Shop Lifting & Theft Charge

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.

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 notwithstanding 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.

334. Except where otherwise provided by law, anyone who commits theft

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or

(b) 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, where the value of what is stolen does not exceed five thousand dollars.

THEFT FROM AN EMPLOYER

Any theft involving a breach of trust is very serious.  The courts view a theft by a person in a position of trust as extremely aggravating.   At Daley, Byers we have defended cashiers, bookkeepers, accountants, sales people and treasurers of charitable organizations who have found themselves facing theft charges resulting from their position.  In some cases we have been retained prior to charges being laid and through negotiations have avoided criminal charges altogether.  In other cases where clients have retained us after being charged we have successfully negotiated the withdrawal of all charges. In many cases it is very difficult for the Crown to prove a theft that has taken place over many months or years.  The necessary records must be available and reveal the unlawful conduct.

There are a number of factors that will influence sentence in these cases;

1. Circumstances of the accused
2. Criminal record of the accused
3. The length of time that the theft has been ongoing
4. The amount that was stolen
5. The nature of the position of trust
6. Was there a trial or a guilty plea – is the accused remorseful?
7. Has restitution been made?

Jail terms have traditionally been the norm for breach of trust theft involving substantial sums of money.  However, where restitution has been made, real jail can sometimes be avoided.  House arrest and/or probation are options.  In addition if there is some type of explanation for the conduct (e.g. gambling or drug addiction) the Courts can be somewhat sympathetic.

The Criminal Code allows for a wide range of penalties upon a finding of guilt or conviction.

1. It was an accident
2. It was a gift, or I thought it was a gift
3. I thought it was abandoned
4. It wasn’t me – I did not do it (this defence often arises in corporations when the accused does not have the sole ability to take the funds and the funds cannot be traced to the accused)

There must be intent to deprive temporarily or absolutely. The Crown must also prove a loss of property.

We recently defended an accused person who was seen to load 10 boxes into a car from a distance.  However, the Crown could not prove that there was anything in the boxes and therefore they could not prove that anything was stolen (except perhaps empty boxes).  The charges were dismissed.