Property Offences Lawyer Toronto

In my years of practice as a criminal lawyer in Toronto, there are property charges that come up time and time again and these are:
theft under $5000: This is the most common of the property charges and usually takes the form of a shoplifting allegation (although it may be any property alleged to have been taken to a value of $5000 or less).
fraud under/over $5000: This category covers a wide variety of property crimes - including credit card/cheque fraud and more sophisticated schemes to deprive a person or organization of goods or service by fraudulent means. Again, the $5000 threshold figures prominently for penalty purposes.
mischief under/over $5000: This is most often a case of property alleged to have been wilfully damaged or tampered with. Common charges include vandalism, graffiti or damaging a motor vehicle. The $5000 threshold sets out the value distinction for penalty.
possession of property obtained by crime: This is a charge laid if and when there is evidence that property found in the possession of a person was stole or obtained under false pretences, and that the person ought to have known that.
break and enter: This is a more serious charge and involves allegations of entering a premise (home, business, etc.) without authority for the purpose of committing an indictable offence therein (theft is a typical property offence here). Break and enter into a dwelling house (residence) is considered to be the most serious form of this charge.
autotheft: Given current crime realities in Toronto, theft of a motor vehicle is unfortunately another often-defended charge.

You are extremely vulnerable at this point, and your future hangs in the balance of what you do next. Here is my advice:
Right to silence: Do not say anything - admission, apology, justification or explanation - to store security or the police. Anything you say may be used as evidence against you at trial. Instead say clearly that you wish to claim your right to silence.
Right to counsel: Make it known to police when first asked if you wish to consult counsel. Hold firm and do not answer any questions or make any statements until you have spoken to a lawyer. The police must allow you access to counsel as soon as is feasible.
Do not agree to sign anything: You may be asked by store security to sign a document admitting to the theft or promising not to return (ban), or by police to provide a written statement. Do NOT sign anything or provide any written statement until you have passed it by your lawyer.
Be polite and respectful: Don't make a bad situation worse for yourself by causing trouble or behaving badly. If you are required by police by law to provide identification, do so, but be polite and stick to what you have said about your rights to silence and counsel.
Call a criminal defence lawyer at the earliest possible opportunity: Time is of the essence, so make every effort to ensure you or someone on your behalf contacts a lawyer with experience in theft defence as soon as you can. The sooner your lawyer is involved in the process, the sooner your rights can be protected, the facts and circumstances can be determined and a defence strategy can be set.

A finding of guilt on a property crime (even shoplifting) may result in very serious collateral consequences that will follow your case regardless of your sentence or penalty:
Employment: A large number of employers now require criminal record checks to be arranged by a job candidate, especially when the job entails putting trust in the employee (i.e., finances, vulnerable persons - or what is called a "vulnerable sector check", government positions with security clearance, etc.). A finding of guilt on a property charge may be a deal breaker for a career/job or a bar to licensing required in a profession/occupation such as realtor or insurance agent or accountant. Loss o'trust and insurance/bonding issues may similarly present employment obstacles.
Travel: Having a conviction appear on your criminal record will make you inadmissible to other countries. In particular, the U.S.A. will not allow entry to individuals with criminal records for crimes it considers to be offences of "moral turpitude" (this is often interpreted to include property crimes such as theft and fraud). In some circumstances, even if you are discharged following a finding of guilt (conditional discharge), the border authorities are within their power to bar you. This may have a negative effect on your ability to work, as well as your travel and lifestyle.
On all property crime charges, it is crucial to fight for a result/record that does not carry a criminal record with it - the long-term impacts are life-changing.

The best defence in your case will depend on the facts, but the following are some of the main defence options:

For Fraud:

• No Intent (Mens Rea):
  The charge of fraud requires that the Crown prove you intentionally committed the deceit and deprivation necessary in law.
  If your actions were the result of mistake, error, or misrepresentation, and you had no intent to defraud, this will present a complete defence to the charge.

• No Deprivation or Risk of Deprivation:
  The Crown must prove that the alleged victim was actually deprived of property or money, or put at risk of deprivation by your actions.

• Authorization/Consent:
  If you acted with implicit or explicit authority or consent of the involved party, this may present a defence to the charge.

• Identity:
  The Crown must prove that the person accused committed the fraudulent act alleged to have occurred.

For Mischief:

• No Intent:
  Like fraud, the charge of mischief requires an element of intent.
  Where the damage to or interference with property was caused by accident, the act was not intentional.

• Colour of Right:
  Where the act was committed under a genuine belief as to a legal right to act with the property (i.e., it is your own, etc.), this may present a full defence to the charge.

• Consent:
  Where the act was committed with the consent of the owner of the property in question.

• Identity:
  Where the Crown must prove the person committing the alleged act has been proven to be you.

General Defences (May Apply to Both):

• Insufficient Evidence:
  Where there is a failure on the Crown's part to prove each and all of the elements of the offence, or where intent cannot be proven.

• Charter Violations:
  Where the defence can establish a breach of your "Charter rights" (Charter of Rights and Freedoms) during or following the investigation or arrest (i.e., unlawful search and seizure, denial of counsel, etc.), the court may order the evidence that flowed from the violation to be excluded from the case, fatally weakening or defeating the Crown's case.

An experienced defence lawyer will know how to review the evidence and facts to spot potential and best defences in your case.

5. Can LD Law help negotiate alternative outcomes like restitution or diversion programs for property offences?

Achieving other outcomes to a criminal record is an integral part of defending a property crime and applies most often in first offence and low-level allegations.

Diversion / Direct Accountability:

• In the majority of first-time and lesser property offences (i.e., first-offence shoplifting or mischief), your defence lawyer will be able to negotiate with the Crown Attorney a withdrawal of the charges following successful completion of one or more conditions agreed to by the client (diversion or direct accountability).

• These conditions may include:

• A charitable donation,

• Written apology letter,

• Community service work,

• Requirement to attend counselling.

• Upon completion, the charge(s) are withdrawn and there is no record entered.

Restitution:

• Where there is an actual loss suffered by the victim (theft, fraud, damage), the resolution of the case will often involve a requirement to pay back restitution (make up for losses, damages, or expenses incurred by the victim as a result of the property crime).

• While restitution does not provide a defence, the Crown will often include a restitution term in a plea negotiation resulting in:

• A lighter sentence (e.g., jail time avoided), or

• In rare but appropriate cases, the negotiation of a discharge or another result not amounting to a conviction being entered.

It is our job to determine your eligibility for one of these avenues, to gather the required evidence accordingly, and to make every effort to convince the Crown to run your case in this manner if/where possible.

• Possession: That you exercised some measure of control over the property and knew that you had it. Possession doesn't just mean having it on your person; it can be constructive (e.g., stored in your locker or car) or joint (shared control with others).

• Property Obtained by Crime: That the property in question was, in fact, obtained through the commission of an indictable offence in Canada (most commonly theft or fraud).

• Knowledge or Wilful Blindness/Recklessness: This is often the key element. The Crown must prove that you knew the property was obtained by crime. Alternatively, they can prove guilt if they show you were "wilfully blind" (deliberately shutting your eyes to the obvious fact that it was stolen) or "reckless" (aware of the risk that it was stolen but proceeded anyway). Simply buying something cheap isn't automatically proof, but circumstances suggesting you should have known (like buying a new high-end item for a fraction of its price from someone unofficial) can be used to infer knowledge or wilful blindness.

• These are hybrid offences:

• Maximum summary conviction penalty: $5000 fine and/or 2 years less a day in jail.

• Maximum indictable penalty: 2 years in prison.

• Most of the time, for a first offence/low value property charge, outcomes may include:

• A discharge (finding of guilt but no criminal record is entered),

• A fine,

• Probation.

• Often these results may be arranged through plea negotiation or use of a diversion program.

• Indictable offence only.

• Maximum penalty: 10 years in prison.

• Indictable offence only.

• Maximum penalty: 14 years in prison.

• Mandatory minimum:

• If the amount exceeds $1 million, there is a minimum 2-year jail sentence that must be imposed.

• A finding of breach of trust (e.g., internal theft, offence committed by employee) will typically result in longer sentences.

• Indictable offence only.

• Maximum penalty: 10 years in prison.

• Indictable offence only.

• Maximum penalty: Life imprisonment.

• Sentences are often lengthy in serious cases, cases involving violence, or where the dwelling house is occupied by its occupants at the time.

• Penalty depends on offence classification:

• Mischief Over $5000: Maximum penalty of 10 years imprisonment.

• Mischief Under $5000: Subject to the same penalties as theft/fraud under $5000.

• Probation:

• Reporting requirements,

• Counselling,

• Conditions for non-attendance/communication.

• Restitution:

• Payback of monies to victim.

• Forfeiture:

• Loss of property relating to proceeds of the offence.