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Toronto Shoplifting and Theft Under $5000 Charges Lawyer

Resisting Arrest, Assault, and Assault Police Officer, charges after being caught shoplifting.

Resisting arrest charges under Section 270 make shoplifting charges far more serious and may result in a criminal record or jail.

Sometimes a fight or scuffle breaks out between an accused shoplifter and store security resulting in charges of Resisting Arrest under Section 270(1)(b) in addition to theft under $5000 and possession of stolen property. These charges may be written on an Appearance Notice (Form 9) or Undertaking (Form 10) as “resist arrest”, “assault police officer”, “assault peace officer” or something similar.

The addition of these charges make the offence far more serious, particularly in cases where the security guards state they were cut, bruised, hurt, or otherwise injured by the incident. Crown Prosecutors often seek criminal records in these circumstances, including fines, a suspended sentence, a conditional sentence (house arrest) or even jail.

Undercover (plain clothes) security guards lead to Resisting Arrest Charges (S. 270(1)(b) – person carrying out a lawful arrest)

Store security often catch shoplifters while working undercover. They dress in street clothes designed to make them look like just another shopper in the store while they watch suspicious customers. When they confront someone for shoplifting and try to arrest them in street clothes, it is shocking and many accused react with force.

Normally this confrontation occurs just outside of the opening to the store (sometimes in a mall entrance). Other times, it can happen in the parking lot including while the accused is near or inside their vehicle.

Being approached by a stranger who is not wearing a uniform, and often at night, is a surprising event that not everyone reacts the same way to. Most people don’t understand these individuals have the right to physically arrest them. They also may not immediately realize the identity of the security guard. Some will try to escape or ignore their demands, which can lead to charges of resisting arrest.

Agents of a store (security guards or private investigators) have a legal right to arrest someone they witness shoplifting (either directly or via CCTV). For this reason, Section 270 of the Criminal Code has provisions to include both police/peace officers (s. 270(a)) and other “persons” carrying out a lawful arrest (s. 270(b)).

Normally "Resist Arrest" charges are included by the police if store security state they suffered an injury, marking/bruise or experienced pain in making the arrest

If you are charged with resisting as a result of a shoplifting incident, the security guard/private investigator likely stated to the police that they were pushed, shoved, punched, hit (sometimes hit with a car), or otherwise assaulted when they tried to arrest you. The threshold appears to be that if the store employees were put in any pain, the resist/assault based charges are included.

Ontario Crown Attorneys often look for a criminal record (suspended sentence) in these circumstances. If there are any injuries, bruises, or marks reported (even minor), it is not unusual for the prosecution to seek house arrest (conditional sentence) or jail for first time offenders.

“But I had no idea the person was a security guard or had a right to arrest me?”

It is a defence to have an honest and reasonable belief that you were being assaulted and were simply defending yourself and acted reasonably in the circumstances. Successfully executing this defence at trial though may be challenging. The security guard normally will testify that he identified himself as loss prevention. Further, you are also dealing with a theft/shoplifting charge for which there is likely CCTV and eyewitness testimony evidence.

In shoplifting cases, even if you win a not guilty verdict on the Resist Arrest/Assault peace officer charge, you still could be found guilty of the theft. Most theft under $5000 charges in the Toronto area arise from stores that have CCTV security video recordings of the entire incident (including charges originating from The Bay, Winners, Superstore, Costco, Wal-Mart, Loblaws, Metro, Canadian Tire, and Shoppers Drug Mart). The combination of the two charges sometimes puts defendants in a very difficult position.

Is it possible to have resisting arrest/assault Section 270 charges withdrawn?

While it is more difficult and will require a lot more work, it is sometimes possible to get the Crown to agree to withdraw (drop) the charges against you. Given the facts of the case, your personal background, your willingness to undertake tasks outside of the justice system (education programs, community service work, etc.), and having a lawyer represent you who knows which Crown Attorneys are most likely to agree to such a deal is essential.

Our approach to these cases is to take every possible step to try to get the charges dropped or withdrawn. This includes upfront strategies to demonstrate persuasive mitigating factors, adjusting dates to deal with the most lenient Crown Attorneys, and other tactics specific to the practices of the courthouse/jurisdiction your case is being heard at.

What if the Crown Attorney won’t drop the charges and seeks probation, a suspended sentence or jail?

If the Crown refuses to drop the charges despite our best efforts, our focus switches to convincing the trial judge to grant you an absolute discharge(assuming taking the case to trial is not advisable).

While not as good as a withdrawn charge, an absolute discharge will also result in no criminal record for the accused. Many of the tactics we use to convince the Crown to withdraw the charges are also highly beneficial at a sentencing hearing.

We ensure our clients are far more prepared to achieve a favorable result than 99% of defendants that the judge encounters. Our clients do not fit the profile of typical “criminals” – most are educated professionals or students with good jobs and families to support.

What other factors are considered mitigating or aggravating in resist arrest/assault cases?

The opinion and wishes of the police and “victim”.

The Crown Attorney (prosecutor) will also consider the wishes of both the security guard (“victim”) and the police officer in charge of the investigation in taking their position. Crowns often will call the police officer in charge and the victim to get their opinion as to what should happen to the accused.

In cases where the accused was very uncooperative, had an attitude, or was verbally abusive during the arrest, the police officer or victim security guard is more likely to encourage the Crown to not drop the charges. Such adversarial attitudes can also be damaging at a sentencing hearing (via testimony, Crown submissions, or victim impact statements).

Prior warnings, cautions, charges, or convictions

Like any other criminal case, your background and prior police contact history are relevant. For those who have been charged before in the past, have current criminal records, or even have been warned or cautioned by the police previously (but never charged), such histories are considered aggravating factors.

The injuries (if any) of the victim

When the victim is cut, bruised, or otherwise injured, it makes the case far more aggravating. Injuries that do not fully heal (lost teeth) or broken bones would be highly aggravating and likely make getting the charges dropped virtually impossible.

Weapons being used in the offence (Section 270.01)

If any weapon (knife, gun, pepper spray, box cutter, car, etc.) is alleged to have been used while resisting arrest, the case would normally be considered extremely serious. In cases that involve the use of a weapon, the Crown normally elects to proceed by indictment and will seek a term of jail. Sometimes this charge is included despite relatively minor circumstances. Some Crowns, seemingly as a knee-jerk reaction, will seek jail or house arrest without considering the totality of the circumstances just based on the weapons inclusive charge itself.

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You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with all forms of theft and fraud related offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on theft and fraud related charges protect you and your future from the stigma and consequences of a criminal record.

Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

We provide our clients with:
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* Please note:

If you are not a paying client, we cannot answer questions and provide assistance with U.S. travel, immigration, employment background checks, and avoiding a criminal record. This includes those who have already retained other counsel and those whose cases have already been completed. We also only take calls/emails relating to Ontario, Canada area cases.

Are you a lawyer? If you are defending a theft or fraud related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.


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  We provide:
  • Flat fee pricing
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  • U.S. travel advice and information
  • Help with related immigration issues
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • A clear goal of getting the charges dropped without a trial
  • Vulnerable Sector records suppression help
  • Timely resolutions
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  • Experienced, focused counsel