Theft under $5000 Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged the right to be presumed innocent until proven guilty, so the Crown is the side that has to prove the charge.

The elements come from 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. The taking or conversion must come with a listed intent. 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.

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

Section 334(b) applies when the value of what is stolen is not more than $5,000. The value is therefore part of the charge, because it decides which punishment section applies.

Under section 334(b), theft of $5,000 or less is an indictable offence with a maximum of two years in prison, or it can 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. One is that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. How that principle applies 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, either absolutely or on the conditions of a probation order. 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(b) sets neither. The court may discharge a person only if it considers that to be in the interests of the accused and not contrary to the public interest. Under section 730(3), a person who is discharged is deemed not to have been convicted, with the exceptions that the section lists.

The Criminal Records Act deals with record suspensions. Under section 4(1), a person cannot apply until a set period has passed after the sentence is over, including any imprisonment, probation and payment of any fine. The period is 10 years for an offence prosecuted by indictment and five years for an offence punishable on summary conviction. The section is subject to exceptions, and a lawyer can explain how it applies.

The Immigration and Refugee Protection Act has its own rules about offences. Under section 36(2)(a), a foreign national is inadmissible on grounds of criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment. Section 36(3)(a) says 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. 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 a listed intent. 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.

Value is a second question, because section 334(b) applies only where the value is not more than $5,000.

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 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 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. 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.