Theft & Shoplifting
Shoplifting, Theft Under $5,000, and Theft Over $5,000 Lawyer
The Criminal Code of Canada creates a number of property related offences. Some of the more common property offences include:
• Break & Enter:
• Possession of property obtained by crime (possession of stolen goods);
• Possession of proceeds of crime;
Brian Weingarten has successfully defended many theft and shoplifting charges for clients. In some circumstances it may be possible to negotiate the withdrawal of the charges in exchange for completing a diversion program or community service. In the case of more serious theft related offences, the Crown may be seeking significant jail time. If you are charged with theft or shoplifting, contact Brian Weingarten Defence Law today to discuss your case.
What is Theft and How Does it Differ from Shoplifting?
Section 322 of the Criminal Code creates the offence of theft. Generally, a theft occurs when one fraudulently and without a colour of right takes property and intends to deprive the rightful owner of the property of their interest in the property. The Criminal Code also makes it clear that a theft is complete when the necessary intention to steal is formulated and the property is moved, or begins to become moveable.
In order for the Crown to make out the offence of theft, it must be proven that there was an intention to actually take or steal property. Accidentally taking a piece of property that one believed to belong to them, or genuinely believed to have an interest in would not amount to theft.
Shoplifting is a type of theft that generally occurs in a retail environment. In the case of first time offenders, or in shoplifting cases where the value property stolen is relatively minor, it may be possible to resolve the charge by entering into a diversion program. In Toronto, diversion may consist of community service, letters of apology, or charitable donations. Toronto courthouses have workers who will interview an accused who has been approved for diversion. The worker will then create a diversion a program for the accused. Upon the successful completion of the program, the Crown will withdraw the charges.
If a theft or shoplifting charge arises in the context of an employee-employer relationship, courts and Crowns are less likely to recommend that the charges be dealt with by way of diversion. Often Crowns will treat thefts from employers as very serious breaches of trust.
What are the Punishments for Theft and Shoplifting?
The punishment for the offence of theft depends on the value of the property at issue. Theft may be classified as either: 1) Theft Under $5,000, or 2) Theft Over $5,000.
In a case of theft over $5,000, the maximum punishment is 10 years in jail. In cases of theft under $5,000, the maximum penalty is 2 years in jail where the matter proceeds by indictment, and 6 months in jail where the matter proceeds by way of summary conviction.
What is Diversion, and Do I Require a Lawyer if the Crown’s Offers Diversion?
It is always your choice whether or not to retain a lawyer. In some shoplifting and theft cases, the Crown Attorney may screen the matter for diversion prior to the first court appearance. This means that the Crown is willing to withdraw the charge(s) if the accused successfully completes all of the requirements of a diversion program. As mentioned above, diversion might consist of community service, letters of apology, or charitable donations. In some cases, you may be able to decide for yourself whether to simply accept the Crown’s offer of diversion and proceed without the assistance of a lawyer.
It is important to note that diversion is typically contingent on the accused accepting responsibility for their actions. If the accused denies that they committed a theft, or another offence, they may not be eligible to resolve their case by way of diversion.
In some cases there may be evidence of breaches of your charter rights, problems with identification, lost evidence or video surveillance, or other problems with the Crown’s case. In these cases, you may not be inclined to accept an offer of diversion. These are the situations where it is useful to retain a lawyer, in order to fully review all of your legal options.
In determining whether a case is eligible for diversion, the Crown will look at factors such as:
• The criminal record of the accused, and whether there are similar prior convictions;
• The value of the items stolen;
• Whether the items were recovered;
• The degree of planning or participation of the accused in the theft;
• Other mitigating and aggravating circumstances.
What Are Possible Defences to Theft and Shoplifting Charges?
In both theft and shoplifting cases, the available defences depend upon the facts of the particular case. In cases of theft, it might be possible to argue that there was no intention to steal the property in question. In shoplifting cases, it may be the case that the accused legitimately forgot that they had an item in their bag or cart when leaving the store.
Breaches of an accused’s Charter rights during an investigation, arrest, or as a result of significant delay in bringing the matter to trial, might also result in the withdrawal of the charges or a stay of proceedings.