Theft over $5000 Lawyers in Canada

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

The charge begins with the definition in section 322(1). 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, with one of the intents the section lists. The first listed intent is to deprive, temporarily or absolutely, the owner of the thing, or a person with a special property or interest in it, of the thing or of that property or interest.

Section 322(3) adds that a taking or conversion may be fraudulent even though it is done without secrecy and without any attempt at concealment.

Section 334 then ties the punishment to value. The higher group applies when the value of what is stolen is more than $5,000, or when the property stolen is a testamentary instrument. The lower group applies when the value is not more than $5,000. For that reason, value is part of any charge laid under section 334(a).

Theft over $5,000 is an indictable offence with a maximum of 10 years in prison under section 334(a). The same paragraph allows it to be prosecuted as an offence punishable on summary conviction. The section sets no minimum term. 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.

In deciding a sentence, a court takes into account the principles in section 718.2. The section says that a sentence should be increased or reduced to account for relevant aggravating or mitigating circumstances. One circumstance it deems aggravating is evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. The same section says that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. How these principles apply is for the court.

A court can also order restitution. Under section 738(1)(a), where property was lost, damaged 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(a) sets neither. Whether a discharge is appropriate is for the court.

The Immigration and Refugee Protection Act sets rules that look at the maximum term of an offence. Under section 36(1)(a), a permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Section 36(3)(a) says that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily. Theft over $5,000 has a maximum of 10 years on indictment. A permanent resident or foreign national who is charged can ask a lawyer who practises immigration law how these rules apply.

The definition in section 322 gives the main questions. The taking or conversion must be fraudulent and without colour of right, and it must come with one of the listed intents. The section 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.

Value is a second question. Section 334 draws the line at $5,000, so a charge under section 334(a) raises the question whether the evidence of value fits the higher group.

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. 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 gives a provincial court judge absolute jurisdiction over theft where the alleged value does not exceed $5,000. That rule does not reach theft over $5,000. For an indictable offence of this kind, section 536 says the justice puts the accused to an election. The words the justice reads set out three options: trial by a provincial court judge without a jury, trial by a judge without a jury, or trial by a court composed of a judge and jury. They also say that an accused who does not elect is deemed to have elected a court composed of a judge and jury. A lawyer can explain how the election works for a given charge.

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 release decisions give primary consideration to release at the earliest reasonable opportunity.

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.

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.