First Offenders and Theft Under $5000 Charges
Theft and the Criminal Code
The Criminal Code and Fraud
Possession of Property Obtained by Crime
Elements of Shoplifting Charges
First Offenders Facing Charges
Theft and the Criminal Code
All criminal laws are set out in the federal government’s Criminal Code. There are a number of laws that could apply in the shoplifting context. The Criminal Code sets out what laws you could be charged with and what the requirements of an offence are. The wording in the Code is important because it tells you what the Crown must prove against you to show that you committed an offence.
Knowledge of your criminal charges and some of the surrounding circumstances is very important when you are preparing your defence. The main section of the Criminal Code that will apply in the shoplifting context is “theft,” a crime under Section 322 of the Criminal Code. It reads:
- (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(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.
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.
There are other provisions in the Criminal Code that are based on the theft charge laid out in Section 322. Some examples include thefts of:
- Telecommunication services (Sections 326 and 327)
- From a person having special property or interest (Section 329)
- By someone required to account (Section 330)
- By someone holding power of attorney (Section 331)
The Criminal Code also sets out some offences that resemble theft including:
- Taking a motor vehicle or vessel without permission (Section 335)
- Criminal breach of trust (Section 336)
- Destroying documents of title (Section 340)
- Fraudulent concealment (Section 341)
- Theft, forgery of a credit card (Section 342)
Other charges that could arise in the shoplifting context include:
The Criminal Code and Fraud
- (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Possession of Property Obtained by Crime
- (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
Proof of Shoplifting Charges
Section 322 of the Criminal Code explains what the crime of “theft” actually means in law. There is an onus on the Crown to prove all elements of a theft charge beyond a reasonable doubt.
The Criminal Code can be confusing for someone unfamiliar with law or how it works. Counsel can help you understand the criminal process and the charges against you. While the Criminal Code sets out the charges against you, the common law often explains what the law means and tells judges how to interpret and apply the Criminal Code.
The words of Section 322 state:
- (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(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.
What this actually means is that to be convicted of shoplifting, the Crown must prove the accused:
- Took or converted anything;
- Fraudulently without permission and without a good faith belief;
- The charged person intended to so.
Over the years, judges and lawyers have argued at length about the meaning of these requirements:
“Takes or Converts”
To take or convert can include a situation where you receive property by mistake if you know of the mistake and do nothing to correct it. For example, if someone pays an invoice for services twice by mistake and you know about the mistake, it is possible you could be charged with theft. This is an example of a theft by conversion, since you did not take the actual thing. Conversion covers situations where there is no initial taking.
“Anything”
Theft charges can result from the taking or converting of anything. It is not restricted to tangible items. However, for the property to be the subject of theft charges it must be capable of being “taken” or “converted”.
“Fraudulently”
For conduct to be fraudulent, it must be morally wrong. It must be one intentional, under no mistake and with knowledge that the property belonged to someone else.
“Colour of Right”
Colour of right is a defence to a theft charge. It involves a claim of a belief in a proprietary or possessory right to the item. It does not depend on whether or not you had any actual right, it is all about whether or not you believed you had a right.
First Offenders
Being charged with a criminal offence for the first time can be an intimidating and frightening experience. It is also a very serious matter. You will likely have received documents and instructions from the police upon your arrest. You may not understand what they mean. Some of them might even require you to follow conditions, which prohibit you from doing things you are accustomed to doing. All of them will require you to attend court on a specific day.
If you are trying to keep your shoplifting charges a private matter, you may also feel alone and isolated from your family and friends. It is important you reach out to experienced counsel to protect yourself and to help you deal with your charges. We will help you understand your shoplifting charges and the consequences you are facing.
Any criminal charge is a serious matter, even if you are a first time offender. When a charge is laid against you the following things happen:
- There is a record of that charge in the police system. This may be shared with other police departments and law enforcement agencies.
- There will be a record of your form of release and any conditions you must follow.
- You will have a court date.
- The Crown Attorney’s office will have a file with your information and the evidence against you.
- Anytime you appear in court it will be a public proceeding and a transcript will be created.
- You will likely have to give your fingerprints and photograph to police on a given day.
Some of these records will continue to exist indefinitely, even after your matter has concluded (and even if you receive a discharge or withdrawal of the charge). It is very difficult to have all evidence of criminal charges erased.
In order to protect yourself, you should consult and retain experienced counsel at the early stages of your shoplifting charges. We can help protect your interests at every step of your proceedings.
It is important to remember that all criminal charges are serious and first time offenders should recognize this and seek help early on in the process to achieve the best long-term protection and results from counsel.