Theft Lawyers

What is Theft?

Theft under Canadian criminal law is a non-violent property offence that covers any taking or converting of another person’s property without their consent. An easy example is shoplifting. Classified according to the value of the subject of the offence, theft under $5,000 is distinguished from that over $5,000.

You may be charged with theft if you intentionally take another person’s property without the lawful authority to do so. The monetary value of the subject of the offence dictates whether you will be charged with theft under $5,000 or theft over $5,000.

To yield a conviction of theft, the Crown Prosecutor must prove beyond a reasonable doubt:

• You took or converted property
• You moved (or tried to move) something that belongs to someone else
• The owner of the property did not give you permission to take or convert it
• The property was not given to you
• You intended to deprive the owner of their property
• The value of the subject of the offence (and whether it’s over or under $5,000)

The Crown Prosecutor must also prove:

• Your identity
• The date and time of the offence
• The location of the offence

Theft Over $5,000

While the elements of theft under $5,000 and theft over $5,000 are the same, the consequences for theft over $5,000 are notably more severe. Generally speaking, the value of the subject of the offence is positively correlated with the severity of punishment upon conviction.

Shoplifting

Shoplifting is theft. Shoplifting occurs when you take merchandise from a retail store without paying for it. Since the stolen property is almost always low ticket items, most shoplifting results in a charge of theft under $5,000 — which is why shoplifting and theft under $5,000 are sometimes used interchangeably.

You cannot be charged with shoplifting if you did not intend to remove the merchandise from the store. Forgetting to pay for an item or forgetting that you were carrying an item does not qualify as shoplifting, and these are therefore common defenses to such charges — especially where there is CCTV footage of the alleged act.

Theft vs. Fraud

Theft is similar to fraud in that both involve the deprivation of money or property, and both are classified according to the value of the subject of the offence (under or over $5,000). But while property is taken in theft, it’s offered in fraud. That is, victims of fraud willingly forfeit their property to fraudsters under false pretenses.

If you were to hotwire a car, drive it away and strip it for parts, that would be theft. If you instead gained access to this car by posing as a parking valet to whom the owner voluntarily gave their keys, that would be fraud. The deliberate act of deception — absent in theft — is what separates fraud from theft.

Theft vs. Robbery

Theft is similar to robbery in that both involve the deprivation of money or property. But while thieves simply take property, robbers use threats, force, intimidation or coercion to acquire someone else’s belongings. Unlike theft, robbery is a purely indictable offence.

Mugging is a classic example of robbery. Muggers generally operate on the street, accosting unsuspecting pedestrians with demands for wallets, purses or goods. If a mugger uses a weapon or imitation weapon in the commission of the offence, they would be charged with armed robbery. 

Theft vs. Break and Enter (Burglary) 

Offences that used to be classified as burglaries are now called break and enter offences. Similar to theft, break and enter offences involve the deprivation of money or property — though break and enter offences do not necessitate a loss. 

Break and enter offences involve breaking into and entering a premises merely for the purpose of stealing money or property. Upon breaking in and entering, a successful thief could be charged with theft, possession of stolen property and mischief in addition to break and enter. An aggravating factor that leads to more severe sentences, home invasion charges could also result if someone were home during the break and enter and attempted theft.

Theft in the Criminal Code of Canada

Section 322 of the Criminal Code states that every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
2. to pledge it or deposit it as security;
3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Section 334 of the Criminal Code states that except where otherwise provided by law, every one who commits theft

1. if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of
1. an indictable offence and liable to imprisonment for a term of not more than 10 years, or
2. an offence punishable on summary conviction; or
2. if the value of what is stolen is not more than $5,000, is guilty
1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
2. of an offence punishable on summary conviction.

Theft Charges

Upon an allegation of theft police will proceed to recommend charges to Crown Counsel. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. 

When you are charged with theft, you will either be released by police or held for a bail hearing. If allowed to leave, officers will provide you with a document stating when and where you must appear in court and any conditions related to your release. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace for a bail hearing or are released by police.

Theft Bail Conditions

So long as you lack a history of violence, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions will likely require you to:

• Avoid all contact with victims, witnesses and co-conspirators 
• Avoid the victim, complainant or co-conspirator’s residence, business, school, place of worship and other frequented establishments
• Avoid the business or establishment where the alleged theft was committed
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)
• Remain within a specific geographic area
• Forfeit your passport
• Report to a bail supervisor

Factors that may affect your bail conditions include:

• The value of the subject of the offence
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Theft Penalties

Penalties for theft depend on the value of the subject of the offence, the accused’s criminal history and personal circumstances, and the presence of aggravating factors. In determining what sentence to seek, the Crown will assess the value of the stolen items, the level of trust breached, whether you have a criminal history, and the situation from which the theft arose.

Stealing from an employer and other breaches of trust are considered aggravating factors on sentencing and generally result in harsher sentences. Having an existing criminal record with theft charges will also increase the severity of your sentence. For less severe offences, like most shoplifting cases (under $5,000), you may be eligible for an alternative measures program.

Theft Under $5,000/Shoplifting Penalties

• Up to five years in prison if charged indictably
• Up to two years less a day in prison if charged summarily
• Possible referral to an alternative measures program
• Criminal record
• Travel restrictions to the United States
• Probation
• Fines
• Restitution
• Possible revocation of immigration status
• Reputational damage

Theft Over $5,000 Penalties

• Up to 10 years in prison
• Criminal record
• Travel restrictions to the United States
• Probation
• Fines
• Restitution
• Possible revocation of immigration status
• Reputational damage

Defending Theft Charges

Theft allegations require immediate legal attention. Outcomes in theft cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled theft lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via an alternative measures program
• Defending you at trial
• Sentencing

Alternative Measures Programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, your charges will be withdrawn and you will not receive a criminal record.

Alternative measures may include:

• Compensation for the loss or damage
• An apology
• Community service work
• Culturally-based practices for Indigenous people

Theft Trial Defences

Should your case go to trial, defences to theft charges include (but are not limited to):

• Colour of right: Colour of right applies in situations where you honestly believed you purchased or were given the items you allegedly stole. This defence is negated in the event you take something without consent to level an outstanding debt with the complainant. The test for colour of right is whether you would be entitled to the goods had the situation unfolded like you legitimately, albeit mistakenly, believed. Walking out of a store with goods believed to be purchased, though the electronic method of payment was actually declined, or keeping something you believed was given to you when it was actually merely loaned are situations where the colour of right defence may apply.
• Mistaken belief in ownership: Conscious intent is an essential element of theft. Taking something you honestly but mistakenly believed to be yours should not yield a criminal conviction. 
• Honest mistake: An essential element of theft is conscious intent. Accidentally walking out of a store with an item you didn’t purchase should therefore not result in a criminal conviction.
• Personal title: You cannot steal what is yours. This defence may be used when a complainant lays claim to something that is actually yours. Though this defence is particularly compelling when you can prove an item is yours with receipts or photographic or video evidence, it is voided if you take something to which you have title through fraudulent means. You could not, for example, use your proprietary interest in your computer to steal it from a repair shop without paying the servicing fee. So long as you solicited the repair, you are legally obligated to pay for the cost of the repair before retrieving your computer.
• Identity: If you were not recorded, or if footage of the alleged offence is of poor quality, you may be able to raise reasonable doubt that you are indeed the offender in question. This defence is bolstered by an alibi, substantiated by eyewitness, video or electronic evidence, placing you somewhere else at the time of the offence.
• Violations of the Charter of Rights and Freedoms: Charter applications, motions detailing the ways police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer. When police violate Charter rights during an investigation, the evidence obtained over the course of the investigation may be deemed inadmissible. 

Sentencing

If your case cannot be resolved by way of an alternative measures program, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Theft

• What is Theft
• Theft in the Criminal Code of Canada
• Theft Charges
• Theft Bail Conditions
• Theft Penalties
• Defending Theft Charges