Theft Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, and that right is in section 11(d) of the Canadian Charter of Rights and Freedoms. So the Crown is the side that has to prove the charge.

Section 322(1) says a person commits theft who fraudulently and without colour of right takes a thing, or fraudulently and without colour of right converts it to their use or to the use of another person. The section applies to anything, whether animate or inanimate. It is not limited to goods in a store.

The taking or conversion must come with one of four intents named in the section. The first is the intent to deprive, temporarily or absolutely, the owner of the thing, or a person who has a special property or interest in it, of the thing or of that property or interest. The others are the intent to pledge the thing or deposit it as security, to part with it under a condition about its return that the person may be unable to perform, or to deal with it in a way that means it cannot be restored in the condition it was in when it was taken or converted.

Two more subsections matter. Under section 322(2), a person commits theft when, with intent to steal anything, they move it or cause it to move or to be moved, or begin to cause it to become movable. Under section 322(3), a taking or conversion may be fraudulent even though it is done without secrecy and without any attempt at concealment.

Because the punishment in section 334 depends on value, the value of what was stolen can matter to the charge as well.

Section 334 sets two groups. If the property stolen is a testamentary instrument, or the value of what is stolen is more than $5,000, theft is an indictable offence with a maximum of 10 years in prison, or it can be prosecuted as an offence punishable on summary conviction. If the value is not more than $5,000, theft is an indictable offence with a maximum of two years, or it can be prosecuted as an offence punishable on summary conviction.

Section 334 sets no minimum term in either group. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case. Where the offence is prosecuted on summary conviction, section 787(1) sets the general penalty, unless another penalty is set: a fine of up to $5,000, imprisonment of up to two years less a day, or both.

A court that imposes a sentence takes into account the principles in section 718.2. One of them is that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Whether that applies to a given case is for the court.

A court can also order restitution. Under section 738(1)(a), where property of any person was damaged, lost or destroyed because of the offence, the court may order the offender to pay an amount not exceeding the replacement value of the property, less the value of any part that is returned.

Section 730 allows a court, in some cases, to discharge a person instead of convicting them. It does not apply to an offence with a minimum punishment, or to one punishable by imprisonment for fourteen years or for life. Section 334 sets neither. Under section 730(3), a person who is discharged is deemed not to have been convicted, with the exceptions that the section lists. Whether a discharge is appropriate is for the court, which considers whether it is in the interests of the accused and not contrary to the public interest.

The definition itself raises the main questions. The taking or conversion must be fraudulent, and it must be without colour of right. Section 322 does not spell out what colour of right means. A lawyer can explain how courts have treated the phrase and whether it arises on the facts of a case.

The intent is also part of the definition. A person who is charged can ask whether the evidence shows one of the intents listed in section 322(1). Value is another question, because it decides which group in section 334 applies.

Charter rights apply from the start. On arrest or detention, section 10 gives everyone the right to be told the reasons promptly, the right to retain and instruct counsel without delay and the right to be told of that right. Section 8 protects against unreasonable search or seizure, and section 9 protects against arbitrary detention or imprisonment. Under section 24(2), evidence obtained in a way that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute. Whether any of this applies to a given case is a question for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

Section 553 deals with theft of $5,000 or less. It says that the jurisdiction of a provincial court judge to try an accused charged with theft is absolute and does not depend on the consent of the accused, where the alleged value does not exceed $5,000 and the subject of the offence is not a testamentary instrument.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says that the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, and so does an appeal against sentence. After a conviction on summary conviction proceedings, an appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county where the case was decided.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.