Shoplifting Defence Lawyers in Toronto

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FIRST OFFENDER? DEFEND SHOPLIFTING CHARGES.

The Firm defends first offenders facing Shoplifting or Theft Under $5000 allegations from Sephora, Winners, Canadian Tire, Loblaws, The Bay, Shoppers Drug Mart, Wholefoods, Aldo, Toronto Eaton Centre Merchants, Yorkdale Shopping Centre Retailers and many other businesses who aggressively prosecute these charges. We have successfully defended numerous people charged with Theft Under $5000 who work at CIBC, BMO, Investors Group, Hospitals, Retail Merchants, Municipal and Provincial Governments among others. Specifically, we have actively defended Real Estate Agents, Retirees, Students, Pharmacists, Financial District Professionals, Paralegals, Teachers and many other facing Shoplifting allegations in Toronto.

Many people charged with Theft Under $5000 were simply distracted at the time of offence, or have been falsely accused by undercover store operatives. Our clients often come to us after being treated physically aggressive by store security and held for hours in isolation to be arrested by police.

We frequently handle sophisticated financial crimes, the Firm secured a withdrawal of Theft Under $5,000, where a BMO bank teller was accused of robbing the bank on the job in its new R. v. G.G. [2015]. We regularly defend allegations of Shoplifting in Toronto Courts. Specifically Old City Hall, College Park, Metro North, Metro West and Scarborough court. It is important to hire a lawyer with local experience in the specific courts you are charged.

In January, 2017, the Firm resolved four (4) Fraud related allegations without a criminal record against a Canada Post employee charged with attempting to defraud the Bank of Nova Scotia over $50,000.00 in its R. v. S.A. [2017]. The Firm is frequently consulted by the media with respect to Theft and Fraud allegations in Toronto and has appeared on CityNews680News and  Global News.

We often provide advice on avoiding detection of your charge by your employer, including erasing all fingerprints and photos obtained by Toronto Police. Our service includes advice on travel to the United States and other cross boarder complications associated with being charged with Theft Under $5000. Many of our clients also have immigration concerns, even if a person is not convicted and simply arrested, disclosure may be required upon application for Permanent Residency or Canadian Citizenship.

This is likely your first offence, our objective is to provide you with a second chance, without a criminal record. Nearly every case of shoplifting can be resolved without a criminal conviction.

The Firm resolved a $60,000.00 HomeSense fraud ring without a criminal conviction in its R. v. S.C. [2015]. In its R. v. N.B. [2015], the Firm further resolved a Target Canada employee theft ring without any criminal convictions, where two 19 year old students were abusing employee discounts and charged with 3 counts of Fraud Under $5000.

The Firm has successfully resolved a number of theft allegations by employees from their employers, including retail merchants and even employees of Canadian Banks, including BMO and CIBC. It it’s R. v. A.N. [2013] the Firm resolved a $56,000.00 RBC Fraud allegation without a criminal record.

We handle many minor thefts which have the potential for profound travel, immigration and employment consequences. Frequently, employers require prospective employees to disclose any convictions or outstanding charges for theft. We have successfully diverted a range of theft related charges without any admission(s), ultimately providing our clients a fresh start.

Frequently Asked Questions

What is Theft?
What is the Difference between Theft Under $5,000 and Theft Over $5,000?
What is the Difference between Theft and Fraud?
What is the Difference between Theft and Shoplifting?
What is Your Success Rate?
Where do you Defend Allegations of Shoplifting?
What are some of the Penalties for Theft and Shoplifting?
What are the Consequence of Having a Criminal Record associated with Shoplifting?
What is Break and Enter?
What are some of the Penalties for Break and Enter?
What is the Difference between Theft and Break and Enter?
What is Robbery?
What are some of the Penalties for a Robbery Conviction?

First Offenders

What Happens Once you have been Arrested and Taken into Police Custody?
-Form 9 Appearance Notice
-Form 10 Appearance Notice
What are Possible Consequences of Having a Criminal Record?
Is it Possible to Keep my Criminal Charges Private from Friends and Family?
Can I Keep my Criminal Charges Private from my Community?
Will People Learn of my Charges once my Matter has Concluded?
-Criminal Background Checks
-Vulnerable Sector Check
Can Travel Outside Canada be Negatively Impacted by my Criminal Record?
What is a Waiver of Inadmissibility?
How Does the Process Work?
The Relevance of Mitigating Factors in Criminal Cases
What are Examples of Mitigating Factors?

Additional Resources

First Offenders & Theft
Sentencing Factors
Keeping Your Charges Private
Release from Police Custody
Theft From Your Employer
Resolving Shoplifting Charges
U.S. Waivers

What is Theft?

Section 322(1) of the Criminal Code sets out that an individual commits theft when he or she fraudulently and without colour of risk takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything with intent. The individual must intend one of the following four things:

(a) To deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) To pledge it or deposit it as security;

(c) To part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) To deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Therefore, to secure a conviction for theft the Crown must prove the accused: (1) took or converted property, (2) without permission and without a good faith belief he or she had permission and (3) the accused intended to do so.

What is the Difference between Theft Under $5,000 and Theft Over $5,000?

Section 334 of the Criminal Code sets out theft charges are punished as Theft under $5,000 or Theft over $5,000. The elements of the offence that the Crown must prove are the same for both, except for the monetary value of the theft. For Theft under charges, the Crown must prove the stolen amount was under $5,000; and for theft over charges, the Crown must prove the amount was over $5,000.

The two offences also differ in terms of penalty. Section 334 sets out that Theft over $5,000 is an indictable offence, punishable by up to ten years imprisonment. Comparatively, Section 334 sets out that Theft under $5,000 is a hybrid offence and can be prosecuted either summarily or by indictment. If prosecuted by indictment, the accused is liable to a term of imprisonment not exceeding two years.

What is the Difference between Theft and Fraud?

The main difference between theft and fraud is in the intent element. With fraud, one intends to hide his or her unlawful act, whereas with theft there is often no such intention to hide your guilty act. For example, taking money from a bank is theft, whereas embezzling money and trying to hide that fact is fraud.

What is the Difference between Theft and Shoplifting?

Shoplifting is a specific kind of theft. Shoplifting occurs when an individual takes an item from a store without paying for it. Typically, the charges in such a situation would be Theft Under $5,000.

With shoplifting, it is also possible to be charged with possession of stolen property in addition to theft.

What is Your Success Rate?

For first time offenders with single counts of Fraud or Theft Under $5,000, 99% of our cases are resolved without a Criminal Record. Results may vary depending on whether the offender is willing to take responsibility for his/her actions. It is important to remember that no lawyer can guarantee any outcome and that past results are not necessarily indicative of future results, each case is always weighed on its own merits.

Where Do You Defend Allegations of Shoplifting?

We primarily defend charges of Shoplifting in Toronto Courts, specifically College Park, Old City Hall, Metro North, Metro West and Scarborough court. When deciding which lawyer is right for you, it is critical to hire counsel in the specific court your are charged. Having a lawyer who actively practices in the Courthouses you are charged helps ensure the charge is handled efficiently.

What are some of the Penalties for Theft and Shoplifting?

Penalties for theft and shoplifting will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating or mitigating factors.

Section 334 of the Criminal Code sets out that a conviction of theft over $5,000 can result in a penalty of ten years imprisonment. Comparatively, if an individual is convicted of theft under $5,000 (which would likely be the charge with shoplifting), this can result in a penalty of two years imprisonment if the Crown proceeds by indictment. Jail is generally highly unlikely for a first offender charged with shoplifting, many of these cases can be resolved without a conviction. We have observed jail sentences where the offender becomes aggressive with store security or is charged with other offences related to the incident.

What are the Consequence of Having a Criminal Record associated with Shoplifting?

Some of the consequences of having a criminal record associated with shoplifting may include travel restrictions, lack of employment opportunities and criminal sanctions.

A criminal conviction will appear on your record when you try to travel to another country. Having a criminal record may prohibit you from entering foreign countries. For example, the United States has strict policies about allowing individuals with criminal records to enter.

A criminal conviction may also impact employment opportunities. Many employers require criminal record checks and may not be willing to employ you if there is a criminal conviction on your record. Even if your matter is diverted, it can still be problematic with a Vulnerable Sector Check.

A criminal conviction may also result in criminal sanctions. You could be ordered to pay a fine, restitution or a charitable donation. You could also be subject to conditions if you are released that requires you to complete community service. It is also possible you could face imprisonment, depending on the circumstances of the offence and the individual offender.

What is Break and Enter?

Section 348 of the Criminal Code makes it a criminal offence to break and enter into a dwelling house or any other building. There are three ways the offence can be committed:

  • By breaking and entering a place with intent to commit an indictable offence therein;
  • By breaking and entering a place and committing an indictable offence therein, or
  • By breaking out of a place after
    1. Committing an indictable offence therein, or
    2. Entering the place with intent to commit an indictable offence therein,

Section 348(2) makes certain evidentiary presumptions for break and enter proceedings, so evidence that an accused:

(a) Broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or

(b) Broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after

(i) Committing an indictable offence therein, or

(ii) Entering with intent to commit an indictable offence therein.

What are some of the Penalties for Break and Enter?

Penalties for break and enter will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating or mitigating factors.

Section 348(2) of the Criminal Code sets out that a conviction of break and enter in a dwelling house can result in a penalty of life imprisonment when the Crown proceeds by indictment. If the offence is convicted in relation to any other building the offence is punishable by up to ten years imprisonment when the Crown proceeds by indictment.

What is the Difference between Theft and Break and Enter?

The difference between theft and break and enter is that theft requires someone to take or fraudulently convert property for his or her own use. Comparatively, break and enter does not always involve theft or the taking of property. Breaking and entering occurs when an individual enters a place forcefully and without lawful entry. The illegal act with break and enter comes from entering a place unlawfully, not by necessarily taking anything, which is what theft requires.

What is Robbery?

Section 343 of the Criminal Code sets out that every one commits robbery that does one of the following four things:

(a) Steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) Steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c) Assaults any person with intent to steal from him; or

(d) Steals from any person while armed with an offensive weapon or imitation thereof.

The term “steal” is defined as “to commit theft.”

What are some of the Penalties for a Robbery Conviction?

Penalties for robbery will vary depending on the specific circumstances of the offence, the characteristics of the offender and victim, and the presence of other aggravating or mitigating factors.

Section 344 of the Criminal Code sets out that a conviction of robbery can result in a penalty of life imprisonment. There are mandatory minimum punishments of several years imprisonment when a firearm is involved.

First Offenders

Being charged with a criminal offence can be a stressful, upsetting and traumatic experience for a person at any point in their life. These negative feelings may be compounded for those who are being charged with a criminal offence for the first time, due to the added confusion of how to navigate the legal system. After being criminally charged and released, if you were held in police custody, you will have likely received documentation. This documentation will indicate which Criminal Code offence you have been charged with and when you will next be required to appear in court. Depending on the charges against you, there may be conditions associated with your release.

You must comply with all of these conditions until told otherwise by the court or until your matter has concluded. Failure to do so can result in a revocation of bail and/or additional criminal charges. Conditions commonly imposed on offenders include: no contact orders with the victim or location of the offence, reporting any change in address or employment to the court promptly, remaining in your residence during hours specified by the court or refraining from leaving the province. Court documents can be challenging to understand for individuals without legal knowledge. Our Firm can help you understand the charges against you to ensure you have all the necessary information required to make an informed decision on how to proceed with the case and resolve the matter with the best possible outcome.

Whether or not you are a first time offender, being charged with a criminal offence is a very serious matter. Once the police have laid charges against you, the following will likely occur:

  • The police will record the charge(s) that have been laid against you in their system. This information will likely be shared with other law enforcement and police agencies.
  • The police will record the form of your release in their system including any conditions that have been imposed on you.
  • You will receive documentation outlining the time and location of your first court date. It is important you attend this court date as failure to do so will result in the court issuing a warrant for your arrest.
  • The charges against you will be sent to the Crown Attorney’s office where a file, called a disclosure, outlining the case against you will be created. The file will contain any applicable background information as well as evidence that the police collected. Your defence lawyer will be provided with a copy.
  • Any appearances you make in court will be recorded on the public record through the creation of a transcript. Court proceedings are also open for any member of the public to view.
  • It is likely that you will be required to attend the police station at some point to provide photographs and fingerprints to be kept on police record.

Any evidence or information placed in the police record will remain there long after the criminal matter has been resolved. There is a lengthy backlog in eliminating cases from law enforcement record systems in Canada and as a result even those defendants who have received a conditional discharge or withdrawal will have their matter remain in the police record for quite some time. Individuals who are in this position may hire an attorney to move the process along more quickly. In cases where there has been a criminal conviction, the record of the offence will remain in the law enforcement agencies records forever. A criminal conviction can affect many other aspects of one’s life and as such it is important to hire qualified legal counsel as soon as possible if you have been charged with a criminal offence.

What Happens Once you have been Arrested and Taken into Police Custody?

Generally, upon being arrested you will be transported to the local police station to be processed. The police will likely check your criminal background, photograph and finger print you during this process. In most cases the police will release you from custody the same day, providing you with documentation outlining the charges against you, any conditions associated with your release, and when and where you must appear in court. The type and severity of the crime you have been charged with will determine the form of your release. In less serious cases where the offender poses no risk to the community, the court will release the individual on a Promise to Appear. In other cases, the offender may need to post bail. Depending on the severity of the crime, the individual may be permitted to post bail on their own, or they may be required by the court to have a third party, or surety, post bail on their behalf.

If the police do opt to hold the offender in police custody, the individual will have the opportunity to go in front of a judge for a bail hearing. The court will then determine whether or not the offender can be released on bail, and if so on what conditions. In the most serious cases, where the court has deemed the offender to be a serious risk to the safety of the community or a flight risk, the court may deny bail. In these cases the offender will be required to remain in police custody either until the matter has concluded or until they can prove they no longer pose a risk.

If you have been released from police custody the same day without the need for a bail hearing, you will have been provided with one of two forms:

  • Form 9 – Appearance Notice
  • Form 10 – Promise to Appear

These forms indicate what you have been charged with, what conditions, if any, are attached to your release, and when you must next appear in court.

Form 9 – Appearance Notice

Upon your release from police custody you may have been given a Form 9 Appearance Notice. The Appearance Notice outlines your release as well as the criminal charges against you. The document will contain information including your name, address, the charge(s) against you and when and where you will be required to appear in court. The document will also indicate whether or not you will be required to attend a police station to provide the police with fingerprints and photographs for their records.

It is important to remember that an Appearance Notice is a legal document. Should you fail to appear in court on the date noted on the Appearance Notice a warrant will likely be issued for your arrest. In addition to being arrested again, it is possible that you will face additional criminal charges. Failing to appear for a court date will also act as an aggravating factor in your case.

Form 10 – Promise to Appear

Upon your release from police custody you may have been asked to sign a Promise to Appear (Form 10). The Promise to Appear will contain information including your name, address, what you have been charged with, when and where you will need to appear in court and any conditions that have been attached to your release. The form will also indicate whether you will be required to report to a police station to have fingerprints and photographs taken. You will be required to sign the Promise to Appear document before being released from police custody. By signing the document you are entering into an agreement stating that you will abide by the conditions outlined in the form. If you refuse to sign the document the police will continue to hold you in custody.

A Promise to Appear is a legal document in which you have agreed to attend court on the dates listed and to abide by the conditions outlined in the form. Failure to obey the Promise to Appear document will result in the court issuing a warrant for your arrest and could lead to additional criminal charges being laid.

As mentioned above, a Promise to Appear will list conditions which you will be required to abide by until the court indicates otherwise and often until the matter is resolved. The conditions which have been imposed on you will be listed in Form 11.1 Undertaking Given to a Police Officer or Officer in Charge. This document will indicate which conditions you will be required to abide by while not in police custody. The conditions associated with a Promise to Appear are similar to those that are imposed on someone who has been released on bail. Failure to comply with any of the conditions will result in a warrant being issued for your arrest and likely in additional criminal charges being filed against you. The police will determine which conditions will be included in the Promise to Appear document. Conditions commonly imposed include; residing at a court approved address and informing the court of any change in address, keeping the peace, abiding by a curfew, refraining from consuming drugs and/or alcohol, and informing the police of any changes in employment.

Which conditions the police decide to impose will depend on the type of criminal offence, the severity of the alleged offence and the past criminal history of the offender.

What are Possible Consequences of Having a Criminal Record?

Having a criminal record in Canada is a serious matter and can result in many different consequences in many different aspects of an individual’s life. These implications can be quite serious depending on the severity of the charges against you.

Community and/or Personal Life – A criminal record may have negative implications on one’s personal life. There is often a social stigma attached to being charged with a criminal offence which can negatively impact an individual’s reputation within the community. Being charged with a criminal offence and having a criminal record can also affect one’s personal relationships with their friends and family in many ways.

Employment – The majority of employers in Canada will require a criminal background check prior to hiring an individual. Having a criminal record can make obtaining employment more challenging and can disqualify individuals from certain areas of employment altogether. For example, those with a criminal record will often be excluded from employment positions involving vulnerable members of society such as children or the elderly. It is important to be honest about your criminal history with a potential employer from the beginning.

Immigration – Individuals who have been criminally charged and have active applications filed with Citizenship and Immigration Canada may have their applications negatively impacted by their charges. A thorough background check will be run on all those who file applications with Citizenship and Immigration Canada and having a criminal history can be a red flag on such an application and may result in rejection of the application.

Travel – Having a criminal history can make travel to many parts of the world difficult. Many countries will inquire about a travelers criminal history prior to granting access, and many countries will deny entry to those with criminal convictions on their record. The United States is particularly strict about allowing individuals with criminal records across their borders. If you have a criminal record and wish to enter the U.S. it is recommended that you apply for a U.S. Waiver of Inadmissibility prior to attempting to cross the border.

First Offenders

Is it Possible to Keep my Criminal Charges Private from Friends and Family?

It is not uncommon for those who have been charged with a criminal offence to wish to keep those charges private from people in their personal life. Many people fear their criminal charges will tarnish their reputation within their community. It is generally up to the individual charged with the criminal offence to decide whether they wish to share their criminal charges with their friends and family. However, it is important to note that once you have been criminally charged those charges become part of the public record. Any information shared with your attorney is protected by attorney client privilege and cannot be disclosed to any third parties. If you wish to keep your criminal charges private from your friends and family it is important to notify your lawyer of this immediately.

There are many ways that our Firm can keep your criminal matters private. We can refrain from sending legal documentation to your home or work address or from contacting you during certain hours of the day and you can inform us of your preferred method of contact. Our Firm is also able to receive service of legal documents at our office to avoid the documents being served at your home or work address.

Can I Keep my Criminal Charges Private from my Community?

When you have been charged with a criminal offence, that information becomes part of the public record. In addition, court proceedings are open to the general public. This means that almost anyone will be able to see the charges against you or attend court dates regarding your matter. If you wish to keep your criminal charges private from the community our Firm can work with you to ensure that they are kept as private as possible. It is important you notify our Firm of your intention to keep your criminal matter private immediately.

Will People Learn of my Charges once my Matter has Concluded? 

As noted above, criminal charges are part of the public record as soon as they have been laid against an individual, and court proceedings are open to the general public. Once the matter has concluded, whether or not the charge will remain for the public to see will depend on the outcome of the case. In cases where the accused received a withdrawal of the charges or an absolute discharge, the charges will not appear on the individuals criminal record once the matter has concluded. This makes the criminal charges much easier to keep private. If, on the other hand, the case resulted in a criminal conviction, the criminal conviction will appear on a criminal background check for employment, immigration or travel purposes forever. If you have been charged with a criminal offence it is important to contact a qualified attorney immediately to determine how these charges could affect your life.

Criminal Background Checks

Most employers in Canada require a criminal background check be run on all potential employees prior to hiring them. In many cases, having a criminal record can have a negative impact on an individual’s job application. Generally, you can have a criminal background check run at your local police station. This background check will indicate any and all criminal convictions associated with your name and when you were convicted.

If you have been charged with a Criminal Code violation and feel it may impact your employability, it is important to contact qualified legal counsel right away. Our Firm can help you navigate the charges against you to ensure you have all the necessary information to make an informed decision on how to proceed with your case.

Vulnerable Sector Check

A Vulnerable Sector Check is another type of background check that is often required for jobs or volunteer positions involving vulnerable sectors of society or where you will be in a position of authority. For example, if you are applying to work with children, those who are disabled, or the elderly it is likely you will be required to obtain a vulnerable sector check. This background check will list your criminal history and/or any other police records pertaining to you that may be relevant. It is likely that having a criminal history will make individuals ineligible for these types of positions.

Can Travel Outside Canada be Negatively Impacted by my Criminal Record?

Having a criminal record can make travel to foreign jurisdiction much more difficult. It is not uncommon for foreign countries to inquire about an individual’s past criminal history prior to admitting them to the country. In many cases, having a criminal history may make an individual ineligible for entry to many countries. The United States is particularly strict with who they allow to cross their borders. Having a criminal record can make travel into the United States very difficult. The U.S. reserves the right to refuse entry to any individual who has previously been convicted of “a crime or moral turpitude”. This includes almost all criminal offences in Canada. Though travel can become more difficult with a criminal record, it is not impossible. Border agents will use their discretion in determining who they will and will not allow into the country. If you wish to travel to the United States but have a criminal history, it is important to consult a lawyer to determine what your options are. In many cases and for many offences, you may be able to obtain a Waiver of Inadmissibility which will allow travel into the United States despite having a criminal history.

What is a Waiver of Inadmissibility?

A Waiver of Inadmissibility is a waiver requesting admittance to the United States despite being declared inadmissible. One of the circumstances that may make an individual inadmissible for entry to the United States is being convicted of a crime of moral turpitude, as outlined above. The Waiver of Inadmissibility application is made to the United States government and must be filed well in advance of the date of travel as the process is often quite lengthy.

How Does the Process Work?

The application process is a lengthy one and as such it is important to file your application at least one year prior to your travel date. The process commonly takes a year or more and there is no guarantee that the application will be approved. To apply for a Waiver of Inadmissibility visit the U.S. Citizenship and Immigration Services website. There are several different types of forms, depending on the particular circumstances of the traveler. It is important that you select the correct form and fill it out completely before submitting it. Applications that have been filled out incorrectly or incompletely will not be considered. The application can be filed at either the Port of Entry which you wish to use to enter the United States or a preclearance location in Canada. Not all Port of Entry locations accept applications so it is important to research the correct location prior to sending the application. Each application costs $585.00 USD. This fee is non-refundable regardless of the outcome of the application process.

Determining which application is the correct one and filling it out accurately can be a confusing and difficult process. It is important to contact an experienced legal professional in order to ensure your application is completed and submitted accurately. A lawyer can also help you identify which documentation you will be required to provide with your application. Documents which are commonly required for the application include: the application form signed and fully completed, a completed personal information form, a criminal record check, a copy of the court record pertaining to past convictions, proof of citizenship, a copy of your fingerprint chart (which can be obtained from a U.S. Customs and Border Protection Officer), and a statement indicating your intended activities in the United States.

If a finger print chart is required as part of your application, your fingerprints will generally be collected by a U.S. Customs and Border Protection Officer once you have mailed in your application and it has been processed. Once the application has been mailed in to the correct location and processed, you will received instructions on where you can go to obtain your finger print chart. In cases where the application is submitted in person, the finger print chart will likely be taken the same day.

If you application is approved it is important to carry all relevant documentation with you during your travel to the United States. It is recommended that you consult an experienced lawyer prior to filing your application to ensure it has been completed fully and accurately.

Mitigating Factors

A mitigating factor refers to a factor in a criminal case that may work in the offenders favour. When a judge is deciding the appropriate sentence in a case they will weigh both the mitigating and aggravating factors to determine a fit sentence.  Some mitigating factors that the court may consider include:

  • If there was “substantial recovery” of the proceeds of the crime
  • If the accused voluntarily paid restitution to the victim prior to sentencing
  • If the motive for the crime was honest including an addiction, a medical condition, poverty or other motivating factors that are not based on financial gain
  • Whether there were personal consequences to the accused as a result of their crime
  • If the accused has strong ties to their community
  • If the accused is a first time offender
  • If the accused is a youthful offender

Your defence lawyer will have the opportunity to argue any mitigating factors in your case to the judge prior to sentencing should you be convicted. Your defence lawyer may also use mitigating factors in your case to negotiate with the Crown. Mitigating factors can affect how the Crown will proceed with the case as well as their submissions on an appropriate sentence.

The Relevance of Mitigating Factors in Criminal Cases

Mitigating factors play an important role in your criminal case from the very beginning to the very end. Upon being criminal charged, mitigating factors can play a role in the Crown’s determination on how to proceed with the case. For example, mitigating factors may mean the difference between the Crown proceeding summarily or by indictment. Cases that are prosecuted by indictment are generally far more serious and come with much harsher penalties upon conviction than charges prosecuted summarily. Mitigating factors can also influence the Crown’s position on plea deals and what sentence they will recommend to the judge should you be convicted. It is imperative that your defence lawyer communicate any and all mitigating factors to the Crown as soon as possible to ensure the best possible outcome in your case.

In addition to influencing how the Crown will handle the case, mitigating factors may also be important during the sentencing phase of a criminal prosecution. Assuming the offender is convicted, mitigating factors can play a big role in determining the proper sentence in a particular case. The judge will weigh both the mitigating and aggravating factors in the case when making sentencing decisions. Section 718.2(a) of the Criminal Code requires judges to increase or decrease the sentence in a particular case based on the mitigating and aggravating factors presented by the defence and Crown attorney’s.

What are Examples of Mitigating Factors?

The Criminal Code does not explicitly list mitigating factors which judges should use to determine the fair sentence in a particular case. Such lists have been compiled through case law created by judges. Some mitigating factors include:

Acts of Reparation or Compensation – Any actions on the part of the offender to make reparations or pay compensation to the victim of the crime prior to sentencing.

Age – Offenders under the age of 18 and those considered elderly will generally be treated more leniently.

Collateral Consequences – Any consequences suffered by the accused as a result of the crime they have committed including; emotional, psychological, financial or physical will demonstrate that the accused has already suffered some consequence for their actions.

Delay in Prosecution – A delay that is serious but not long enough to be considered a Charter breach under s. 11(b) may be a mitigating factor.

Employment Record – If the offender has a strong history of employment this will generally work in their favour during sentencing as it shows that the offender is capable of being a responsible member of society. However, if the offence that was committed involved the accused’s employer, such as theft from an employer, this factor may not be mitigating.

Evidence of Impairment – If the accused can show that they were suffering some sort of impairment at the time they committed the offence this will generally make them less culpable and thus will likely result in a lighter sentence.

First Time Offender – If the accused has a clean criminal record this will be a mitigating factor in their case.

Gap in Criminal Record – In cases where the accused has a past criminal history, but there has been a long gap of time between past and current criminal offences, this will work as a mitigating factor in the case.

Guilty Plea and Remorse – If an accused plead guilty during an early stage in the case and expressed remorse for their behaviour, this will work as a mitigating factor in the case.

Immaturity – If an accused is particularly immature at the time the offence is committed this may be a mitigating factor.

Prior Good Character – Prior good character exhibited by the accused which can be shown through character references from friends and family may work as a mitigating factor in the case.

Provocation and Duress – The presence of some provocation or duress may be relevant at sentencing to reduce the moral blameworthiness of the offender.

Rehabilitation Efforts after the Offence – In cases where the accused has been charged with a crime relating to drugs, alcohol or anger management issues, taking steps prior to sentencing to resolve these issues will likely be given mitigating credit by the court.

Unrelated Acts of Charity of Bravery – Mitigating credit may be given to individuals who have demonstrated acts of bravery or charity that are unrelated to the crime they have committed.

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