What Are Theft / Shoplifting Charges?
Theft charges are essentially the stealing of property, money, or other things of value from another person or their agent as a means to deprive them of the item, while converting it for your own personal enjoyment or benefit. The official definition of Theft, as stated in Section 322 of the Criminal Code of Canada, is as follows:
- Everyone commits theft, when they fraudulently, without colour of right, takes or converts to their own use or another person’s use, anything, whether it is inanimate or animate, with the intent to:
- Absolutely or temporarily deprive the owner, or their agent, of their property or interest in the property;
- Uses the property as a security or deposit;
- Parts with the property, under the condition, with respect to its return, which the person, who is parting with the property may be not able to perform;
- Deals with the property in such a manner that the property is not able to be restored to its prior condition at the time it was taken or converted.
- Theft is committed when a person moves, causes movement, or begins to move property, with the intent of stealing it.
In other words, if you take property that does not belong to you, you can be charged with theft. The Criminal Code of Canada recognizes specific monetary values of theft offences. It uses this value to determine the appropriate classification of the offence and appropriate punishments if convicted.
Similar to fraud offences, there are two main types of theft charges:
- Theft Under $5,000
- Theft Over $5,000.
The law does not have a specific offence under the Criminal Code of Canada for shoplifting, so a person will be charged for Theft Under or Over $5,000, depending on the value of the property stolen.
What are Stolen Vehicle Offences?
The primary stolen vehicle offences are:
- Motor vehicle theft
- Taking a motor vehicle without consent
- Possession of a stolen motor vehicle
- Trafficking in stolen vehicles
Motor Vehicle Theft and Taking a Motor Vehicle without Consent
While at first glance, the two charges of motor vehicle theft and taking a motor vehicle without consent may seem the same, there is one distinct difference.
It is considered theft of a motor vehicle if you take a motor vehicle with the intention of keeping it permanently; taking a motor vehicle without consent involves taking a vehicle temporarily, most commonly also called “joyriding.” It is important to note that you can get charged with this offence even if you are only a passenger.
Investigation of Theft Charges in Toronto
Typically, a theft allegation in Toronto is initiated by a complaint from a witness to the alleged theft. This witness can be the alleged victim reporting their personal property having been taken without their consent or a third party claiming to have witnessed the theft. In either case, the police will attend the scene to take a written statement from the alleged victim and potentially other witnesses to start the investigation. In most cases, theft investigations are resolved quickly, especially when shoplifting is involved, as often the police are called by a security or loss prevention officer who has put the alleged thief in custody already. If the alleged perpetrator is not present at the scene, the police will access security footage or other records to determine who committed the offence.
After all evidence has been gathered, the police will either arrest you if they believe you are the perpetrator or work on tracking you down or issue a warrant for your arrest. After the police have charged you with the offence, they will provide a disclosure package containing all collected evidence to the Crown prosecutor. You have the right to request access to this package to see the evidence against you. A criminal defence lawyer will assist you in obtaining the package and review it to examine the strengths and weaknesses of the Crown’s case against you and all legal defences that may be available to you.
Possession of a Stolen Vehicle
Whether you were the one who stole the vehicle, the possession of a stolen vehicle is a criminal offence, and amendments to the Criminal Code of Canada have made it easier to convict you of this offence. If the vehicle identification number (VIN) has been partially or entirely removed, it will be presumed that you know it is a stolen vehicle. You can only refute this presumption by providing evidence that you were unaware the vehicle was stolen.
Trafficking in Stolen Vehicles
The selling, transporting, importing or exporting of stolen vehicles all fall under the umbrella term of trafficking. It is a severe criminal offence and can carry long-term prison sentences.
If the trafficking is done in association with a criminal organization, you are likely to face more severe and additional charges, such as charges for trafficking and committing an offence for a criminal organization. If you are convicted, you could face a maximum of 14 years.
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Penalties for Theft Charges in Toronto
The range of potential penalties, if convicted, is just as wide as the array of acts that fall under the offence of theft. Depending on the severity of the case and the weight of the evidence brought against you, your sentence may range from a discharge to jail time.
The Criminal Code of Canada outlines the maximum allowable punishment for theft as follows:
For theft in an amount over $5,000:
- No more than 10 years imprisonment;
For theft in an amount equal to or less than $5,000:
- No more than 2 years imprisonment if the Crown proceeds by indictment or
- No more than 2 years less a day imprisonment if the Crown proceeds by summary conviction.
Various factors will be considered upon sentencing, such as the amount taken, the relationship between you and the alleged victim, your criminal history, and other applicable personal factors.
The two most significant factors for potential imprisonment are:
- The theft was over $5,000 and/or
- The theft occurred in the course of employment or another trust-based relationship.
In either of these two cases, the Crown will very likely seek a jail sentence.
Like many other criminal offences, a conviction for theft can have wider-reaching consequences than court-imposed penalties. It may impede your chances of securing employment in certain fields, especially in roles that require handling money or valuable items. As a criminal conviction will remain on your record for life, it could also pose problems for immigration and travel.
If you have been charged with this type of offence, it is crucial to consult with an experienced criminal defence lawyer to determine what defences you have available and to ensure the best possible outcome.
What are the Potential Penalties for a Conviction for a Stolen Vehicle Offence?
Theft of a motor vehicle is a hybrid offence. This means that it is at the prosecutor’s discretion if they want to treat it as a summary (less severe) or indictable (more serious) offence. The difference is significant as the maximum sentence for a summary conviction is 18 months in jail, while if it is being tried as an indictable offence, you could face up to 10 years. Any second or subsequent conviction of motor vehicle theft carries a mandatory minimum jail sentence of 6 months. Taking a motor vehicle without consent is a summary offence with a maximum penalty of 6 months in prison, a fine of $5,000, or both.
The potential sentence for the possession of a stolen motor vehicle depends on the value of the vehicle. If the value is below $5,000, the maximum penalty is 2 years imprisonment; if the value is higher, you could face up to 10 years in jail.Trafficking a stolen motor vehicle carries 5 years in prison if the value is under $5,000 or 14 years if the value is above that.
Defending Theft Charges in Toronto
What are the Best Defences to Theft Charges in Toronto?
The facts and severity of your case will influence which defences may be available to you.
Generally, the best defences for a theft charge are:
Factual Innocence
Factual innocence is the most robust possible defence because facts and evidence support that you were not there or did not have knowledge of the theft and did not cause the theft or other essential elements of the offence.
This could include:
- No mental intent: One of the most common defences in a theft case is that you did not intend to take the property, for example, if you accidentally walked out of a store with an item you did not pay for.
- You owned the property: You cannot steal what is yours. Being able to establish the ownership of the stolen item, whether through a proprietary or possessory interest, you may be able to defend yourself against the charges. Ideally, you have documents proving your ownership. There are some exceptions to this rule, though. You could still face a theft charge if you take your property from another person by fraudulent means. For example, if your car has been impounded, you cannot steal it without paying the fee despite your proprietary interest.
- Identity: If there is no surveillance footage or the footage is of poor quality, you may be able to raise an identity defence. You may, for example, have been mistakenly identified as the perpetrator due to the poor quality of the footage. To effectively raise this defence, it would help to have corroborative evidence, such as an alibi establishing that you were elsewhere at the time of the offence.
Violation of Constitutional Rights
The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to follow these rights, it could aid your defence.
Colour of Right
The colour of right defence can be raised if you honestly believed that you had a lawful right to the property, even if, in reality, you did not. For example, you may have taken a friend’s car with the honest belief that they were lending it to you, but you were mistaken. You must establish a factual basis to show that you honestly and reasonably believed this.
The responsibility lies on the Crown to prove beyond a reasonable doubt that you did not only take property that was not lawfully yours but that you actually intended to take that property. Despite the Crown bearing the burden of proof, some responsibility may still lie on you for certain defences.
A criminal defence lawyer with experience in theft cases can help you review the facts of your case and determine an efficient defence. They have the expertise to present any and all available defences to the Court at trial. Even if you are sure you will be found guilty, obtaining legal representation is critical as a skilled criminal defence lawyer may be able to reduce your penalties even if you are convicted.
How Can I Help Defend Theft Charges in Toronto?
There are a few things that you can do to help your lawyer build a solid strategy to defend theft charges in Toronto:
- Provide your lawyer with a detailed statement about what happened.
- Collect and maintain all documents and records about the event.
- If applicable, gather a list of witnesses supporting your version of events.
- Log all relevant texts, emails, phone calls or photographic evidence.
You should start to gather any information that may be useful to your lawyer as soon as you are released on bail to ensure that memories are still fresh and evidence easy to gather. If you are unsure which information may be relevant to your case, contact Farjoud Law immediately so we can guide you.
Generally, the following documents can be helpful to your lawyer in building an efficient defence:
- Proof of employment
- Reference letters
- Record of prescriptions
- Record of any potential mental health conditions
If applicable, enrolling in counselling (substance abuse, anger management, etc.) can also be seen in your favour by the prosecution or judge).
What Can a Lawyer Do to Help Me Defend Against Theft Charges in Toronto?
We will begin by examining the police actions and evidence levied against you to determine any potential weaknesses and identify possible defence strategies to aid your cause.
Our activities include:
- Assembling any documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Uncovering administrative/systemic errors; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.
Conclusion
Farjoud Law has an outstanding track record defending clients charged with all types of criminal offences. We are dedicated to professionalism, client services and passionate advocacy.
If you or a loved one have been charged with a criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours/day – 7 days/week or fill out our convenient online form.
FAQs
Yes. Section 322(2) clearly states even moving property, with the intent to steal it, is sufficient to be charged with a theft offence. While most stores’ security waits until the person leaves before apprehending them, you could still be charged even if you were still in the store.
It depends upon the circumstances surrounding the theft and whether you had prior knowledge of their intent to steal. You could still be charged if you are with them when they are caught.
No. You have the legal right to remain silent and not provide store security with any personal information or discuss the circumstances regarding the theft or shoplifting of property. Actually, it is in your best interests to remain silent, no matter what the security guard tells you.
Sometimes, store security guards will use intimidation tactics or promise not to press charges if you talk. Do not be fooled by this, as their objective is, at a minimum, to get your personal information. Once they have it, they turn it over to the police or store owner, who typically will send you a “civil recovery letter.”
This letter is the store’s attempt to intimidate you into paying a fee of several hundred dollars directly to the store. Consult with a lawyer before paying these demand letters. Even after paying fee, the Crown can still proceed to prosecute you for a theft offence.
The decision to lay a charge is at the discretion of the police officer. It depends upon the property’s value and whether you have any prior offences as to whether the police will take you immediately into custody and arrest you. Quite often, most people caught shoplifting have no prior record. In these cases, the police will issue what is known as a “Form 9 Notice to Appear.”
This document will state your charges, the location where you are to appear at the police station for fingerprinting, as well as the date, time and location of your court appearance.
It is not uncommon for the police to charge you with both a theft offence and a “Possession of Property Obtained by a Crime” offence, defined under Section 354 of the Criminal Code of Canada if you are caught shoplifting.
Possibly. For instance, you ask your neighbour to borrow their lawn mower to mow your yard. Eventually, you decide you will not return it but keep it. Even though your neighbour originally agreed to let you use their property, because you failed to return it and had the intention to keep it, you can be charged with theft.
If you get rid of the property you stole, you can still be charged with theft. Regardless of whether you tossed it in the trash, gave it away, or sold it for money, you committed a criminal offence the moment you intentionally took the property from its owner.
An “Owners Agent” is a person the property owner has entrusted with the care of their property on their behalf. Even though they do not directly have a claim to the property, in the event of theft, they do have the right to call the police and make a complaint that the property was stolen.
In many cases, police will release you at the scene on a release order outlining your charges and the appearances you have to make. It may also contain conditions you have to follow while on release, such as staying away from the location of the theft.
Especially if you have a criminal record or the theft allegations are more serious, you may have to attend a formal bail hearing to secure your release. For this, you will be taken into custody, and the bail hearing must be held within 24 hours from the moment of your arrest or detention.
Your lawyer is the only person who can contact you while in custody, so retaining the services of an experienced criminal defence lawyer is critical. They will contact the prosecutor assigned to the bail hearing to begin negotiating your release. They will also get a copy of the police information package, including all allegations and evidence brought against you. This will allow your lawyer to prepare a good representation at the bail hearing.
At the bail hearing, the judge will consider the following factors to determine if you should be released until your trial:
- Will you attend your trial hearing?
- Are you posing a risk to the public by re-offending?
- Is the confidence in the administration of justice at risk?
We will advocate for your release without the least restrictive bail conditions.
Bail conditions after a theft charge may include refraining from:
- Returning to the place where the alleged theft occurred at
- Interacting with the alleged victim
- Breaking any laws
- And many more
Some of these conditions can severely impact your day-to-day life. The most efficient method of varying your bail conditions will require the consent of the Crown Attorney. Your lawyer will present the facts to the Crown Attorney in an effort to vary the conditions. It is critical that you abide by your conditions until the condition is changed, as breaching the terms of your release may result in a revocation of your bail, loss of any bond and even further charges against you.
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