QUICK TAKEAWAY
Theft: Section 322 of the Criminal Code makes it an offence to take property from others without their consent, unless you honestly believe it is yours. There are various theft-related charges that reflect the item allegedly stolen. The charge of robbery is closely related, though that crime always involves physical force. The maximum punishment for theft is 10 years, and life in prison for robbery.
Table of Contents:
What is Theft in Canada?
Section 322 of the Criminal Code states that it is illegal to "fraudulently and without colour of rightThe honest belief that an act is justifiable" take someone's property. It doesn't matter if your intention is to take possession of an item only temporarily from its rightful owner. The charge also encompasses the act of converting something that belongs to someone else into something that benefits you.
Types of Theft-Related Charges
Theft by Person Holding Power of Attorney
Section 331 makes it illegal to be in possession or to benefit from money, securities or property that you are controlling for someone else. This charge is typically laid against people who were given power of attorneyAuthority to act for another person in financial matters for someone who was unable to look after their own financial affairs, for whatever reason.
Motor Vehicle Theft
Section 333.1 of the Code makes it illegal to steal a motor vehicle or any description. According to the RCMP this is one of the most frequent police-reported offences in the country, costing Canadians close to $1 billion annually.
Theft, forgery, etc., of credit card
Section 342 of the Code makes it illegal to steal, forge or falsify a credit card. You can also be charged under this section if you use a forged or falsified card knowing it was illegally made or altered or if you knew a regular card had been revoked or cancelled but you used it anyway.
Robbery
Section 343 of the Code makes it illegal to commit theft while using, or threatening to use, physical force. The element of force sets robbery apart from theft, as a robber employs intimidation, force, or coercion to obtain the goods.
What is Needed to Convict
The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove that you intended to steal the item in question. For example, if you are charged with theft after a shoplifting incident, the Crown must prove that you purposely took the item from the store without paying. The Crown must also prove that you did not have consent to take the item and be able to show that it belonged to someone else.
Most Theft Charges are Hybrid Offences
Canadian courts deal with offences in two ways. A Summary convictionUsed for lesser offences is for less serious crimes such as thefts under $5,000, while an indictable offenceIndictable offences are more-serious criminal offences includes murder, sexual assault and aggravated assault. Some charges, including most types of theft, can be dealt with as a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, either a summary or indictable offence.
Penalties for Theft
Section 334 of the Code splits theft into two categories: theft over $5,000 and theft under $5,000. Theft over $5,000 is usually treated as an indictable offence, with a maximum penalty of 10 years in prison, with lesser penalties given if the charge is treated as a summary conviction.
If the Crown treats a charge of theft under $5,000 as an indictable offence, the maximum penalty is two years behind bars, or less if treated as a summary conviction. The same penalties apply to the charge of theft by a person holding power of attorney. If you are convicted of stealing a motor vehicle as an indictable offence, the maximum punishment is 10 years in prison. If the charge is treated as a summary conviction, the maximum punishment is two years less a day in jail.
Theft, forgery, etc., of a credit card is always an indictable offence with a maximum sentence term of 10 years, with lesser penalties if the charge is treated as a summary conviction.
Robbery is always treated as an indictable offence. If a firearm was used, the maximum sentence is life in prison.
November 17, 2022
Update: Bill C-5: Mandatory Minimum Penalties Repealed.
Insights from a
Defence Lawyer
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Insights from Ottawa Lawyer, Céline Dostaler
Defences Against Theft Charges
If you are facing theft charges, your defense will depend on the circumstances and evidence. Some factors that can influence the outcome include your criminal record, the value of the stolen property, if a position of trust was violated, and if you have made restitution or expressed remorse. Some common defenses include lack of mental intention, belief that you had the right to possess the item, unclear identification, claiming ownership of the item, being under duress, and police misconduct in gathering evidence. An experienced criminal lawyer can help you navigate these defenses and build the strongest case possible.
Glossary of Legal Terms
Colour of right
A defence to certain charges, it is the honest belief that an act is justifiable. In cases of theft, it refers to an honest belief or mistake regarding the ownership of property.
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Power of attorney
A legal document giving one person, or more than one person, the authority to manage your money and property on your behalf. In most of Canada the person you appoint is called an “attorney.” That person does not need to be a lawyer.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
