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Defend Theft CHARGES

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Our Experience

Theft is among the most common criminal offences committed in Orangeville and across Ontario. In Canada, theft offences are categorized as either theft under $5,000 or theft over $5,000, depending on the value of the items taken. Those convicted of theft over $5,000 will face harsher penalties than those convicted of theft under $5,000. Donich Law has experience defending clients charged with a variety of theft offences including those who have been accused of shoplifting or participating in retail theft rings.

In 2020, the Firm defended a client accused of participating in a theft and fraud ring targeting Home Depot stores in R. v. M.K. [2020]. The accused was alleged to have stolen property from the store and then returned the product, receiving money back for items he never purchased in the first place on several occasions. The Firm resolved the matter without a criminal record for the accused.

In 2016, the Firm successfully defended a physician alleged to have stolen over $3,000 worth of clothing from The Bay in R. v. S.Y. [2016]. The Firm engaged in pre-trial negotiations with the Crown, ultimately resolving the matter by way of withdrawal. The Firm then successfully applied to have the fingerprints and photographs of the client destroyed, protecting his license to practice medicine.

In another case involving The Bay, the Firm represented an individual charged with numerous theft and fraud charges after stealing items in R. v. G.E. [2016]. The Crown’s evidence included video surveillance of the alleged theft. The Firm litigated the matter for more than a year, ultimately securing the withdrawal of nine charges.

In addition to defending those charged with shoplifting or theft ring offences, the Firm also has experience defending client’s accused of stealing from their employer. While the Criminal Code does not contain a separate offence for theft from one’s employer, stealing from an employer is seen as an aggravating circumstance. Employees are placed in a position of trust or authority by their employers and abusing that position is always seen as aggravating. Those convicted of stealing from their employers often face increased penalties from the court.

Punishments for Theft Depend on the Value of Property

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In 2023, the Firm represented a client accused of stealing a box of merchandise from his place of employment in R. v. M.F. [2023]. The client was accused of taking a box of merchandise from the loading dock of the business and bringing it to his desk area and later off the property. The employer provided video surveillance footage of the accused moving the merchandise throughout the facility. The Firm completed a detailed analysis of the disclosure material provided, discovering issues with the Crown’s case. The Firm utilized these weaknesses to secure a withdrawal of the charge.

In another 2016 case, the Firm represented a Bay Street executive accused of shoplifting from The Bay in R. v. C.T. [2016]. The client was caught by undercover loss prevention staff in the store and charged with theft under $5,000 and fraud under $5,000. The Firm resolved the matter without a criminal record. The client was actually caught again several years later in its R. v. C.T. [2021], where the Firm was able to achieve the rare result of a second withdrawal and destruction of fingerprints.

How to Defend Theft Under $5000

In 2019, the Firm represented an individual accused of engaging in a fraud ring at his place of employment in R. v. O.I. [2019]. The employee was accused of returned fake merchandise to the store and then diverting the funds into his own bank accounts. The total loss was alleged to be more than $170,000. The Firm challenged the inventory reports provided by the loss prevention company as part of disclosure, leading to the exclusion of a large portion of the alleged loss. The Firm ultimately resolved the matter without a criminal record.

In the Firm’s R. v. J.W. [2020], it defended the accused charged with theft in relation to stealing keys from his condo corporation. The matter was referred to police by the condo board who was attempting to use law enforcement as a means to collect $15,000 from the accused to re-key the entire building. The condo corporation also threatened to sue the accused and proceed with damages. The Firm conducted several crown pretrials and was able to show the condo corporation was essentially using law enforcement to better collect potential civil damages and that a crime did not take place. The matter was eventually withdrawn and characterized as a civil dispute. The client was also never sued and avoided paying anything to the corporation.

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Frequently Asked Questions

Is Taking a Pet Theft in Orangeville?

Yes, taking a pet without the owner’s permission is considered theft in Orangeville and across Canada. Pets and animals are considered property. Animals are not people, and taking of a person is the separate offence of kidnapping enumerated in section 279(1) of the Criminal Code. Therefore, taking a pet is theft.

In the Ontario Court of Appeals case of R. v. Jackson, [2020] ONCA 407, animal that was stolen was a dog. The dog was the subject of dispute between the complainant and his former girlfriend. The accused, the former girlfriend’s coworker and friend was seen driving an SUV away from the crime scene. Unfortunately, the dog was never recovered. The appellant was convicted for the theft of the dog and sought to appeal her case. The appeal was dismissed.

What if I Thought the Owner had Thrown the Item Away?

Any criminal case is decided on a case-by-case basis, including those in Orangeville. Any unusual or additional factors in the case would be presented in Court to be ruled and decided on by a judge.  In some cases, the accused will have an opportunity to present this evidence to the Crown ahead of a trial, which may assist in resolving the charges. This is why using the section 10(b) rights entitled to every person in Canada is important; a lawyer may be able to make a full response to the questions and charges laid by the Crown. If the issue of found property is raised, the lawyer may arrange for a crown pre-trial to discuss with the Crown.

In order for the accused to be acquitted on the grounds that the item was found, they must have had genuine belief that the property was abandoned. In the Provincial Court of British Columbia case of R. v. Thomas, [2016] BCPC 391, the accused claimed that he thought the truck batteries he took was discarded by the complainant. He was charged with theft under $5,000. The batteries were left at the top of the complainant’s driveway. The Crown evidence established that the complainant did not renounce the properties by placing the batteries at the top of his driveway, nor did he intent for other people to take them. The Crown had to prove beyond a reasonable doubt that the accused had the intent to take the batteries fraudulently and without colour of right. The accused was not credible and the judge did not believe him in that he had an honest but mistaken belief in his own colour of right. The accused was found guilty contrary to s. 334(b) of the Criminal Code.

What is Time Theft?

Time theft occurs when an employee states they have worked more hours than they actually have, and collect payment they are not entitled to. In the Criminal Code, there is no separate offence for time theft in comparison to theft. The value of the theft is based on the calculation of the hourly wage. Then the theft would be either categorized as section 334(a) of theft over $5,000 or section 334(b) of theft under $5,000.

Stealing from one’s employer is always an aggravating factor. Stealing from one’s employer amounts to a breach of trust, because the employer entrusted the employee with tasks and responsibilities that they expect to be completed.

Is there a Difference Between Theft and Shoplifting?

The Criminal Code does not enumerate a separate offence for shoplifting. Shoplifting is often charged under s. 334(b), theft under $5,000 though it may also include theft over $5,000.

To prove theft under s. 322, the Crown must prove: the identity of the accused, the date and time of the incident, the jurisdiction of the incident, the act of the theft, the intent of the theft, the proof of ownership of the property, that the owner did not give permission to the property, and various other elements. In addition to proving these elements, the Crown may need to prove that (1) the accused did not pay for the items or make an attempt to pay, (2) that the accused did not have money to pay for the items (3) whether the accused had the alleged property in possession at the time of theft.

What if I was Caught for Shoplifting but not Charged?

Shoplifting charges are recently on the decline. Many convictions for shoplifting without a prior offence may result in discharges, suspended sentences, or fines. There is a possibility the charge may be withdrawn depending on the circumstances of the offender and nature of the offence.

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Recent Cases

R. v. Klimitz, 2018 ONCA 553

The accused was responsible for managing his elderly mother’s finances in the Ontario Court of Appeals case of R. v. Klimitz. For theft over $200,000 the accused was convicted and sentenced to three years imprisonment and a restitution order of $125,000. Over the course of two and a half years, the retirement savings of the mother dropped from $557,000 to $83.43. The appellant appealed, arguing his section 11(b) rights being infringed due to the long proceedings, and that the trial judge erred in admitting video evidence from the complainant.

The video evidence of the complainant’s interview was not cross-examined, and duty counsel for the defendant argued that outside factors and influence (such as the defendant’s siblings) may have impacted the complainant’s testimony. However, the Court of Appeal found that the trial judge applied the threshold reliability law correctly. The section 11(b) application was also not raised until the Court of Appeal. If a section 11(b) application was not raised in the lower courts, there is no reliable foundation of facts for which the Court of Appeals may examine the case. The appeals of both the conviction and the sentence were dismissed.

R. v. Ramsay, 2019 ONCJ 292

A ring appraised to be worth $20,000 in labour and even more in raw materials went missing in the Ontario Court of Justice case of R. v. Ramsay. The accused was an employee at an air conditioning and heating company. The ring went missing around the time that the accused entered the complainant’s home for maintenance. In addition, the accused admitted to being present at the store where the ring was appraised, and knowing the ring’s value, and may have motive to commit the crime.

The Court primarily dealt with witness testimony in this case. The principles of judging reliability and credibility are enumerated in R. v. W (D), [1991] 1 S.C.R. 742. The clause states “(1) if they believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.”

The Court found that the accused made several calls to pawnbrokers and had an array of tools to commit the theft at the time of the theft. Therefore, the Court did not find the accused’s evidence reasonable and reliable. The accused also had a reasonable motive, as he had an upcoming wedding. However, there was not enough evidence to convict him, as the Crown did not prove beyond a reasonable doubt that the accused is guilty. The accused was acquitted.

R. v. Burrill, 2022 ONCJ 274

The accused pled guilty to ten criminal charges in the Gladue court in the Ontario Court of Justice case of R. v. Burrill. The accused stole bottles of hand sanitizer on three separate occasions from a commercial building. The theft was worth less than $200 in its entirety. In addition to pleading guilty to theft, he pled guilty to possession of a break-in instrument, assault, possession of a weapon, robbery, as well as breaching release orders.

Various factors played an important role during sentencing, including the accused’s Gladue report. The Gladue principles of sentencing that is rehabilitation are applied. The accused was reported to have experienced significant difficulty during the pandemic, his offences were survival-based. He was struggling with supporting himself, maintaining shelter, addiction, as well as the lack of vital mental health resources and services all played a significant factor in his criminality. The judge was optimistic about the offender’s long-term rehabilitation, as the accused now has employment, stable housing, culture-specific programming, and support from his partner. He was sentenced to a section 109 prohibition for life and a DNA order, in addition to an intermittent sentence of 90 days, a suspended sentence, as well as two years’ probation.

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.