What is theft?

Theft is the crime of simply stealing. One way to understand theft is to compare it with its cousin crimes, robbery and fraud. Robbery is the crime of stealing by using violence and fraud is the crime of stealing by using deception. In theft, there is only stealing. In Canada, theft is outlawed by section 334 of the Criminal Code. The Code creates two branches of theft in section 334: theft under (and up to) $5000 and theft over $5000.

For Crown prosecutors to prove that you committed theft, they must show beyond a reasonable doubt that:

  • You took something from someone else;
  • That you have no ownership or right to the thing taken; and
  • When taking the thing, you intended to
    • keep the item from its rightful owner forever or temporarily; or
    • use it as a security deposit; or
    • take the item under a promise or a condition with respect to its return that you could not keep, or
    • use the object in a way that will damage it in an irreparable way.
One defence to the charge of theft is that you owned title to the property in question.

In addition to theft under section 334, certain types of theft are prohibited separately. These offences are:

  • Motor vehicle theft (section 333)
  • Theft and forgery of a credit card (section 342)
    • This crime encompasses stealing, forging, or using a knowingly forged credit card, and using a credit card which you know has been cancelled.
  • Theft of telecommunications (section 326)
    • This crime encompasses stealing electricity, gas, or telecommunications services such as the Internet or cable.
  • Theft by person holding a power of attorney (section 331)
  • Misappropriation of money held under direction (section 332)

There are two things you should do when charged with theft or any criminal offence:

  • Stay silent: Your right to silence is a protected Charter In the interrogation room, you and the police have opposite goals. You want to leave and the police want to get a confession from you. The police can use almost any trick (including lying to you, scaring you, and playing “good cop-bad cop”) to make you confess. The interrogation room isn’t the time to play the uneven game of defending yourself. Stay silent.
  • Hire an attorney: A criminal lawyer is your best ally in defending theft charges. Defending theft can involve a number of strategies including negotiating with the Crown, identifying and eliminating Charter-violating evidence, and looking for defences that you can raise. Even in small theft cases, the experience and expertise of a criminal lawyer is invaluable in helping avoid prison time and a criminal record. Speaking to a lawyer at your first chance can help you better understand what options and strategies you have available to you.

To defend theft charges, we can adopt a number of strategies which include:

  • Excluding evidence that violates your Charter
    • Some of the evidence in your case may have been obtained by the police in ways that violate your rights. For example, allegedly stolen goods may have been retrieved without a warrant when one was necessary in the circumstances. You may also have been interrogated without a proper police caution regarding your rights. By identifying and excluding evidence obtained in Charter-violating ways, we make it more difficult for the prosecution to build their case.
  • Colour of right
    • Colour of right is the idea that you either had a right to the thing taken or you honestly believed that you were the rightful owner of the item in question. To raise a colour of right defence, we must show some evidence that you had an honest and good faith belief that the item in question was actually yours.
  • Lack of intent
    • For every criminal offence, Crown prosecutors must prove that you both did something bad (actus reus) and that you did it with a guilty mind (mens rea). In theft cases, one defence you can raise is to show that you lacked the intent to steal. An example of this could be accidentally forgetting to scan a single item at the self-checkout in a cart full of items that you’ve paid for. In this case, you could potentially show that you did not intend to steal the item you forgot to scan by showing that you paid for the rest.
  • Title
    • You cannot steal something that is yours to begin with. However, there are exceptions to this especially when you take something of yours that is lawfully in another’s possession. For example, if you were to take your car back from an impound lot without paying the fee, you could be liable for theft.
  • Duress
    • Section 17 of the Criminal Code creates the defence of duress. If you were threatened with the immediate threat of death or bodily harm by someone else to steal, you can raise the defence of duress against your charges of theft.
  • De minimus
    • The legal concept of de minimus is the idea that a harm is so small that it is essentially nonexistent trivial. In theft cases, a de minimis case would be someone like taking a handful of nuts from a grocery store. While a theft did occur, it was too minor for the criminal court.

The penalties for theft depend on the following circumstances:

  • Crown election
    • The Crown can choose to prosecute either by summary conviction or indictment. For summary cases, the maximum penalty is two years less a day imprisonment and up to a $5000 fine.
  • The amount of the theft
    • Thefts under and up to $5000 carry a maximum sentence of two years if prosecuted by indictment and two years less a day if prosecuted summarily.
    • Thefts over $5000 carry a maximum penalty of 10 years imprisonment

A judge may impose other penalties such as forfeiture orders and restitution orders. In cases of petty theft, sentencing can also include a discharge (a finding of guilt without recording a conviction), a suspended sentence (probation), or a conditional sentence (house arrest).

How can our firm help?

Lakin Afolabi Law is a multilingual, empathetic firm that exclusively practices criminal defence. We have over a decade of experience successfully defending criminal charges, including theft. At Lakin Afolabi Law, our approach is unique. From our first consultation on, you play an active role in guiding our strategy. We know the law and you know the facts. Contact us today for a consultation to see how we can help.

Remaining silent when arrested is one of the best things you can do when charged with theft.

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