Is There a Difference Between Theft and Shoplifting?
Shoplifting is a specific type of Theft and arises when someone takes product from a retail store such as The Bay, Winners, Canadian Tire, Home Depot, Whole Foods or Sephora without paying for it. Generally these individuals will be charged with Theft Under $5,000.
We frequently handle cases where people charged with Shoplifting are also charged with Possession of Stolen Property.
The Firm regularly defends allegations of Theft and Fraud Under $5,000. Our objective is resolve your charge(s) efficiently and without a Criminal Record confidentially without your friends, family or employer discovering.
What Happens Once you Have Been Arrested and Taken Into Custody?
Being criminally charged can be a confusing, upsetting and traumatic experience for anyone and these negative feelings may be compounded for first time offenders who are unsure of how the court process works. Upon being criminally charged you will likely have been provided with paperwork by the police outlining the charges against you and the next date you will be required to appear in court. In many cases, there will be conditions attached to your release. You will be required to comply with these conditions until the criminal matter against you has been resolved or until you have been told otherwise by the court.
Common conditions that may be attached to one’s release include; no contact provisions, requiring you to stay away from particular people or places, you may be required to remain inside your residence during certain hours or you may be barred from leaving the province. Should you fail to abide by any of the conditions imposed upon your release, you will likely face further criminal charges and will likely have your bail revoked, meaning you may remain in custody until your criminal matter has been resolved.
Court documentation can be difficult to understand for people who are not familiar with the court system. Contacting qualified legal counsel is an important step in resolving your criminal matter. Our Firm can provide you with all the information you need to make an informed decision. We will ensure you fully understand the charges that have been laid against you, the possible consequences of those charges and all of your options moving forward.
Regardless of whether or not you are a first time offender, being criminally charged is a very serious matter. Once you have been formally charged by the police the following things will take place:
- The police will make a record of the charge(s) against you in their system. This information is often shared with other police and law enforcement agencies.
- The police will make a record of the form of your release (for example on bail or on your own recognizance) as well as any conditions you must follow.
- You will be provided with your next court date. You will be required to appear in person in court on that date. Failure to do so will likely result in a warrant being issued for your arrest.
- The charge(s) against you will be sent to the Crown Attorney’s Office where a file will be made and the Crown will begin compiling information to make their case against you. This file is called a disclosure. Your defence lawyer will be provided with a copy of the disclosure at a suitable time.
- Any time you appear in court it will be recorded on the public record and a transcript will be created by the court reporter. Any member of the public is permitted to come view the proceedings against you.
- In most cases you will be required to have photographs and fingerprints taken by the police to be kept on file.
The record of the charges against you as well as any evidence used against you will likely be kept by law enforcement long after your criminal case has left the court system. There is a large backlog in removing cases from the law enforcement system in Canada, meaning your matter will likely remain in the system for quite some time even if you have received a conditional discharge or withdrawal of the charges against you. It is possible to hire a lawyer to move this process along and ensure you matter is expunged from your record in a more timely manner. If however, you have received a criminal conviction, the charge(s) against you will remain on your criminal record forever. Given the fact that a criminal record has the potential to severely effect one’s life well into the future, it is imperative to consult qualified legal counsel immediately upon arrest.
In most cases once you are arrested you will be transported to the police station to be processed. The police will collect personal information about you including taking photographs, fingerprints and searching your past criminal history. In most cases you will be released from police custody the same day. Upon being released the police will provide you with documents outlining what you have been charged with and when you will need to next appear in court. Depending on the severity of your crime, you may need to post bail. In some cases the accused will be allowed to post bail on their own and in other cases a surety will be required. In less serious cases you will be released on a Promise to Appear, which means you do not need to post bail but you must promise to appear at your next court date.
If the charge against you is particularly serious or the police have deemed you a threat or a flight risk they may deny bail and hold you in custody. You may be held in custody until a judge is satisfied that your release would no longer pose a risk. In cases where an accused is held in custody without bail, they will be given an opportunity to go in front of a judge and have a bail hearing. If bail is denied at the bail hearing the offender will remain in police custody potentially until the matter has been resolved.
In cases where the accused is released the same day, they will be provided with one of two possible forms:
- Form 9 – Appearance Notice
- Form 10 – Promise to Appear
These forms will outline the charges against you, any conditions that have been attached to your release (no contact with certain individuals or places, remaining inside your residence during certain hours, etc.) and your next court date.
Appearance Notice – Form 9
An Appearance Notice (Form 9) is the first type of documentation that may be given to an individual who is being released from police custody upon being criminally charged. An Appearance Notice outlines the charges against you and indicates that you have been released from police custody. The notice will contain the following information: your background information including your name and address, the charges that have been laid against you and when and where you will be required to appear in court. The form will also indicate whether or not you will need to visit a police station to provide photographs and fingerprints.
An Appearance Notice is a very serious legally binding document. Should you fail to appear for your court date, a warrant will be issued for you arrest and further criminal charges could be levied against you. In addition, this failure to appear will act as an aggravating factor in your case and will make leniency from the judge less likely.
Promise to Appear – Form 10
A Promise to Appear (Form 10) is the second type of documentation you may be given upon being released from police custody after being arrested. The information outlined in the Promise to Appear will be the same as the information outlined in the Appearance Notice. The Promise to Appear will include your name and address, it will list the charges against you, when and where you will need to appear in court and whether or not you will need to visit a police station to provide the police with photographs and fingerprints. Before being released from custody the police will require you to sign the Promise to Appear document. If you refuse to sign the document you will not be released from custody. Signing the document is your agreement that you will attend your next court date and abide by any and all conditions stipulated in the document.
The Promise to Appear document is a legally binding contract between you and the court system. Should you fail to abide by this agreement and miss a court date or fail to comply with the conditions of your release, a warrant will be issued for your arrest and further criminal charges could be levied against you.
A Promise to Appear will generally come with conditions attached to it. The accused will be required to comply with these conditions until the criminal matter has been resolved or until the conditions have otherwise been lifted. These conditions will be listed in Form 11.1 Undertaking Given to a Police Officer or Officer in Charge. This form will outline all of the conditions which the accused must comply with. The conditions imposed are similar to conditions imposed on those who have been released on bail. An accused must agree to abide by the conditions of their release before the police will release them. Failing to comply with any of the conditions will result in a warrant being issued for the accused’s arrest, and in many cases to additional criminal charges being filed against the accused. The Police will decide on which conditions are appropriate and have significant discretion when determining which conditions they will impose. Some conditions that are commonly imposed include; refraining from consuming drugs and/or alcohol, informing the police of any change in address, residing at a court approved residence, refraining from having contacting with certain people or places, abiding by a curfew and/or informing the police of any changes in employment.
Which conditions the police decide to impose will generally depend on what the accused has been charged with, the severity of the crime allegedly committed and the accused’s past criminal history.
What are the Consequences of Having a Criminal Record?
Having a criminal record can have implications on all aspects of a person’s life. Depending on the type and severity of the charge these implications can be quite serious.
Employment – Having a criminal record can have serious implications on employment opportunities. The vast majority of employers in today’s job market will require a criminal background check prior to hiring any employee. Employers are often highly reluctant to hire individuals with criminal records. Having a criminal history can potentially overshadow a potential employee’s education, experience or other accomplishments.
Immigration – Citizenship and Immigration Canada requires all applicants undergo thorough background checks as part of the immigration or permanent resident process. Having a criminal record can seriously impact immigration applications and it is very likely that those with a criminal history will be denied immigration or permanent resident status.
Travel – Travel outside of Canada can be impacted by having a criminal record. Many foreign jurisdictions will not admit those with a criminal history. The United States in particular is likely to refuse entry to those with criminal histories, especially when the criminal history is more serious. If you have a criminal record and would like to travel to the U.S. it is recommended that you obtain a U.S. Waiver of Inadmissibility to ensure entry.
Community and/or Personal Life – A criminal record can also have negative implications on an individual’s community or personal life. Having a criminal history can cause an individual to be stigmatized within the community and can have negative implications on their reputation. A criminal conviction can also have negative implications on the individuals relationships with their friends and family.
Keeping Charges Private
Can I Keep my Charges Private From my Family and Friends?
Often times, offenders will not want to disclose their criminal conviction to their friends or family. They may fear damaging their reputation or being looked at differently by those who are important to them. In most cases it is up to the offender to disclose their criminal conviction to their friends and/or family. Any information provided by the accused to their attorney will be kept private through attorney client privilege, so this information will not be disclosed to the defendant’s friends or family without their consent. It is important to notify your lawyer from the very beginning if you do not want communications regarding your case to be sent to your home for fear that a family member will see it. It is important to remember that all court proceedings are public record and everything said in court will be recorded in a transcript.
Our Firm can work with you to keep the charges against you private from your friends and family. It is important that you disclose the fact that you would like to keep your charges private from the outset of the case so that arrangements can be made to ensure your wishes are met. Please let us know your preferred method of contact. Additionally, our Firm may also be able to accept service of documentation regarding your case to avoid you being served at home or at work.
Will my Community Learn of the Charges Against me?
Though The Firm will do everything it can to help you ensure your charges stay private, it is important to remember that all court proceedings are part of the public record. Any member of the public is free to come view court proceedings. Additionally, everything said during a court proceeding is recorded on the transcript as part of the public record. Our Firm can work with you to minimize the amount of exposure your criminal charge has to the community in order to keep it as private as possible. If you would like your criminal charge to be kept confidential from the general community please let us know from the outset and we can work with you to achieve this goal.
Once my Matter has Concluded, will People Learn of my Charges?
The answer to this question is it depends. In cases where the criminal matter has been resolved without a criminal conviction (with a withdrawal of the charges or an absolute discharge) it will be much easier to keep the charges private. Without a criminal conviction being entered on the record. If however a criminal conviction results, keeping the charge private will be much more difficult. The conviction will appear whenever the criminal background of the accused is run. A criminal background check is commonly run in employment situations, when traveling outside of Canada and for immigration and citizenship purposes. It is important to discuss the possible consequences of having a criminal conviction on your record with your attorney to ensure you have all the necessary information pertaining to your matter.
Criminal Record Checks
In today’s job market most employers will require a criminal background check before they will hire you. In most cases your local police department can run this background check for you. This criminal background check will list all of the crimes you have been convicted of and when you were convicted.
If you have been charged with a criminal code offence and are concerned that it will hurt your chances of obtaining employment in the future contact qualified legal counsel as soon as possible to find out what your options are moving forward. Your lawyer will likely need to know all the details of your case before they can provide you with your options as each case is unique.
Vulnerable Sector Check
When applying for certain employment or volunteer positions you will be required to provide a vulnerable person sector check. This is often the case when you are applying for a position where you would be in a position of authority or where you are dealing with a vulnerable group of individuals such as children or the elderly. A vulnerable Sector Check will indicate whether or not you have been convicted of any crimes and will also outline any other police records about you that may be relevant to your employment or volunteer position.
How Can Travel Outside of Canada be Affected by Having a Criminal Record?
Traveling to foreign jurisdictions can be severely impacted by having a criminal record. Many countries all over the world question those seeking entry to their countries about past arrests and whether they have a criminal record. Foreign jurisdictions have the right to refuse entry to anyone who has a criminal record, and many jurisdictions regularly exercise this right. In particular, the United States commonly turns away Canadian travelers who have criminal records. The United States reserves the right to refuse entry to anyone who has been convicted of a crime of moral turpitude. The majority of crimes in Canada are considered crimes of moral turpitude, so it is important to consult with legal counsel prior to attempting to travel to the U.S. with a criminal record. If you wish to travel to the United States and have a crime of moral turpitude on your record it is important to apply for and obtain a U.S. Waiver in Inadmissibility prior to attempting to cross the border. Though having a criminal record does not make travel to foreign jurisdictions impossible, it can make it more difficult.
What is a Waiver of Inadmissibility?
A Waiver of Inadmissibility is an application made to the United States government requesting admission into the United States despite that fact that you have been deemed inadmissible. Those with criminal records are often deemed inadmissible for entry into the U.S. however this is not the only way an individual can be deemed inadmissible. It is imperative that you apply for the waiver as soon as you learn of your plans to travel to the U.S. as the application process can be lengthy and there is no guarantee that your application will be granted.
How Does the Waiver Process Work?
To apply for a waiver of inadmissibility you can visit the U.S. Citizenship and Immigration Service website. There are several different types of inadmissibility waivers and it is important that you select and fill out the correct application. Your application will not be reviewed until it has been completed in its entirety. Once you have filled out your application you can file it at either a preclearance location inside Canada or at the Port of Entry at which you plan to enter the United States. Not all Port of Entry locations accept waiver submissions so it is important to do your research before going to the Port of Entry. Upon submitting you application you will be charged a $575 USD application fee which will need to be paid in full before you application is reviewed. This fee is non-refundable regardless of the outcome of your application.
Different types of waiver applications will require different supporting documentation and it is important to ensure you have submitted all the necessary documentation at the time of filing your application. The documentation required for each application could vary significantly. Consulting qualified legal counsel before beginning this process may be advisable to ensure you have filled out and submitted all of the correct documentation. Commonly requested documents for waivers of inadmissibility relating to criminal records include: the application signed and completed, a criminal record check, a personal information form, proof of citizenship, a copy of the court record of any of your convictions, a copy of your criminal file, a copy of your fingerprint chart (this can be taken and obtained from a U.S. Customs and Border Protection Officer) and a statement outlining your intended activities while in the United States.
For applications where a finger print chart is required, if you have applied by mail your finger print chart will be taken by a U.S. Customs and Border Protection Officer after the rest of your application has been processed. Once you have sent in your application you will receive instructions on when and where you can have your finger print chart taken. If you submit your application in person and a finger print chart is required it will likely be taken at the time you submit your application.
It is recommended that you consult qualified legal counsel with experience in U.S. waivers of inadmissibility before sending in your application. This is to ensure you have selected, filled out and included all the correct and necessary information and documentation for your particular application. If your application is granted it is important you carry all of your paperwork with you during your travels to the United States.
Mitigating Factors in a Criminal Case
When a court is deciding a criminal case they will look at both mitigating and aggravating factors in the case to determine what a just and fit sentence in the case will be.
Some mitigating factors that courts use in criminal cases to determine a fair sentence for the accused include:
- Whether there was “substantial recovery” of the proceeds of the crime
- Whether the defendant voluntarily paid restitution prior to sentencing
- Whether there was an honest motive for the crime, including a medical condition, addiction, or other motivating cause other than greed or financial gain
- Whether the accused suffered major personal impact from offence, such as loss of job
- Whether the offender has strong ties to the community
- Whether the offender has a criminal record
- The age of the offender (youthfulness of offender)
Your defence lawyer will also likely bring up any other mitigating factors that may be relevant to your case. This could include personal background information about you, what led to the crime being committed and how the commission of the crime has affected the offender since. Your defence lawyer will try to paint you in the best light possible to ensure the judge imposes the lightest sentence possible in the case.
When are Mitigating Factors Relevant in a Criminal Case?
Mitigating factors can be incredibly important at various stages of your criminal case including before, during and after your criminal trial. Upon being initially charged with a criminal code violation, mitigating factors will influence the Crown’s position on how to move forward with the criminal charges against you. If you have been charged with a hybrid offence mitigating factors may influence the Crown’s decision of whether or not to proceed by summarily or by indictment. Mitigating factors could also influence the possible plea deals the Crown is willing to offer you before the trial stage of the case. Finally, mitigating factors can influence the Crown’s position on possible sentences should you be convicted of the offence. It is important that your defence attorney communicates any and all mitigating factors to the Crown as soon as possible. It is important you notify your attorney of any mitigating factors that they may not already be aware of.
Mitigating factors are also highly relevant during the sentencing phase of a criminal trial should the offender be convicted. Once you have been convicted of a crime, the judge presiding over the case will weigh both the aggravating the mitigating factors in the case to determine what a just and fit sentence would be. Section 718.2(a) of the Criminal Code states that judges in criminal cases are requires to either increase or decrease an offenders sentence based on the aggravating and mitigating factors in the case. Aggravating or mitigating factors are relevant to one of two central themes of sentencing:
- The severity of the offence (defined by the offender’s culpability and the harm caused)
- The ways in which the character and conduct of the accused relate to sentencing objectives
What are Some Examples of Mitigating Factors?
Though the Criminal Code does not provide a list of mitigating factors to be used in determining a fair sentence in a criminal trial, judge made case law has established a list of mitigating factors that the courts may use to determine a fair sentence in a particular case. Some examples of mitigating factors include:
Acts of Reparation or Compensation – Actions taken by the offender before the beginning of the proceedings to remedy the situation or provide some sort of compensation to the victims.
Age – Youth offenders or those who are elderly will be treated more leniently.
Collateral Consequences – Physical, emotional, social or financial consequences suffered by the offender as a result of the criminal charge against them. This shows that the offender has already suffered as a result of their crime.
Delay in Prosecution – Delay that is serious but not amounting to a Charter breach (s. 11(b)) may be a mitigating factor.
Employment Record – If the offender has a robust record of prior employment this will demonstrates pro-social responsibility on the part of the offender.
Evidence of Impairment – Emotional, physical and psychological factors that impair judgment. It is important that the gravity of the sentence match the gravity of the crime and thus less culpability is placed on those who were impaired in some way at the time of the crime.
First Time Offender – If the accused is a first-time offender this will likely work in their favour.
Gap in Criminal Record – If the accused has a past criminal record but there has been a lengthy gap of time between their last offence and their current criminal charge.
Guilty Plea and Remorse – Courts will view an early plea deal or the fact that the offender has demonstrated remorse for their actions as a mitigating factor in a criminal case.
Immaturity – If an offender is particularly immature at the time the offence is committed this may work in their favour upon sentencing.
Prior Good Character – Past achievements and/or positive opinions from coworkers, family or friends may help show the behaviour is out of character for the offender. Character references from reputable individuals in the offender’s life will be helpful to prove the good character of the offender.
Provocation and Duress – Although this will not be considered a full defence at trial, the presence of some provocation or duress may be relevant at sentencing to reduce the degree of moral blameworthiness.
Rehabilitation Efforts after the Offence – If an offender has been previously charged with an crime relating to issues involving drugs, alcohol or anger managements, taking steps to seek treatment and improve these situations will be a mitigating factor for the offender.
Unrelated Acts of Charity of Bravery – Courts may give mitigating credit to individuals who have shown acts of bravery or charity that are unrelated to the crime they have committed.
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