guilty to theft over $5,000 in the Ontario Court of Appeals case of R. v. Cvetas. He had stolen $317,000 from his elderly godmother. He sought to appeal his sentence of 12 months’ imprisonment and a two-year probation. He alleged that the trial judge erred by not giving him a conditional sentence. The conditional sentence should be applied on the grounds that he has made restitution, and his probation officer recommended him for community supervision. In addition, he cites the losing of his professional license.

As there were various aggravating factors, the objectives of deterrence and denunciation were deemed to be the sentencing principles by the trial judge. The Court of Appeals deferred to the trial judge and did not see any basis that would warrant further intervention. The Court found that the judge did not make any errors, and a conditional sentence would not have satisfied the sentencing principles of deterrence and denunciation. Unless there is an error of law or principle that impacts the sentence or calls the institution of justice into disrepute, the Court cannot interfere. The sentence was not overturned.

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.