Theft (s. 322 (1)) Charges in Canada: Offences, Defences, Punishments

By Last Updated: November 4, 2022

theft charges in canadaWhat is Theft?

Theft is a type of non-violent property offence that covers a variety of illegal acts, including shoplifting or taking the personal property of a friend, family member or stranger without consent.

Theft is covered under s. 322(1) of the Criminal Code of Canada (the “Code”) and is generally divided into two categories:

  • Theft over $5,000; and
  • Theft under $5,000.

There are also special categories of theft such as motor vehicle theft under section 333.1(1) of the Code.

Although the rate of theft seemed to drop between 2019 and 2020 from 226,428 incidents in Canada to 180,504, this is largely thought to be due to the COVID-19 pandemic when more people were at home. 2021 numbers already indicate theft numbers are back on the rise and this is anticipated to also be reflected in 2022 statistics.

Theft Overview Video

Theft Defences

Every case is different. Defences that may be available in one case may not be available in another. The strength of any defence rests on the evidence against you and the precise details of the allegations.

There are many defences to theft that can be used including showing a lack of mens rea or actus reus (meaning the mental and physical elements of the offence are not made out), proving that you owned the property or colour of right (meaning you honestly believed you had a lawful right to the property when you did not).

Theft Punishment

Theft is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of punishments that you are given, with indictment being the more severe of the two.

Your chance of receiving a jail sentence for a theft charge is significantly heightened if:

  • The amount of the theft was over $5,000; and/or
  • The theft occurred in the course of employment, or in another trust-based relationship.

Although the Code does not provide minimum sentences.

The maximum sentences are outlined as follows:

  • For theft in an amount over $5,000 the maximum penalty is:
    • Indictment: No more than 10 years imprisonment.
    • Summary: Up to 2 years less a day imprisonment.
  • For theft in an amount equal to or less than $5,000:
    • Indictment: Up to 2 years less a day imprisonment.
    • Summary: Up to 2 years less a day imprisonment.

It is important to note, that although the Crown is able to elect to proceed summarily or by indictment when the charge is theft over $5,000, it is extremely rare for them to proceed summarily meaning you can expect a significantly higher punishment for the offence.

Theft Laws in Canada Infographic

Have you been charged with theft?

Our experienced team of criminal defence lawyers is standing by to help you fight the charge. Contact us today for a free, no-obligation consultation to discuss the specifics of your case and craft a formidable defence.

Call Now 1-866-939-5940

Overview of the Offence

The relevant provision for theft in the Code is:

Theft

(1) 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

a) 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;

b)
to pledge it or deposit it as security;

c)
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

d)
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.

It is critical to remember that in Canada it is your constitutionally protected right to be presumed innocent until proven guilty.

This means that the Crown must prove all elements of the offence beyond a reasonable doubt for you to be convicted. If doubt can be raised that you did not complete the physical or mental components of the offence (as described below) the Crown will not be able to secure a conviction against you.

The Guilty Act (Actus Reus)

The actus reus (physical element) for theft required to prove the offence beyond a reasonable doubt is:

  • Taking something whether animate or inanimate fraudulently and without colour of right.

The concept of colour of right is not set out in the Code, rather caselaw such as R v Dorosh, 2003 SKCA 134 describes it as “an honest belief in a state of facts, which if it actually existed would at law justify or excuse the act done.”

The Guilty Mind (Mens Rea)

In addition to the actus reus, the Crown must also prove beyond a reasonable doubt the mental element of the offence.

Theft requires that you intend:

  • To deprive (temporarily or absolutely) the owner of the property; or
  • To pledge it as security; or
  • To return it to someone in poor or unusable condition; or
  • To deal with it in a manner that it cannot be restored to its condition at the time it was taken.

To provide an example, if you leave a store after purchasing a cart full of groceries and there is an item in your cart that you did not pay for however you are honestly believed that you did, the necessary mental element of the offence is not made out and the Crown will be unable to proceed with its charge.

Are you being investigated by the police for a criminal offence?

Learn about precharge legal advice and how it can help you to avoid being charged with a criminal offence in the first place.

Watch Video

Theft Defences

How to Beat a Theft Charge

As previously mentioned, every case is different. There is no single defence that can be applied to every allegation of theft. That said, there are numerous defences available that when used effectively can significantly and positively affect the outcome of a case.

In general, the best defences are:

Factual Innocence

This is usually the strongest defence because the facts and the evidence do not support you being there or the property you took actually belongs to you. Examples include:

You owned the property

You cannot steal what is actually yours. Therefore, if you are able to establish that you had a proprietary or possessory interest in the item, you may be able to defend yourself against the charges. Documents proving ownership of the property will likely be of significant assistance in raising this defence. However, even if you have a proprietary or possessory right in the good, if you take it from another person by fraudulent means, you could still be charged with theft in certain circumstances. For example, you could not use the proprietary interest you have in your vehicle to steal it from an impound lot without paying the fee.

Identity

In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.

No Mens Rea/Actus Reus

A common defence available in theft cases is that you did not intend to take the property. A basic example would be if you accidentally walked out of a store with an item you did not pay for.

Violation of Constitutional Rights

The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

Colour of Right

This defence may arise when you honestly believed you had a lawful right to property when in reality you did not. For example, if you took your friend’s car with the honest but mistaken belief that he was lending it to you, even though he was not. In order to raise this defence, you will need to establish a factual basis to show that you honestly and reasonably believed in this particular state of affairs.

While the Crown must prove the elements of the offence beyond a reasonable doubt, you bear the responsibility of raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can employ, depending on the circumstances of your case.

Our lawyers have significant experience assessing the availability and strengths of various potential defences in voyeurism cases, as well as presenting any and all available defences to the court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

Theft Punishment

The Code outlines the maximum punishments for theft. A critical factor in your punishment is whether you have committed theft in an amount over $5,000 or an amount equal to or less than $5,000. Both offences are considered hybrid offences, meaning the Crown may decide to proceed summarily or by indictment. An indictment is the more serious of the two.

For theft over $5,000 the maximum penalty is:

  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

For theft under $5,000:

  • Indictment: Up to 2 years less a day imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

The sentence you will receive depends on a variety of factors including:

  • The amount that was taken;
  • The relationship between you and the alleged victim; and
  • Your criminal history.

The two most significant factors that will increase your likelihood of receiving jail time include:

  • If the theft was in an amount over $5,000; and
  • If the theft occurred during the course of employment, or in another trust-based relationship.

As mentioned, although the Crown is able to elect to proceed summarily or by indictment when the charge is theft over $5,000, it is extremely rare for them to proceed summarily meaning you can expect a significantly higher punishment for the offence. In these instances, the Crown will almost always seek a jail sentence.

In addition to the immediate penalties resulting from a conviction for theft, it can have wide-ranging negative consequences on your future. You may have trouble securing employment in the field of your choice. This is especially the case for roles that require handling money or valuable items. The lifelong criminal record that results from a conviction can hinder immigration and travel.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even when the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for voyeurism. In fact, we can canvass a range of sentencing options with the Crown that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Frequently Asked Questions

Is it illegal to steal in Canada?

Yes. Formally known as “theft,” section 322(1) of the Code states it is illegal to take something, temporarily or absolutely that is not yours or which you do not have consent or authority to take, pledge, alter, or deposit.

What is the punishment for theft in Canada?

The Code outlines the maximum punishments for theft. A critical factor in your punishment is whether you have committed theft in an amount over $5,000 or an amount equal to or less than $5,000. Both offences are considered hybrid offences, meaning the Crown may decide to proceed summarily or by indictment. An indictment is the more serious of the two.

For theft in an amount over $5,000 the maximum penalty is:

  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

For theft in an amount equal to or less than $5,000:

  • Indictment: Up to 2 years less a day imprisonment.
  • Summary: Up to 2 years’ less a day imprisonment.

What is theft over $5,000?

Theft over $5,000 refers to the value of the goods you have allegedly taken without consent, or which are not yours and the total value of those goods is more than $5,000 Canadian Dollars.

Published Decisions

R v Milne, [1992] 1 SCR 697

Although dated, this case remains important in considering the concept of “mistake” in relation to theft. The accused deposited a cheque to his company’s account, knowing that he had already been paid for that transaction and cashed a cheque in the same amount prior. He later withdrew the money from the account for personal use. The Supreme Court of Canada determined that because the accused knew the cheque was issued by mistake and knowingly deposited and then withdrew the cash for personal use, he intended to deprive the issuer of the cheque of their property and was therefore guilty of theft.

You can read the full decision here.

R v Thomas, 2016 BCPC 391

The accused was charged with theft under $5,000 after he took two car batteries from the driveway of the complainant and sold them. He was seen taking the batteries via the complainant’s home surveillance system. The accused raised the defence of colour of right whereby he honestly believed the batteries were free for him to take. The court found the accused guilty of theft as they did not believe the accused’s testimony that he was known to the complainant as a “scavenger” and they had frequently left items out for him to take without issue in the past therefore he honestly believed the batteries were available to him.

You can read the full decision here.

R v Korem, 2017 NSPC 59

The accused was charged with theft after he removed most of the contents from his matrimonial home while his estranged wife was out of the country amid their divorce proceedings. The accused was charged because it was alleged, he had removed items she had acquired after their separation. The accused raised the “colour of right” defence advising he honestly believed he only took items which belonged to him. The Court reviewed each piece of property individually and found the accused guilty of theft of specific items and not guilty on others.

You can read the full decision here.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

Ask A Question

We endeavor to respond to questions within 24 hours. If your matter is urgent, please call our office or submit a request for a free consultation.

Client Reviews

Michael Oykhman is a very professional lawyer and the first time I spoke to him he asked about my situation and he gave me some very helpful advice and assistance and also told me his odds of winning this case. During the days I was in contact with micheal I could feel the level of professionalism of him and his team, he is able to respond back to you with any questions you have within 24 hours. In the end he was as successful in helping me win my case as he had initially promised me.If you are still struggling to find a lawyer, I highly recommend Michael Oykhman.

R.W.

Please give yourself a favour and contact Mr. Michael Oykhman if you need any legal advice or if you are in a terrible situation. Even-tough, the odds are not in your favour, still they will go extra miles to help you out in bad situation and get you favourable outcome. Moreover, They will work on your file even after the business hours. I don’t have words to say thanks to Mr. Michael oykhman and Kiran Cheema who had worked on my file and get me out of trouble. I’m very grateful for your assistance and exceptional service. HIGHLY RECOMMENDED.

Y.

I am grateful that Ms. Moira McAvoy was my lawyer, and I remain thankful to her for everything. She made a successful resolution to my case possible. Ms. Moira McAvoy is a professional, trustworthy lawyer, and a compassionate person. She is an excellent listener and knowledgeable of the law. From the start, she was an excellent guide. I did not know anything about the legal system and court, and she outlined everything clearly in advance, so I could understand things. She never rushed me through anything. She spoke clearly, explained everything, considered what I said, and provided options and advice. She kept me up to date on new information, requirements, and deadlines. She was always positive and this helped so much.

C.S.

Ryan Patmore and his team are simply the best. I was bullied by CPS in 2020 and it landed me with three separate charges, assault, refusal to blow and DUI, which all went down as I was parked at a friends. After some research and a conversation with Michael, he directed me towards Ryan and at the time I didn’t know that would be a game changer in my favour! He is honest, transparent, helpful and a brilliant mind. He successfully appealed my license suspension with ATSB and then proceeded to get the crown to dismiss all my charges before trial. I never had to step foot inside a courtroom. If you are in need of a criminal defence lawyer, don’t think twice, get in touch with this firm and ask for Ryan Patmore! The guy is an absolute saviour.

A.P.

Joseph Beller, from the very beginning when I first contacted and then retained Joseph as my representative I felt I was in good hands. When I emailed him with a question. I got a prompt response. We communicated often on the phone as needed. Joseph kept me informed as to the process. He made sure I knew all the potential results so I knew and could plan for the different outcomes. I know this his his job. But appreciate his professionalism and also his ability to not make me feel any extra stress. Well done.

N.B.
READ OUR REVIEWS
GET A FREE CONSULTATION