Shoplifting and other forms of Theft are some of the most common and minor charges that come before the courts. Unfortunately, being found guilty of a minor property related crime such as shoplifting can have a profound impact on a person’s future employment opportunities and travel plans. In many circumstances, we have found that people have exercised poor judgement, acted impulsively or have suffered from an illness that resulted in them committing the act. Here at Passi & Patel, our Brampton criminal lawyers are more than willing to assist you through this difficult time and help set your mind at ease. We will go above and beyond to ensure that your criminal record and your reputation is protected.
Theft & Shoplifting Lawyer in Brampton
Assuming the Theft is relatively minor in nature, many Ontario cities including Toronto, Brampton, Newmarket and Oshawa, people charged with Theft for the first time may be eligible to have the charge diverted from the court system resulting in a withdrawal of their criminal charges. Each jurisdiction has a different program and eligibility requirements. Once you are accepted into the diversion program, you may be asked to do a number of different tasks (depending on the region that you are charged in). These tasks range from watching a video on shoplifting, making a charitable donation or completing community service hours. Once the diversion program has been completed, the Crown Attorney will recommend to the court that the criminal charge of Theft be withdrawn against the accused person.
Criminal Code Definition of Theft
Section 322 of the Criminal Code of Canada defines Theft as:
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
(a) 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;
(b) to pledge it or deposit it as security;
(c) 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
(d) 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.
To be found guilty of Theft, the Crown must prove both the actus reus (physical element) and the mens rea (mental element) of the offence. The actus reus involves taking or converting anything fraudulently and without colour of right. In R. v. Saucier, [2017] O.J. No. 7076, the Court endorsed the following meaning of the term “converts”:
To convert something means to (wrongfully) deal with it in a way that is inconsistent with the rights of the true owner of that thing. Even if one person is lawfully in possession of another person’s property, to do something with that property contrary to the terms on which the person got (had) it in the first place would be to convert that person’s property to the use of the person who converted it (or, to the use of somebody else). For example, A borrows a car with the owner B’s permission. A then sells the car to C. As has converted B’s care to the use of C.
To act without “colour of right” means to act without an honest belief in some sort of possessory or proprietary right over the thing being taken or converted (R. v. DeMarco [1973] OJ No 533). For example, if X takes Y’s umbrella, but honestly believes it to be their own, X does not take the umbrella without colour of right.
In R. v. Gibson, [2020] O.J. No. 3703, the accused was alleged to have committed Theft in respect of some batteries at a store. The Court found that by hiding the batteries while walking through the store with them, he had committed the actus reus of Theft. However, it was not proven that he had actually left the store with those batteries. This raised a reasonable doubt that the accused harboured the intention to steal them; it was reasonably possible that he was thinking about stealing them, couldn’t decide what to do, then later decided not to and left the batteries behind. On that basis, the accused was found not guilty of Theft.
On the other hand, in R. v. Fontana, [2016] O.J. No. 5863, the accused was granted a loan on the basis that it would be used to set up a restaurant. However, she used the funds for personal purposes, including gambling. The Court recognized that when the accused first took out the loan, she may have had a genuine intention to use it for setting up a restaurant—thus initially having no fraudulent intent. However, the Court held that once those intentions changed, the accused no longer had colour of right in the money and found her guilty of Theft by Conversion.
Why you should hire Passi & Patel – Criminal Lawyers?
The punishment for Theft varies greatly. If the value exceeds $5,000.00, the maximum punishment is a term of imprisonment not more than 10 years. If the value is under $5,000.00, the maximum punishment is a term of imprisonment not more than 2 years. Both “Theft Over $5,000” and “Theft Under $5000” are hybrid offences, meaning the Crown may elect to proceed summarily (less severe punishment), or by indictment (more severe punishment).
At Passi & Patel – our Brampton criminal lawyers have extensive experience in defending Theft, fraud, and other related property crime offences. Contact our office today at (905) 459-0004 and let our Brampton criminal lawyers get to work you. We will do everything in our power to ensure that we get you the best result possible.
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