Frequently Asked Questions
What is a Forfeiture Order in Oshawa?
A forfeiture order is one of the most common ancillary orders to theft. When convicted of theft in Oshawa, a person may be ordered to comply to a forfeiture order under section 490.1 of the Criminal Code. There are three different types of forfeiture orders that a convicted person can receive: forfeiture orders related to proceeds of crime, forfeiture orders related to things seized, and forfeiture orders related to the forfeiture of property related crime. Theft is most often concerned with forfeiture orders related to offence related property. In the case where the offender sold the stolen property, the court may issues a forfeiture order for proceeds of crime.
Offence related property is defined in section 2 of the Criminal Code. It is any property, inside or outside of Canada, that is related to the commission of an indictable offence in accordance with the Criminal Code or the Corruption of Foreign Public Act, that was used or intended to be used in the crime. Any type of property, from a house to a pen, can be an offence related property. Theft under $5,000 can either be summarily elected or indictable, while theft over $5,000 is indictable. If the offence is indictable, the property related to the offence may be classified as an offence related property and can be subject to the forfeiture order.
What is a Fine in Lieu of Forfeiture?
A fine is different from a forfeiture order. Fines are often imposed along with another sentencing option when the accused is convicted. For example, a theft under $5,000 charge may be subject to a maximum penalty of two years less a day in prison and/or up to a $5,000 fine. Section 734(1) of the Criminal Code details circumstances where the Court can fine an individual.
A fine in lieu of forfeiture allows the court to order the offender to pay a fine rather than forfeit the property. Pursuant to section 462.37(3) of the Criminal Code, the court can order the offender to pay a fine in lieu of forfeiture where the property cannot be located, where it has been transferred to a third party, where it is located outside of Canada, where it has been substantially diminished in value or rendered worthless, or where it has comingled with other property that cannot be divided without difficulty.
Will I Be Held for Bail if I am Charged with Theft in Oshawa?
Bail, also called judicial interim release, is a promise to abide by certain rules and conditions while out of custody pending the outcome of the criminal case. When arrested, it is up to the police’s discretion to either release the accused from the station with an undertaking, or to hold the person for bail. The accused is more likely to be held for bail if the accused has a prior criminal history, any past breaches for disobeying court orders, or outstanding charges for breaching court orders. The value of the theft can also be a deciding factor in whether the accused will be held for a bail hearing.
All bails in Oshawa and across Canada must abide by the Antic principles. In the Supreme Court of Canada case of R v. Antic,  1 S.C.R. 509, the defendant was considered as a flight risk by the Court. The defendant submitted several plans for bail but was rejected. Finally, a bail judge found that they had violated the defendant’s section 11(e) rights. Bail release is imposed under s. 515(4) of the Criminal Code and the conditions must be strictly necessary. In their decision, the court emphasized the ladder principle, which are a series of principles that courts should follow when imposing bail. These principles are all based on the principle that release is preferred on the least onerous of conditions and at the earliest opportunity.
How to Bail Someone Out of Jail for Theft?
Assuming the person is held for a bail hearing, their release plan will be decided in court. In some cases, they would need help from a third party called a surety. In Canada, most people are released on their own recognizance rather than on a surety release plan. Therefore, the person does not need to get bailed out of jail. They are held with a presumption of being released on the least onerous conditions possible. This means the presumption is that the accused will be released without the intervention of a third party surety.
The only time a third party would need to get involved is when the court or Crown requires a surety to release the accused. The third party would go to Court and agree to be surety on the record. However, sureties are not needed in most cases of theft, and accused’s can typically be released on their own recognizance.
Will I Have to Pay Money to Get Bailed Out?
Most cases of theft do not require a bail hearing at all. In most cases the accused will be released directly from the scene or from the police station. Theft is a non-violent and non-sexual crime, and so the public interest in separating the offender from the public is lesser than other Criminal Code violations. Some of the most onerous release plans requires a surety, while a cash bail is the most onerous step below being held in jail and denied bail. Cash bail is imposed only in extreme or rare circumstances.
Cash bails can take on two forms: a full cash bail or a deposit. The Court may ask the accused to deposit a certain dollar amount with the Court, and they have the power to collect the full amount should the accused break any bail conditions. Theft rarely has such onerous bail conditions unless there are many aggravating factors present.