Possession of Property Obtained by Crime

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    POSSESSION OF PROPERTY OBTAINED BY CRIME Also known as  POSSESSION OF STOLEN PROPERTY

    This charge arises under Section 354 (1) of the Criminal Code which
    in essence makes it a crime to be in possession of property which the person knew was obtained directly or indirectly from the commission of an indictable offence.

    It is common that this charge is laid along with other charges such
    as theft or fraud.  Consequences of jail, criminal record and probation are just a few problems you will experience if convicted.

    FIRST TIME OFFENDERS

    Possession of Property Obtained by Crime Charges

    The Justice System is more lenient on 1st time offenders because they understand that people make poor choices.  The Court’s will generally give you a break if it is your first crime, including possession of property obtained by crime.

    1st time offenders are treated differently than persons with criminal records.

    If you are a 1st time offender, we can explain to you a number of options that we can pursue to have you pass through the Criminal System and possibly have:

    • Charges Withdrawn – No Criminal Record
    • Diversion – No Criminal Record
    • Absolute or Conditional Discharge – No Criminal Record
    • Conditional Sentence – House Arrest – keep your job – no jail
    UNDERLYING ISSUES TO THE CHARGES

    Possession of stolen property / possession of property obtained by crime is a very common property charge. There are many different Motivations and Reasons for an accused to be charged with this offence.

    • We dig deep to try to find the underlying causes or explanations that can lessen any impact upon you in the case and assist in having the charges either WITHDRAWN, DIVERTED, or have you receive an ABSOLUTE OR CONDITIONAL DISCHARGE WITH NO CRIMINAL RECORD.
    • And, if you are convicted and sentenced, we seek to help you avoid incarceration by pleading for a Conditional Sentence allowing you to serve your sentence under “HOUSE ARREST” where you can continue to attend work.
    Some Underlying issues of these offences are:
    • FINANCIALLY DRIVEN CRIME: In some cases, the commission of the offence is deliberate, and well-planned and/or part of an organized crime operation for financial benefit either of the individual or a group of individuals working together.
    • SUBSTANCE ABUSE DRIVEN – Sometimes commission of the offence is the result of a need to fund an addiction to substances.
    • COMPULSION – sometimes this offence is the result of a compulsion such as Kleptomania. Compulsions involve repeatedly failing to resist urges to steal items that are generally not needed by the person. Of course, when items are stolen and retained and a person is caught they will likely be charged with possession of stolen property / possession of property from the proceeds of crime. Often many items have little value or the person could have afforded to purchase them in the first place.
    • MENTAL HEALTH DRIVEN – In other cases a mental health component is driving the behaviour. The accused may be totally unaware of this and feel out of control.  Anxiety, Depression and other mental health conditions can contribute to or cause this kind of behaviour.
    • INTELLECTUAL DISABILITY – Occasionally an accused will have an intellectual disability as a result of an organic or acquired brain injury or birth issue. This can lower the capacity to understand the nature of their actions and appreciate their potential criminal consequences.
    • OUT OF CHARACTER BEHAVIOUR – these are one time events in a person’ life, brought upon by a multitude of factors that create a perfect storm for a person to commit certain offences. It is very, very common for a responsibly employed  person with a family, a steady job, and no prior criminal record, to go through a department store on their lunch hour and shoplift a small item, such as an umbrella or a necktie or a scarf.  If caught, they can be charged with not only shoplifting (theft) but also possession of stolen property/ possession of property obtained by crime.
    • MEDICAL INCIDENT CASES – in some cases a person will have a medical condition and commit a theft while in a state of mind that becomes foggy, such as in a diabetic sugar low, or an elderly person struggling with early stage memory issues like dementia. Any scenario can result in a person being charged with possession of property obtained by crime / possession of stolen property.

    Get started with a consultation

    Complete the form below or call 905-745-6180 to get started



      HOW WE CAN RESOLVE MATTERS FOR YOU

      Jail and Criminal Records are one way of dealing with Possession of Property obtained by Crime / Possession of Stolen Property charges. However, they are not the best result for the accused.

      We will dig deep to examine all underlying factors contributing to the circumstances of the actions that led to your being charged.

      If necessary, we will obtain medical reports and other records and send you for any assessments from our team of Psychologists and Psychiatrists to obtain proper documentation of relevant factors to assist you and the Court in making the best and most fair decision.

      We look at ALL AVAILABLE Options to Benefit you including:

      • Seeking approval of a Diversion Program with the result that the charges would be withdrawn upon completion of your conditions set out in the Program.
      • We would seek all other sentencing options that could result in more favourable outcomes including no records in some cases. Judges have the ability to order any of the following:
        • a conditional or absolute discharge under s. 730
        • a suspended sentence under  s. 731(1)(a) and (b) provided the sentence was not in excess of 2 years
        • a fine under s.  731(1)(b)
        • a conditional sentence (HOUSE ARREST) -s. 742.1.
      DIVERSION PROGRAMS: REPRESENT HOPE

      A program called Diversion is available for persons charged with Possession of the Proceeds of Crime / Possession of Stolen Property which will result in no Criminal Record for the accused in certain cases. This would be most applicable if the value of the stolen property  is less than $5,000  but in some cases may apply if the amount exceeds this sum.

      Many cities including Newmarket, Toronto, Brampton, Oshawa, have DIVERSION PROGRAMS which offer 1st time offenders the option to have the charge “Diverted” from the Court system and the “Charges Withdrawn” provided certain conditions are present.

      Each Courthouse has its own eligibility requirements for Diversion and theCrown’s Office will review the same to make that determination.

      In minor cases, the Crown views these kinds of charges as the least serious of all crimes as they are non-violent property crimes.

      For Diversion eligibility, the key points are:
      • In cases where the amount is minor, and the property is recovered – the Crown may pre-approve the case for the Diversion Program
      • Diversion is designed for persons with no prior contact with the Criminal Justice System.
      • If the accused has other pending charges, or prior dealings with police even if no charges laid, or charges laid and no conviction, it is unlikely that the matter will be Recommended for the Diversion Program.

      This is not to say that you will not receive Diversion. It will mean that you will need a good Criminal Defence lawyer in your corner advocating for Diversion on your behalf to help you overcome these issues to persuade the Crown on this or the Judge.

      The Crown will consider:

      • The character of the accused
      • The record of the accused
      • The value of the property shoplifted
      • If there was any actual loss
      • If same was returned or restitution made
      • Any cooperation of the accused at the time of arrest

      Requirements imposed to satisfy Diversion Programs are determined by the facts of each particular case and could include:

      • Make a charitable donation;
      • Complete a specified number of community service/volunteer work hours;
      • Both Charitable Donation and community Service;
      • Deliver a statement of apology to the victim;
      • Make restitution;
      • Complete a substance abuse program;
      • Complete an anger management program;
      • Any other mental health counselling;
      • Other – as may be determined by the judge

      Once the requirements of the Diversion Program have been met, the Defence Counsel can relay this to the Crown and ensure that the Charge is withdrawn against the accused.

      If a person is not pre-screened as eligible for the diversion program, a lawyer may be able to convince a Crown Attorney to reconsider their decision.

      Call Lawyer Up to see if you are eligible for the DIVERSION PROGRAM.

      CONDITIONAL SENTENCES

      In the event a client receives a sentence of less than 2 years, we can seek a “Conditional Sentence” result which would avoid the accused having to go to jail.

      A conditional sentence can be imposed by a Judge to allow a convicted accused to avoid having to spend time in jail and serve that sentence outside of jail under, under strict, jail‑like conditions.  This does not affect the fact that there will still be a Criminal Record.

      Conditional sentences are sometimes called “house arrest,” because they often require the offender to spend all or part of the sentence in their house.

      A judge can only impose a conditional sentence if:

      • the sentence of imprisonment is less than two years;
      • the offender has not been convicted of a criminal offence that requires a minimum amount of jail time;
      • the offender has not been convicted of a terrorism offence, serious personal injury offence, or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more;
      • the judge is satisfied that by serving the sentence in the community the safety of the community would not be threatened;
      • the judge is satisfied that having the offender serve the sentence in the community is consistent with the sentencing principles of the Criminal Code.

      Common Elements of Conditional Sentences

      • mandatory conditions, and restrictions will be in a conditional sentence that make it like a strict jail sentence. House arrest usually means that the offender must stay in their home at all times (or during certain hours) unless they are working, attending school or religious worship, or for medical appointments or emergencies.
      • Other conditions attached will be similar to those in a probation order. It is common for a probation order to follow a conditional sentence.
      • Supervision is by a conditional sentence supervisor (who is actually a probation officer)
      • every conditional sentence requires the offender to report to the conditional sentence supervisor at least once, but reporting several times can be expected
      • Breach of one or more of the conditions of a conditional sentence, will result in a hearing held in front of a judge.
      • If the judge is convinced that the accused broke one or more of the conditions without a lawful or reasonable excuse, the judge may make the offender serve the remaining time in jail.
      THINKING OF PLEADING GUILTY? THINK AGAIN!

      Sometimes you think of pleading guilty just to get it over with. But think twice. Not only are you exposing yourself to criminal penalties, but you may have defences. Also, there are many other consequences of conviction as listed below.

      OTHER CONSEQUENCES OF CONVICTION

      Potential consequences from a theft conviction include:

      • CIVIL LAWSUITS – you may be sued for the amount taken
      • EMPLOYMENT CONSEQUENCES – many employers require that you be bondable and/or have a criminal records search and a THEFT CONVICTION would make that extremely difficult upon you to find work in many industries. You may have ongoing security or criminal checks in your current employment that may result in loss of your employment
      • EDUCATIONAL RESTRICTIONS – many Colleges and Universities do not admit persons with certain Criminal Records
      • IMMIGRATION CONSEQUENCES – a conviction could seriously jeopardise your ability to remain in Canada if you are not a citizen and removal / deportation proceedings would likely be commenced
      • RISK OF BREAK OF PROBATION – if you are charged with another Criminal offence or BREACHING your PROBATION TERMS, you will likely face another Criminal Offence of Breach of Probation.
      • CRIMINAL RECORD – is a stigma publicly and personally
      • EXPENSE OF APPLYING FOR A PARDON – you will have to incur the expense of applying for a Pardon many years down the road
      • TRAVEL RESTRICTIONS – Having a Criminal Conviction will  create difficulty for future travel abroad alone or with your family, especially the United States and the U.K.
      TYPICAL CASES – POSSESSION OF PROCEEDS OF CRIME

      Typical examples where charges can be laid are where an accused is found in possession of the following types of items:

      • a stolen automobile
      • goods obtained by shoplifting
      • stolen property obtained by break and enter
      • Money or money’s worth or other goods obtained from the sale of stolen property
      • Receipt of money knowing it came from the sale of stolen goods or property or indirect benefits gained from stolen items.
      • Being in possession of items purchased with a credit card you knew was either stolen or obtained by fraud.
      SENTENCES

      Sentences for a conviction of possession of property obtained by crime are affected by many factors, including:

      • The background factors of the offence and offender
      • the value of the property
      • If the property value is under $5,000 – maximum sentence is 2 years
      • If the property value is over $5,000, or if the subject matter is a testamentary instrument, punishment is up to 10 years in jail;
      • The nature of the property
      • The impact upon the victim
      • The record of the offender
      PROBATION TERMS UPON CONVICTION

      In addition to any sentence you receive, you will likely be put on Probation. Some Probation terms are listed below.

      • PROBATION: In both cases you could receive Probation with terms to keep the peace and be of good behaviour, appear before the court when required to do so by the court; and notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupationand other typical terms such as report weekly to a probation officer
      • NO ALCOHOL or DRUGS PROBATION TERM: if drugs or alcohol were part of the reason for your theft: to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; AND, if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province
      • NO WEAPON PROBATION TERM:if the court is concerned about potential for violence they may order you to abstain from owning, possessing or carrying a weapon
      • RESTITUTION PROBATION TERM: Order to make Restitution
      • COMMUNITY SERVICE PROBATION TERM – perform up to 240 hours of community service over a period not exceeding eighteen months;
      • OTHER REASONABLE PROBATION TERMS
      CRIMINAL CODE PROVISION

      354 (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 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

      DEFENCES
      • ACTUS REUS ELEMENTS: These are the required “physical elements: of the offence that the Crown must prove. As part of your defence, we would seek to raise defences to each required element of the charge. The Crown must prove all of the physical essential elements of a s. 354 (1) charge beyond a reasonable doubt. These physical elements are:
        • the defendant was in possession of property,
        • the property was obtained by crime
      • MENS REA – This is the mental element requirement of the offence and requires the Crown to establish that you voluntarily and wilfully intended to come into the possession of stolen goods or the proceeds thereof. Without this element the Crown’s case falls apart. Many people innocently end up with stolen property. It is essential to bring out all the facts to demonstrate that an accused acted diligently and had no actual knowledge or was not wilfully blind as to the goods being stolen or the proceeds thereof being indirectly from this source. The mens rea element of the offence of Possession of property obtained by crime is:
      (i)  the defendant knew that the property had been obtained by crime.
      • SEARCH & SEIZURE DEFENCE – This is not so much a defence as it is a strategy to exclude evidence but is a crucial element in a solid defence strategy. Most charges arise as a result of a seizure of property in a home, car or other location. The Police have to follow legal requirements to obtain the right to enter property and conduct searches.  This usually requires a Search Warrant.  We closely scrutinize the validity of how the warrant was obtained and will bring all necessary motions to exclude any evidence improperly obtained in order to protect your constitutional right set out under Section 8 of the Charter which provides that “Everyone has the right to be secure against unreasonable search or seizure”.
      • POSSESSION: Under the Criminal Code a person has anything in possession when they have it in their personal possession or knowingly. Possession from a legal point of view is not a simple matter.  The easy cases are when an accused is caught with the stolen property in their physical control.  However, you do not have to have “actual physical possession” to be convicted as the law permits constructive and joint possession.  You can be legally found in possession when:
        • where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
        • you have it knowingly in the custody of someone else, for your use or another person.
        • you have it knowingly in a place (for example storing it there) whether or not that place belongs to or is occupied by you, for the use or benefit of yourself or of another person.
      • ACTUAL OWNERSHIP: if you in fact owned the property alleged to have been stolen this is a complete defence. You cannot be convicted of theft of something that you actually own!
      • COLOUR OF RIGHT: if you held an honest belief that you had a lawful right to the property when you did not, then this would be a defence. The onus is on the accused to establish the basis upon which you honestly and reasonably believed in this particular state of affairs.
      • CONTINUITY OF EVIDENCE – We insist that the Crown prove that the evidence in the case has been handled properly and in accordance with strict legal requirements.
      • CHARTER DEFENCES – If any of an accused’s Charter rights were violated these would provided a remedy including the dismissal or staying of charges against the accused or the exclusion of evidence. if the Police did not advise you of your right to remain silent, or right to counsel, and did not permit you to contact counsel promptly, or abused you in the course of arrest, or you failed to receive a trial within a reasonable time.
      • PROVE IT: We would insist upon the Crown to prove all elements of the offence Beyond a Reasonable Doubt. If a reasonable doubt exists on ANY of the essential elements of the charge, then the Crown’s case is not provable in Court and you cannot be convicted.
      WILFUL BLINDNESS IS NO DEFENCE

      If the circumstances suggest that the property might be stolen, such as being sold at a huge discount, or under unusual circumstances, such as out of a house that appears to be full of items shoplifted from stores, you would be unwise to purchase the item as it may be stolen.

      The Police may charge you if you did not pay attention to the “red flags” of items being stolen and the Court may convict you for being willfully blind to them even if you did not have actual knowledge they were stolen or where they were stolen from.Since the possession of stolen property charge requires finding the property, there is usually a search of the person, home or other belongings of the accused. When the police conduct a search, a good defence will always consider including arguments that that the search was in violation of the Charter rights.

      SHOULD I SPEAK TO THE POLICE & OTHER TIPS?

      Typically, any person potentially involved in a crime should not be speaking to the police before getting proper legal advice because:

      • They may or may not know that you were involved with any certainty. Using camera technology the police can track persons inside stores and into parking lots, get vehicle plate numbers and locate the owner of the vehicle. They’ll have a good description as well.
      • The Police may call you or show up at your residence when you are not prepared to speak to them.
      • The Police may say they are there to try to “clear up” a situation or to exclude you from being involved and ask where you were on a specific day and time. If you lie, you will have further problems.
      • The Police may try to tempt you by saying if you “cooperate” they may allow you to return the items or just make restitution without any charges. Remember that the Police  are there to conduct an investigation.
      • They are allowed to lie as an investigative tool in order to secure statements from persons they are investigating
      • Do not rely on “advice from the police” as they are not acting in your interest
      WHAT SHOULD I DO WHEN THE POLICE SHOW UP?
      1. Do not speak to the police.
      1. Do not make any decisions based on what the police tell you or before you have all the facts. Make that decision AFTER speaking to our office.
      1. Do not post evidence or comments online or speak to others about any potential crime as you create a public record.
      1. Do not speak to others about the potential crime as you’ll only create more possibility of witnesses against you.
      1. Advise them that you are exercising your right to remain silent and your right to contact your lawyer.
      1. They may take you into custody and arrest you but you are far better off in all criminal cases to make no statement to the police.
      1. Insist upon calling our office if you are arrested for advice.
      1. Remember that any statement you give will likely be used against you.
      1. If you give any statements, you end up pinning yourself down to a version of events that you are stuck with and that will hamper your defence.
      1. Do Not take any cel phone with you to the police station if you are taken into custody as the police commonly will do forensics on your cel phone while you are in custody.
      1. Do Not Consent to any form of Search of your home or vehicle. Police need a search warrant to conduct any search.
      REASONS TO CHOOSE LAWYER UP TO DEFEND YOU
      1. We know the Law: We understand the charges you are facing and have the skill to deal with the complex legal issues in them.
      1. Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !
      1. We are Fast: We will be in your corner from the first call.
      1. Unique Plan: We will develop with you a unique plan for your case. We will consider all of your personal factors, family, employment, immigration, travel and finances.
      1. We Listen: You can reach us by phone/email anytime.
      1. Progress Updates: Regular progress updates on your case.
      1. You are Never Alone: We communicate with you. You’ll never be in the dark.
      1. Peace of Mind: We’ll go to court for you so you don’t have to.
      1. We Go Above and Beyond to Have your Back: We are in Your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.
      1. Flexible Financial Plans: We’ll work out financial payments that you can manage.
      1. We See the Big Picture: We’ll protect ALL of your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.
      1. We seek to minimize all negative Consequences: We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.
      1. One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case you’ll save money.
      1. Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. Our goal is always to help you first to have a conviction-free resolution with NO CRIMINAL RECORD and second, to avoid any jail time, and in the worst scenario, from any harsh sentence.
      1. Fair treatment and Vigorous Defence: We are relentless to obtain an acquittal or resolution at the earliest opportunity for you. We do our best to ensure you receive fair treatment throughout and that any allegations are vigorously defended by tough negotiation, and tough cross-examination and protecting all your legal and procedural rights from beginning to end.