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Defend Theft Charges

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Our Experience

In June 2020, the Firm resolved a $5000 Home Depot theft and fraud ring without a criminal record in Scarborough in its R. v. M.K. [2020]. The accused was allegedly stealing and returning merchandise at various locations and had 13 fraud related charges. Retail theft has been on the rise with undercover operatives catching offenders. Retailers have a strong interest in apprehending shoplifters because of rising inflation, the business costs associated with theft and to send a message to other shoppers. If you are charged with theft, fingerprints and photographs will be taken and stored by the RCMP. Retailers have been upgrading their video surveillance and data analytics to gather evidence and arrest shoppers at later dates, even after they have left the store.

In October 2020, the Firm secured a withdrawal of a $30,000.00 internal employee theft allegations, where the accused was allegedly stealing merchandise from the employer with her manager. The defence was able to raise doubt with respect to the evidence and surveillance, ultimately withdrawing the allegation of theft over $5000 in its R. v. E.K. [2020]. Her manager was in fact the one primarily responsible for the organized internal theft and tried to blame the Firm’s client who was her subordinate. The Firm was able to show our client was not involved and was actually subject to a power imbalance and influence of her manager.

In 2021, the Firm defended an individual charged with falsifying employment records and theft over $5,000 in R. v. K.S. [2021]. The client was charged after allegedly committing time theft by falsifying time records at his job and stealing over $15,000.00 worth of wages. The Firm was able to secure a withdrawal of both charges by calling into question the credibility of evidence presented by another employee who had a prior history of fraud and by showing that the accused had completed work from home. The Firm gathered evidence that manager approval was granted which made it difficult for the business to prosecute the accused for the loss. Forensic data was also reviewed and found errors in the credentials used to log the additional time the employee allegedly did not work.

Theft is a non-violent crime that can be categorized into theft over $5,000 or under $5,000. In 2021, Statistics Canada reported 36,121 incidents of theft under $5,000 in Toronto. In comparison, the number of incidents for theft over $5,000 is 1,504 in Toronto in 2021. The Toronto Police reported 847 incidents of theft over $5,000 in Toronto in 2023, in comparison to 657 incidents in 2022. We have successfully represented Nurses, Doctors, Pharmacists, Accountants, Teachers, Financial service workers, immigrants on visas, students and government employees charged with theft. other financial institutions.

The Firm regularly defends law abiding citizens and Canadian immigrants charged with shoplifting in Toronto. The Firm has secretly resolved charges for a number of professionals, protected their license, immigration, U.S. Travel and vulnerable sector checks. Many people charged with Theft are falsely accused or simply made an honest mistake. Our client’s come to us after being held for hours by store security and have often been physically mistreated by undercover operatives. In some cases they have been coerced into making a confession which is not always legally admissible in court.

In January, 2017, the Firm resolved four Fraud related allegations without a criminal record against a Canada Post employee charged with defrauding the Bank of Nova Scotia over $50,000.00 in its R. v. S.A. [2017]. The accused was alleged to have acquired false tax documents and a fake identity. He managed to attend the branch, open a bank account and line of credit. Bank staff trained in fraud detection secretly alerted law enforcement and arrested the accused after conducting surveillance on him. The Firm was able to resolve the matter after conducting a judicial pretrial and a contested guilty plea. The Firm was able to dispose of the most serious charges and the accused was granted a conditional discharge.

Punishments for Theft Depend on the Value of Property

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In 2023, the Firm represented an individual charged with theft under $5,000 in R. v. M.F. [2023]. The accused was terminated from his place of employment and arrested after a box of merchandise went missing. Security cameras confirmed the accused took the merchandise to his desk prior to it going missing. The Firm reviewed the disclosure, pointing out various issues early on in the case. After Crown negotiations the Firm resolved the matter with the withdrawal of the charge. Just because there is evidence of theft, even surveillance, doesn’t mean its always legally admissible. The defence was able to exclude this evidence in the context of the prosecution.

In the Firm’s R. v. O.I. [2019], it managed to resolve a $170,000.00 combined civil and criminal internal employee fraud allegation without a criminal record. The employee was allegedly returning false merchandise and diverting the money to his personal bank account. The company discovered the loss through an internal audit and tracing the transaction records to his bank account. The Firm was able to exclude a significant portion of the alleged loss by challenging the inventory evidence presented by loss prevention of the company.

The Firm further secured a a withdrawal of theft under $5000 for a Doctor caught with over $3000.00 in merchandise from The Bay in its R. v. S.Y. [2016]. The Firm was also able to destroy his records and protect his license to practice, passing a vulnerable sector check. Jordan Donich has worked with The Bay Corporate Headquarters in New York to resolve internal employer-employee theft rings in Toronto before criminal charges are even reported to police.

How to Defend Theft Under $5000

In July 2017, the Firm resolved an $18,500.00 cash theft from a CIBC bank employee on the job without a record, in its R. v. D.D. [2017]. The employee was caught on video free bagging money at the downtown Toronto headquarters. The Firm brought a CIBC representative to the judicial pretrial with the Crown which secured the unusually lenient outcome.

In March 2016, the Firm resolved a $1,500.00 Fraud and Theft Under $5,000 allegation from The Bay, without a Criminal Record, where a Bay Street employee was charged with Shoplifting and caught by undercover security in the menswear department in its R. v. C.T. [2016]. The Firm further secured a withdrawal of nine (9) charges of Theft and Fraud from The Bay after a year of litigation in its R. v. G.E. [2016]. In the Firm’s R. v. G.G. [2015], it successfully defended a BMO bank teller charged with Theft and Fraud Under $5,000 for allegedly robbing the bank on the job. All charges were withdrawn. In all of the above noted cases there was video surveillance implicating the accused.

The Firm secured a withdrawal of eight theft and fraud charges in its R. v. K.L [2015], including Conspiracy to Commit an Indictable Offence for a Target Canada and Staples Shoplifting Ring. In its R. v. J.A. [2016], the Firm secured a withdrawal of three theft, attempt theft and fraud charges against the accused who was allegedly involved in an internal employer-employee theft ring where $3000 in Blue Jays merchandise went missing from the Rogers Center.

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Frequently Asked Questions

What is the Charge of Theft or Shoplifting?

“Colour of right” is the legal right to possess a piece of property. Section 322(1) of the Criminal Code codifies theft as when someone “fraudulently and without colour of right” takes or converts to their use or the use of another person of any thing, whether animate or inanimate, with intent to deprive the original owner of the property of the property. In addition, the intent can also be to deposit the property as a security; part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or to misuse or deal with it in such a manner that it cannot be restored to its original state. Essentially, theft is when someone takes something that does not belong to them with the intent to deprive the rightful owner.

Section 322(2) of the Criminal Code describes the precise timing of when theft is complete. The time when theft is complete is when the person moves the item or causes it to be moved or begins to cause it to become moveable.

For example, the crime of bicycle theft begins when the offender tries to undo the bike lock. In addition, the Criminal Code describes the taking or conversion of anything without the colour of right may be fraudulent regardless of whether or not there was secrecy or concealment.

What are Restitution Orders in Toronto?

Section 737.1(1) gives the court the power to make a restitution order. If an offender is convicted or discharged under section 730 (a conditional or absolute discharge), the court is required to consider making a restitution order under section 738 or 739. Restitution orders are an ancillary order the Court can enter at sentencing. The offender must pay a sum of money to the victim(s) in the case.

Before imposing sentencing, the Court must ask the Crown whether the victim(s) sought restitution from the offender. If the victim(s) did want it, the Crown would then describe the amount, which must be reasonable. An offender may need to pay restitution for incidents such as property damage, theft, or identity theft.

The order may tell the offender to pay the restitution, but it is difficult to enforce. The person seeking the restitution, if it was not received, would have to sue the offender again in the civil court. Then they would be able to get an order from the civil court to enforce the restitution order. The civil court can offer remedies such as garnishing the offender’s wages. The offender’s capabilities or ability to pay the restitution order does not factor into whether the order should be made or not.

How is Theft Different from Fraud?

Fraud is enumerated under s. 380 of the Criminal Code, a person commits fraud when they knowingly trick or deceive another person for money or other goods and services.

Theft requires the movement of property, whereas fraud refers to benefitting from deceit. Theft and fraud, though similar and often correlated, are different under the Criminal Code.

Theft is when someone moves an object or property without the consent of the owner. Theft does not require the intent to defraud, nor does it require any deception on the part of the accused, it only requires movement of the object. A person can be fully honest about the taking of property, but that is still theft if the owner did not consent to it.

Fraud is when a person, through deception or misrepresentation, deprives someone of money, property, valuable security, or any other service. To prove fraud, the Crown needs to prove beyond a reasonable doubt two things: that (1) there was an intent to defraud and (2) there was a loss suffered by the victim. Fraud requires deception, while theft does not.

The penalties for theft and fraud are also different. In Canada, offences are categorized into three categories: summarily elected, indictable, or hybrid. When a Crown chooses to summarily elect an offence, it means that the offence is kept in the jurisdiction of the provincial court and usually results in lesser penalty, ranging in sentencing from a on-custodial sentence to two years less a day in prison. Indictable offences may result in up to 14 years of imprisonment. Hybrid offences are elected by the Crown to be either indictable or summarily elected. Section 334(a) describes theft over $5,000 as an indictable offence. Section 334(b) describes theft under $5,000 as a hybrid offence. Section 380(1)(a) describes fraud over $5,000 as an indictable offence, while fraud not exceeding $5,000 is a hybrid offence enumerated in s. 380(1)(b).

What are the Best Defences to Theft?

One of the primary defences to theft is the “Lack of Intent” defence. The accused may have accidentally moved an object without intent to deprive the rightful owner. To prove and convict theft, the Crown must prove the essential criminal element of a mens rea, that is, a “guilty mind.” The Crown must prove that the accused did intend to move the object. However, if the person accidentally and/or unknowingly takes an object, they cannot be convicted of theft.

Another defence to theft would be the “colour of right” defence. The “colour of right” is a legal term referring to a person’s legal right to a property. If an individual genuinely believes they have the colour of right to a piece of property, they cannot be convicted of theft of that property as they did not have the intent to steal or deprive someone of their property. For example, if a person mistakenly believes an object is a gift to them and takes it, they may be acquitted of theft due to a lack of intent of stealing.

What if You Believed the Item was Yours?

The mistaken belief that the accused had the “colour of right” or legal rights to an item is a defence that can be made in the event of a charge. If a person legitimately believes that they had the right to that item, they did not have the intent of stealing it or committing theft. The Court cannot convict a person who did not have the intent of committing the crime. The colour of right can be ascribed to a person when they paid for the property or was gifted the property. An accused may have an honest but mistaken belief that they had the colour of right to move an object. This honest but mistaken belief must be reasonable. The court will determine what is reasonable on a case-by-case basis.

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Recent Cases

R. v Tobo, 2023 ONSC 3742

In the Ontario Superior Court of Justice case of R. v. Tobo, the accused pled guilty to one count of theft under $5,000 and one count of breach of probation. He stole a carton of cigarettes in Ottawa despite knowing he was on a court order with a term to not attend that store.

In the sentencing, the Court considered several aggravating and mitigating factors. An aggravating factor is a 20-year record of over 100 convictions related to property offences. The accused admitted he had a cocaine problem and engaged in non-violent thefts. Mr. Tobo wished to address his addiction and is open to sharing medical information. Unsure as to what to do in this situation, the judge ordered a pre-sentencing report and ordered the matter to return in August of 2023.

R. v. Chung, 2021 ONCA 188

In the Ontario Court of Appeals case of R. v. Chung, the appellant was convicted of one count of theft under $5,000, three counts of possession of property obtained by crime (30 lottery tickets that won nominal or no prize, one winning jackpot ticket, $12.5 million), one count of theft over $5,000, one count of defrauding the OLG of $12.5 million. The family ran a convenience store and stole lottery tickets from customers. The daughter cashed in the prize. In their sentencing decision, the trial judge found that deterrence was the paramount sentencing principle. The father was sentenced to seven years, the son was sentenced to 10 months, and the daughter was sentenced to four years. In addition, the daughter and the father were ordered to pay restitution of $12.5 million, forfeit $7.5 million, and pay a fine of $2.3 million each.

Due to the complexity of the case, there was a delay in the case, and a section 11(b) Charter application was entered. However, the Court of Appeals agreed with the trial judge that this was a complex case that involved a large quantity of disclosure, lengthy preliminary inquiry, expert witnesses, scheduling, and multiple co-accused. The section 11(b) application was rejected.

R. v. Buswa, 2023 ONCJ 146

In the Ontario Court of Justice case of R. v. Buswa, the accused pled guilty to theft of a donation box, break and enter, and prowl by night. During the sentencing, the Court considered several aggravating circumstances such as the lengthy criminal record, the repetitive nature of the offences, the theft of donation jars (stealing from charities), as well as the theft of tip jars (stealing from minimum wage workers). Some mitigating factors were the offender’s indigenous heritage, his lack of specific background information, mental health challenges, homelessness, and substance use and addiction.

The primary sentencing factor in this case was deemed to be rehabilitation. As the offender was indigenous, it was important for the Court to pay attention to his particular circumstances as well as the impact of the pandemic. The offender was sentenced to a suspended sentence and probation for one year.

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.