Theft

If you or your loved one has been charged with THEFT or if you think charges are pending, we understand the stress you are going through. We are here to help.

To PROTECT ALL YOUR RIGHTS it is important to contact our office to speak to a Theft Lawyer immediately as the criminal court system is very complex and penalties for Theft can result in very serious consequences to you.

As well, we understand the impact that any conviction can have on your life.  Read the “Other Consequences of Conviction” below to see for yourself.

Whatever your situation, Lawyer UP will be in YOUR CORNER.  We’ll find out what is at stake in your particular situation, and have all the angles covered for you. The last thing you want are surprises.

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.

2. 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.

3. Do not post evidence or comments online or speak to others about any potential crime as you create a public record.

4. Do not speak to others about the potential crime as you’ll only create more possibility of witnesses against you.

5. Advise them that you are exercising your right to remain silent and your right to contact your lawyer.

6. 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.

7. Insist upon calling our office if you are arrested for advice.

8. Remember that any statement you give will likely be used against you.

9. 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.

10. 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.

11. Do Not Consent to any form of Search of your home or vehicle. Police need a search warrant to conduct any search.

WHAT IS THEFT?

• Theft is a Criminal Code offence under Section 322(1).

• It is a “hybrid offence” under the Code, meaning that it can be prosecuted by way of “Summary Conviction” (for less serious offences eg. Theft under $5,000) and by way of Indictment (for more serious cases)

• Theft is a taking of property that doesn’t belong to you without violence as opposed to Robbery which is a taking of something with violence or threats

THEFT UNDER THE CRIMINAL CODE: DEFINITION

Theft
322 (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

• 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;
• to pledge it or deposit it as security;
• 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
• 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.

• Time when theft completed
  (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.
• Secrecy
  (3) A taking or conversion of anything may be fraudulent not with standing that it is effected without secrecy or attempt at concealment.
• Purpose of taking
  (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.
• Wild living creature
  (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.

DIVISION OF THEFT OFFENCES

Theft offences are generally divided into 2 categories. Each carries a potential for a Criminal record and negative collateral consequences.  In both of these types the Crown can proceed either by way of “Summary Conviction” or by the more serious “Indictment”.

THEFT UNDER $5,000

(note: equal or less than $5,000)

Two sentencing options are available, depending on how the Crown elects to proceed:

• By Summary Conviction – up to 2 years less a day in prison
• By Indictment – up to 2 years less a day in prison

COMMON EXAMPLES (THEFT UNDER $5,000)

1. Shop lifting
2. Gas station theft (Gas and Dash)
3. Theft from an employer
4. Theft of delivered packages (porch pirates)
5. Locker room thefts,
6. Theft from inside cars (or outside) eg. Catalytic converters
7. Theft from businesses, libraries, or community centers
8. Pet theft
9. Stealing a neighbour’s property
10. Bicycle theft

THEFT OVER $5,000

Two sentencing options are available, depending on how the Crown elects to proceed:

• By Summary Conviction – up to 2 years less a day in prison
• By Indictment – up to 10 years in prison

Note: In most cases for Theft Over $5,000 the Crown will elect to proceed by Indictment.

COMMON EXAMPLES (THEFT OVER $5,000)

1. Shoplifting – jewellery or items of a value over $5,000
2. Auto Theft
3. Theft from Bank Accounts
4. Theft of Construction Equipment
5. Theft of Artwork, Jewellery, Money, Antiques and other valuables
6. Theft of Audio and Visual Equipment, DJ Equipment, Musical Instruments
7. Theft of Construction Materials
8. Theft of expensive Computers and Computer Equipment
9. Theft of Cryptocurrency
10. Theft of Bank Funds

RELEASE AFTER ARREST

Although being charged with theft can be traumatic, most shoplifters on their first offence may not have to face a bail hearing and many will be released by the Officer in Charge after the accused person signs a Promise to Appear.

In cases where it appears that the shoplifting is for a criminal enterprise or a habitual and repeated behaviour, or the accused has a record, the accused will be held for a formal bail hearing.

ABOUT SHOPLIFTING

As noted above, shoplifting is one of the most common forms of theft.   There are many different Motivations and Reasons for Shoplifting:

• FINANCIALLY DRIVEN CRIME: In some cases shoplifting is a well-planned and organized crime for financial benefit either of the individual or a group of individuals working together.

• SUBSTANCE ABUSE DRIVEN – Sometimes shoplifting is the result of a need to fund an addiction to substances.

• COMPULSION – some shoplifting cases are driven by a compulsion to commit the crime. Kleptomania is one such example. Compulsions involve repeatedly failing to resist urges to steal items that are generally not needed by the person. Often many items have little value or the person could have afforded to purchase them.

• 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.

• 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 a shoplifting offence. 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.

• MEDICAL INCIDENT CASES – in some cases a person will have a medical condition and commit shoplifting 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.

DIVERSION PROGRAMS: HOPE FOR SHOPLIFTERS

A program called Diversion is available for Shoplifters which will result in no Criminal Record for the accused in certain cases.

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 the Crown’s Office will review the same to make that determination.

In minor cases of theft, especially shoplifting, 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 theft is minor, and the property 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:
  • Watch a video on Shoplifting;
  • 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 of the amount stolen;
  • Complete a substance abuse program;
  • Complete an anger management program;
  • Any other mental health counselling;
  • Other

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.

PENALTIES FOR A THEFT CONVICTION

The Criminal Code Section 334 does not provide any “Mandatory” or “Minimum” sentences for Theft.  Each case will depend on the facts and the approach taken by your lawyer in presenting your case and representing you and the Court’s approach towards your particular case.  Following are some penalties you can expect upon conviction for Theft:

• If prosecuted by way of summary conviction you face up to 2 years less a day in jail

• If prosecuted by way of indictment, you face up to 10 years in jail

• IN ADDITION YOU WILL LIKELY BE PUT ON PROBATION, some examples 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 occupation, and other typical terms such as report weekly to a probation officer

• OTHER REASONABLE PROBATION TERMS

• 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;

CRIMINAL CODE Section 334: Punishment for Theft

Reproduced below is the exact wording of Section 334 of the Criminal Code which sets out the punishment for theft:

Punishment for theft

334 Except where otherwise provided by law, every one who commits theft

• if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of
  (i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
  (ii) an offence punishable on summary conviction; or
• if the value of what is stolen is not more than $5,000, 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.

WHEN TO EXPECT HIGHER PENALTIES

Generally, the following factors will increase any Criminal Penalties Fines, Sentence, and Stiffer Probation terms:

• The higher the amount of the item stolen the greater will be the sentence
• Punishment penalties are higher for Theft Over $5,000
• Theft involving a Breach of Trust
• Theft from Charitable Organizations and those that benefit the community
• Theft from an Employer

HOW WE CAN RESOLVE MATTERS FOR YOU

Jail and Criminal Records are one way of dealing with Theft Charges but not the best for the accused.

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.

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.

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.

DEFENCES IN THEFT CHARGES

Every case is unique: a unique accused operating under unique circumstances. The nature of the theft, the item(s) involved, planning and deliberation, motivation, and the amounts are different. Thus, certain defences may be available in some cases but not others.

The 2 basic defences are:

• LACK OF “MENS REA” – meaning the lack of voluntary intention to commit the elements of the crime. Example: where you accidentally left a store without paying for an item.
• LACK OF “ACTUS REUS” – meaning that the actual physical elements of the offence are not present. Examples:
  • IDENTITY: you were not the one who committed the theft. If video camera evidence is not very clear it could raise a reasonable doubt as to identity.
  • NO ACTUAL “TAKING” of any item can be proven
• 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.
• 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.
• 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. E.g. 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.

SPECIFIC TYPES OF THEFT OFFENCES

There are many specific types of theft that are covered under the Criminal Code. Some of these include:

1. Vehicle Theft – s. 331.1 (1)
   (a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or
   (b) on summary conviction, to imprisonment for a term of not more than two years less a day.

NOTE: harsher penalties for multiple offences

2. Taking motor vehicle or vessel or found therein without consent (also known as “JOYRIDING”)
   335 (1) Subject to subsection (1.1), every one who, without the consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

3. Testamentary Instrument
   334 (a) – treated as regular theft except in practice likely to proceed by Indictment and carry harsh penalties

4. Theft, forgery, etc., of credit card
   342 (1) Every person who
   (a) steals a credit card,
   (b) forges or falsifies a credit card,
   (c) possesses, uses or traffics in a credit card or a forged or falsified credit card, knowing that it was obtained, made or altered
   (i) by the commission in Canada of an offence, or
   (ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence, or

   (d) uses a credit card knowing that it has been revoked or cancelled, is guilty of
   (e) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
   (f) an offence punishable on summary conviction.

REASONS TO CHOOSE US AS YOUR THEFT LAWYER

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.
2. Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !
3. We are Fast: We will be in your corner from the first call.
4. 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.
5. We Listen: You can reach us by phone/email anytime.
6. Progress Updates: Regular progress updates on your case.
7. You are Never Alone: We communicate with you. You’ll never be in the dark.
8. Peace of Mind: We’ll go to court for you so you don’t have to.
9. 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.
10. Flexible Financial Plans: We’ll work out financial payments that you can manage.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.