TORONTO THEFT, Shoplifting & Robbery 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;
Seeking the assistance of an experienced Toronto criminal lawyer is extremely important when charged with a property offence. In some circumstances it may be possible for your lawyer to negotiate the withdrawal of the charges in exchange for completing a diversion program or community service. In the case of more serious property related offences, such as robbery, the Crown may be seeking significant jail time. If you are charged with a property crime, 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 Robbery and How Does it Differ from Theft?
The offence of robbery is distinct from that of theft. In the case of robbery, a theft or attempted theft, as well as some form of violence or assaultive behaviour, is involved. Section 343 of the Criminal Code outlines four different ways that a robbery may be committed. These include:
- Stealing and using violence or threats of violence in order to extort the property or to overcome resistance;
- Stealing from a person and either immediately before or after taking the property, wounding, striking, beating or otherwise using violence against the person;
- Assaulting any person with intent to steal;
- Stealing from a person while armed with a weapon or an imitation of a weapon.
What are the Penalties for Robbery?
Robbery is an extremely serious charge under the Criminal Code and in most cases the Crown Attorney will vigorously prosecute the case. Robbery carries a maximum punishment of life imprisonment.
The Code also prescribes a number of mandatory minimum sentences. Where a restricted or prohibited firearm is used in the commission of a robbery, a mandatory minimum sentence of 5 years imprisonment applies to a first offence. Second or subsequent offences carry a mandatory minimum of 7 years in jail. These mandatory minimum sentences also apply where any firearm is used in the commission of the robbery, and the robbery was committed for the benefit or, or at the direction of a criminal organization.
Where a robbery takes the form of a home invasion, the Code prescribes that this is an aggravating factor that is to be taken into consideration by the Court on sentencing.
What Are Possible Defences to Theft and Robbery Charges?
In both theft and robbery cases, the defences that might be raised are highly dependant on 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.
In the case of robbery, identification is frequently an issue that is raised at trial. The Crown is required to prove that the accused individual was in fact the person who committed the offence. It may be possible to demonstrate that witness identifications or video surveillance taken at the scene do not establish the identity of the accused beyond a reasonable doubt.
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.
What Does Break & Enter Consist of?
Interestingly, in order to be convicted of a break & enter, more is required than simply entering into a home or business without permission. In addition to “breaking” into or out of a place, the offence also requires the intention to commit an indictable offence.
Section 348 of the Criminal Code outlines three ways that the offence of break & enter may be made out. The section states:
348. (1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein, is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
The Criminal Code does provide a shortcut to the Crown in break & enter cases. The Code provides that evidence that an individual broke and entered a place is, in the absence of evidence to the contrary, proof that he or she entered with the intent to commit an indictable offence.
As a result of this shortcut, once the Crown has made out a prima facie case against the accused, the onus falls to the accused to rebut the presumption by leading evidence of an explanation that may be reasonably true. A reasonable excuse, if believed, will then raise reasonable doubt as to the intention for breaking and entering the premises.
It should be noted that if an indictment particularizes the alleged indictable offence committed while breaking and entering, the presumption does not apply and the Crown must prove all of the elements beyond a reasonable doubt.
What are the Penalties for Break & Enter?
For sentencing purposes, the Criminal Code differentiates between breaking and entering a “dwelling house” (one’s home), and another place (such as a business or commercial property).
For charges related to dwelling houses, the charge can only proceed by way of indictment and the maximum penalty is life in prison.
For charges related to “other places,” the maximum penalty is 10 years in jail if the charge proceeds by way of indictment, and 6 months if the matter proceeds by way of summary conviction.
What If I Didn’t “Break” In?
Section 349 of the Criminal Code creates the offence of being unlawfully in a dwelling house. To be found guilty of this offence, the Crown need only prove that the accused was in a dwelling house without a lawful excuse, and that there was an intention to commit an indictable offence while inside. Unlike the charge of break & enter, the Crown does not have to prove that the accused, “broke” in. This is an important distinction because the Code actually defines the term, “break.” Specifically, the Code states:
(a) to break any part, internal or external, or
(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening.