Motor Vehicle Theft (s. 333.1) Charges in Canada: Offences, Defences, Punishments

What is “motor vehicle theft” in Canada

Motor vehicle theft is an offence under section 333.1 of the Canadian Criminal Code. It captures the specific act of stealing a motor vehicle and isolates this act as an offence outside of other types of theft.

Motor vehicle theft involves taking a motor vehicle for which you do not have rightful ownership of or any proprietary rights to without consultation with or appropriate compensation to the owner of that vehicle. In the plainest of terms, it is stealing a motor vehicle that is not yours or making it inaccessible to its rightful owner.

Motor vehicle theft is a hybrid offence meaning the Crown, based on the circumstances surrounding the theft, the facts of the case, and the seriousness of the offence, can elect to proceed via an indictable charge (more serious category of criminal offences) or summarily (less serious category of criminal offences).

Examples

Some examples of “theft of a motor vehicle” might include:

• Stealing with or without the keys (hotwiring), a car;
• Stealing with or without the keys, a motorcycle or moped (electric scooter)
• Stealing an aircraft
• Stealing a boat/watercraft
• Opportunistic theft (i.e., stealing an idling vehicle)
• Borrowing a vehicle without permission

Note this list is not exhaustive.

Defences

A strong defence to a charge of motor vehicle theft will depend on the circumstances of one’s case.

However, some common defences against a charge of motor vehicle theft include:

• Factual innocence (claim of right to the property)
• Colour of right
• Lack of mens rea
• Identity
• Applicable Charter Defences

Punishment

The punishment for a motor vehicle theft conviction depends on two main considerations:

• Whether the Crown elects to proceed as an indictable charge or a summary one; and
• whether this is the offender’s third or subsequent motor vehicle theft conviction.

If the Crown proceeds by way of indictment, upon a finding of guilt, the offender is subject to:

• a term of imprisonment not exceeding 10 years; and
• if a third or subsequent charge of motor vehicle theft, to a minimum of six months imprisonment.

In other words, there is no minimum penalty for committing motor vehicle theft unless this is your third or subsequent conviction for motor vehicle theft. If convicted summarily, the offender is subject to a maximum penalty of two years less a day imprisonment.

Overview of the Offence 

Under s.279 of the Criminal Code:

“Motor vehicle” is defined under section 2 of the Criminal Code as:

a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment

To secure a conviction, the Crown must prove the mens rea and actus reus elements of the offence. Put differently, the Crown must demonstrate that the physical act of motor vehicle theft occurred and that the accused had the requisite mental intent. You are guaranteed a constitutional right to the presumption of innocence; if the Crown cannot demonstrate these criteria, there can be no conviction.

The Guilty Act (Actus Reus)

There are multiple components to demonstrating a theft charge. These are all broken up individually below.

“Fraudulently”

Section 322(1) of the Criminal Code (which tells us what constitutes theft) says that “everyone commits theft who fraudulently […] takes […] anything…”. Therefore, the Crown is responsible for showing that the taking of the motor vehicle was indeed fraudulent.

In the context of theft, “fraudulent” has been described as “acting knowingly against the owner’s wishes” (see: Peter Sankoff and Morris Manning’s Criminal Law published in 1978). The Ontario Court of Appeal in the case Regina v Wilkins, 1964 CanLII 307 (ONCA), defined “fraudulently” as meaning “that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person”. The Crown must show that the taking of the motor vehicle was fraudulent for the offence to be made out.

“Takes”

Section 322(1) of the Criminal Code uses the word “takes”. “Everyone commits theft who fraudulently […] takes […] anything…”. Therefore, the Crown must show that the motor vehicle was taken. We know from the Criminal Code itself that “taking” is defined as the physical act of moving anything with intent to steal. There need be no attempt at concealment (see: ss. 322(2)-(3)). The “taking” component has both a physical element (which speaks to the actus reus aspect of the offence) and a mental element (which speaks to the mens rea aspect of the offence). The actus reus consideration is whether the object was moved. The mens rea consideration is whether the object was moved with an intent to steal it. As soon as the object is physically moved, provided the necessary intent to steal is established, the offence of theft (not attempted theft) is complete. See below a further discussion of the concept of “taken” in the context of establishing the mens rea.

“Converts”

If the item is not actually taken, the Criminal Code in section 322(1) also states that “everyone commits theft who fraudulently […] converts to his use or to the use of another person, anything…”. Conversion is “an act of interference with a [motor vehicle] inconsistent with the right of another, whereby that other is deprived of the use and possession of it” (see: R v Stewart, 1988 CanLII 86 (SCC), [1988]  SCR 963).

“Anything” (motor vehicle)

In the context of a motor vehicle theft as criminalized by s. 333.1 of the Criminal Code, the term “anything” under section 322(1) is replaced with the term motor vehicle. In other words, the Crown must show that the object taken or converted was a motor vehicle. See the definition of motor vehicle within the Canadian Criminal Code, here. Should the item not fit within the definition of motor vehicle, this fact on its own isn’t likely to disqualify the charge of theft but would shift it to a simple theft charge as per section 322(1) of the Criminal Code as opposed to a charge of theft of a motor vehicle under section 333.1.

“Deprive the owner”

Section 322(1) of the Criminal Code goes on to note that this fraudulent taking or converting of the motor vehicle must be with an intent to deprive the owner. There is also both a mental element and a physical element to this criterion. The owner might actually have been fully deprived of the taken or converted motor vehicle (actus reus) or otherwise, that the accused intended to deprive the owner of his possessory right to the motor vehicle is sufficient to prove the elements of the offence. Depravation does not rely on the Crown proving who the rightful owner of the motor vehicle is, only that the Crown proves that the accused in fact, did not have a possessory right or proprietary interest in the motor vehicle (see: O’Keefe v R, 2007 NLCA 58 (CanLII); and Regina v McDowell, 1970 CanLII 1072 (ONCA)). Furthermore, the Crown only needs to provide circumstantial evidence of ownership (see: R v Bagshaw, 1971CanLII 13 (SCC), [1972] SCR 2).

In summary, to satisfy the requisite actus reus element for theft of a motor vehicle, the Crown must show that:

1. The accused either took or converted a motor vehicle;
2. fraudulently; and
3. deprived the owner of their right to the motor vehicle.

If ALL of these criteria are met, the actus reus standard of the offence is met.

Mens Rea (The Guilty Mind)

In addition to demonstrating the actus reus, the Crown must also prove the mens rea standard or requisite mental element of the offence. The mens rea elements are broken up and discussed separately directly below.

“Without colour of right”

While all of the actus reus elements may be met, section 322(1) of the Criminal Code goes on to note that “[every] one commits theft who fraudulently and without colour of right takes […] anything…”. Technically speaking, colour of right, is a statutorily offered defence to theft. While the taking of an item might be fraudulent, if it is without colour of right, there is no theft.

The term “colour of right” generally, refers to a situation where there is a founded belief of a proprietary or possessory right to the (in the instance of theft of a motor vehicle) motor vehicle (see: R v Howson, 1966 CanLII 285 ONCA). While the Crown bears the burden of proving that a theft was committed without colour of right, practically speaking, this criterion only needs to be disproven should there exist in evidence an actual air of reality to the notion that the defendant believed he had a right to possess the object (see: R v Horse, 2019 SKCA 56 (CanLII)). In other words, if the accused never raises the defence, it is unlikely that the Crown will find a colour of right on the evidence. This is not because the Crown avoids or ignores evidence which might point to a colour of right defence, but that it is hard to come across such evidence naturally without the defendant’s claim to it (see: R v Foidart, 2005 MBCA 104 (CanLII)). As per R v Manuel, 2008 BCCA 143 (CanLII), this belief must be a sincerely held belief in a legal right, not a moral right, to do what was done. A mistaken belief can also exist in a mistaken state of facts (see: R v Dorosh, 2003 SKCA 134 (CanLII)). 

“Takes” continued

As discussed above, the Crown must prove either that the motor vehicle was taken or converted. To prove that it was taken, there is both a physical element and a mental element to “taking”. Unless the necessary intent to take or convert is established, no conviction will lie, even where an accused moves an article and conceals it (see: Regina v Nesbitt, 1972 CanLII 1314 (ONCA)). For example, if you came across an abandoned vehicle and decided you were going to bring it to a police station for it to be returned to its rightful owner, while you physically took the vehicle, arguably, you did not intend to take it or deprive the owner of their possessory right. Furthermore, “an offender cannot assault, or otherwise abuse, partners or strangers to the point whereby they are simply prepared to hand over worldly goods and then claim that those items were given to them voluntarily” (see: R v K (C.B.), 2015 CarswellNS 1003, 2015 NSCA 111, 367 NSR (2d) 65, 1157 APR 65 (NSCA)). The intent requirement helps the courts differentiate between ‘taking to steal’ and ‘taking for alternative (perhaps for more altruistic) purposes’.

“Deprive the owner” continued

In the context of depriving the owner, again there is both a mental and a physical element to this component of the offence. As noted by the British Columbia Court of Appeal, a bona fide (good faith) belief that goods are actually lost or abandoned and that the owner cannot be found is inconsistent with an intent to deprive anyone of the goods (see: R v Konken, 1971 CanLII 1326 (BCCA)). As aforementioned, the intent to deprive the owner of his possessory right or proprietary interest is sufficient in demonstrating the mens rea.

All in all, to prove the mens rea elements of a theft of a motor vehicle offence, the Crown must show:

1. that the fraudulent taking or converting of the motor vehicle was without colour of right;
2. that there was an actual intent to take the motor vehicle; and
3. that there was an intent (or the accused did) to deprive the owner of their possessory right to the motor vehicle.

Motor Vehicle Theft Defences

The availability and strength of any defence depends entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a motor vehicle theft charge:

Factual innocence (claim of right to the property)

Simply put, a claim of right to the property is meant to demonstrate on the evidence that you are rightfully and lawfully entitled to possess the motor vehicle. An example of this, might be a tow truck driver. While a tow truck driver has no actual possessory right to or proprietary interest in your vehicle, he or she is typically legally permitted to tow your vehicle if, for example, you’re unlawfully parked on private property. While the tow truck driver might meet all of the requirements for a theft charge, this is negated by the fact that he or she was legally excused. Factual innocence may also be a defence where one actually has a proprietary interest or possessory right to the motor vehicle (e.g., you have title over the vehicle). Any sort of legal excuse, permission from the owner, or possessory/proprietary right to the motor vehicle may all be evidence as to factual innocence and aid in your defence.

Colour of right

As discussed above, colour of right is available as per the wording of section 322(1) of the Criminal Code, to a charge of motor vehicle theft. Colour of right is a defence that can be raised when you believe that you had a proprietary or possessory right to the stolen item when in reality you did not. Otherwise said, colour of right refers to a situation where if the facts that you believed to be true were true, you would not be guilty of theft.

An example of a colour of right defence would be where you took something because you honestly believed it was being lent to you. For example, you could take your friend’s car with the honest but mistaken belief that he was lending it to you, even though he was not. If you can provide a factual basis that shows that you honestly and reasonably believed in this particular state of affairs, you can use the defence of colour of right.

However, when raising colour of right as a defence, it is very important to note that the mistaken belief must be related to a mistaken understanding about the legal status of property, not your moral right to property. That is, you would not be justified in taking something because you were of the view that the person ‘owed you’ or that you were entitled to the property, so you decided to compensate yourself by taking it without consent.

Lack of mens rea

One common and effective defence to a theft charge is to argue that you did not have the mental intention required to be found guilty of this offence. That is, while you may have taken the goods in question, it is also possible that you did not have the fraudulent intent required to be guilty of theft. In the context of simple theft, a basic example of theft without intent would be if you accidentally walked out of a store with an item you did not pay for.

Identity

In the circumstances where your offence was not recorded, or the recording of the alleged offence is of dubious quality, you may be able to raise identity as a defence. That is, you can assert that you were not the person who committed the offence, and that the authorities made a mistake when identifying you as the perpetrator. To effectively raise this defence, it is important that you have some sort of corroborative evidence, for example, an alibi or evidence that suggests you could not have committed the offence because you were somewhere else at the time.

Applicable Charter defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter. Some examples of your legal rights under the Charter include the right against unreasonable search and seizure (section 8), the right to be promptly informed of the reasons for your arrest (section 10(a)), the right to legal counsel (section 10(b)), and the right to remain silent (section 11(c)) amongst other important rights embedded in the Charter.

Motor Vehicle Theft Punishment

Motor vehicle theft is isolated from simple theft in the Criminal Code likely because Parliament sought to demonstrate the seriousness of stealing a motor vehicle as opposed to other animate or inanimate objects and also to specifically account for serial car thieves by implementing a minimum sentence for those who have committed the offence more than twice. Therefore, the sentence for motor vehicle theft can differ from that of a charge of simple theft. The prospective sentence for a motor vehicle theft charge depends on whether or not the Crown elects to proceed by way of indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences).

Should the Crown proceed by way of indictment, the offender could be subject to up to 10 years imprisonment. There is no minimum punishment for motor vehicle theft unless this is your third or subsequent charge for motor vehicle theft; in that case, the minimum punishment is six months imprisonment. If the Crown proceeds with the charge(s) summarily, the maximum punishment is two years less a day imprisonment. Whereas in both circumstances (indictable or summary), the sentencing court is given wide discretion (unless this is a third or subsequent charge), all sentencing dispositions are available. Additionally, the court may consider ancillary sentencing orders. These are outlined below.

Sentencing Dispositions Available to the Sentencing Judge

• Absolute or conditional discharge ( 730 of the Criminal Code). This literally means that you may be discharged from the conviction. A conditional discharge could be, for example, combined with a probation order.
• Probation ( 731(1)(a) of the Criminal Code).
• Stand-alone fine ( 731(1)(b) of the Criminal Code).
• Probation and custody ( 731(1)(b) of the Criminal Code).
• Fine and custody ( 734 of the Criminal Code).

This is not an exhaustive list but speaks to some of the more common sentences available to a court upon theft of a motor vehicle convictions.

Ancillary Sentencing Orders

In conjunction with any of the aforementioned sentencing dispositions, a court is also entitled to make the following sentencing orders:

• Victim protection orders (ss. 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) of the Criminal Code). Victim protection orders include communication bans (e.g., not being allowed to speak with victims, witnesses, etc.) or bans on visiting certain sites or homes.
• Restitution (ss. 738 and 1(3)(h) of the Criminal Code). This is an order to pay money to a victim for damage to property, harm caused to the victim, etc.
• Forfeiture of offence-related property ( 490.1 of the Criminal Code). This would be a request by the court to relinquish or return the stolen property.
• DNA order ( 487.04 of the Criminal Code). The court could request that a DNA sample be ordered and stored in the DNA databank. This is ONLY applicable to indictable charges for this type of offence.
• Victim surcharge fine ( 737 of the Criminal Code). Victim surcharge fines are court-ordered fines made out to a public victim fund which is then distributed to victims on an ad hoc basis.

Because the capacity for theft offences to vary in degree of severity and the capacity for the circumstances of theft offences to differ notably in nature, sentences for this type of offence greatly range. One of our defence lawyers will be able to provide you with information on realistic sentencing dispositions given the circumstances of your specific case.

Frequently Asked Questions

What is the punishment for car theft in Canada?

Motor vehicle theft in Canada is a hybrid offence therefore, the punishment for motor vehicle theft in Canada depends on two main considerations:

• Whether the Crown opts to proceed with the charge(s) via indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences); and
• if charged via indictment whether this is your third or subsequent offence of this nature.

If the Crown proceeds by way of indictment, the prospective sentence can be up to 10 years imprisonment. There is no minimum sentence unless this is your third or subsequent offence of this nature; in that case, the minimum sentence is six months imprisonment. If the Crown proceeds summarily, the maximum sentence is two years less a day imprisonment. There is no minimum sentence for a summary motor vehicle theft charge.

Is receiving a stolen motor vehicle a criminal offence in Canada?

Receiving a stolen motor vehicle can be considered a crime in Canada. This depends entirely on whether you knew the motor vehicle was stolen when you bought or received it. While it might seem like an easy ruse to just suggest regardless of the fact, that you did not know the items you purchased were stolen, the doctrine of “wilful blindness” can come up against this claim. For example, if you purchase a motor vehicle at a severely discounted price with knowledge that the vehicle’s typical market value greatly exceeds the price you are purchasing it at and you have reason to believe that the items might be stolen or were procured illegitimately and you do nothing to investigate this suspicion, you could be found guilty of possession of stolen property. Click here to read our article on possession of stolen property.

How long does a motor vehicle theft charge stay on your record in Canada?

Criminal charges of any kind generally remain on your record for life (technically speaking until you are 80 years old except for more serious convictions such as murder which may exist on your record until you’re 100 years old). Nevertheless, there are some exceptions to this:

• If you are a youth when you commit motor vehicle theft, provided you do not commit another offence as an adult, your record will be sealed.
• Generally, after 10 years (so long as you don’t re-offend), adult offenders are allowed to apply for a record suspension or what is sometimes referred to as a pardon. Record suspensions place the record under seal and make the record inaccessible to the public.
• You were found guilty of the offence but absolutely or conditionally discharged. In this instance, conditional discharges are sealed after 3 years and absolute discharges after 1 year.

This is a very nuanced area of law and there are many factors which need to be considered (such as age, criminal history, nature of the offence, etc.) when assessing how long one’s record may last, how that record may be accessed and who may access it at any given time. Please reach out to one of our lawyers for a more expansive discussion on prospective criminal records.

Published Decisions

R. v Alm, 2017 ABCA 289 (CanLII)

Mrs. Alm purchased a vehicle from her neighbour who was elderly and known to have diminished cognitive capacity. She purchased the vehicle from him for $20. Mrs. Alm testified that the vehicle was meant to be a gift and that the $20 was meant to cover registration costs. While Mrs. Alm testified to being unaware of her neighbour’s diminished cognitive capacity, the Crown contended that Mrs. Alm, knowing her neighbour was mentally handicapped, fraudulently compelled the victim to gift her the vehicle for a severe discount from its true market value. Mrs. Alm was found to have been aware of the neighbour’s diminished mental capacity and was convicted of theft of a motor vehicle for fraudulently coaxing the neighbour into gifting the vehicle to her.

You can read the full case here.

R. v Thomas, 2007 NBCA 3 (CanLII)

Mr. Thomas stole a 1998 Dodge Ram and wilfully destructed the property. On October 17, 2003, a 1998 Dodge Ram 3500 Series one-ton truck, the property of MacLeod General Construction Limited, was taken from a residence on Riverview Drive in Florenceville. Early the next morning, the vehicle was found burned in a schoolyard in Centreville. Mr. Thomas confessed to his friends his involvement in the crime noting it was stolen for a joyride and then subsequently set on fire by him. The friend turned him into the authorities and Mr. Thomas was convicted of one count of motor vehicle theft.

You can read the full case here.

R v T.(S.), 1994 CanLII 2433 (BCCA)

This case brought into question both the mens rea and actus reus elements of the offence. A youth (T) was watched by a police officer while he entered a van for which the police officer knew belonged to one of his colleagues. On the evidence, there was no known way for which T could have started the vehicle (there were no keys and known tools available to T to perform a hotwiring). Therefore, while the Court of Appeal noted that the actus reus elements were present, the mens rea element for the offence could not be made out and the conviction was therefore set aside.

You can read the full case here.