Canadian Criminal Law/Offences/Theft
|s. 322 of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid (Under) |
|Maximum||6 months jail or $5,000 fine (<=$5,000)|
|Maximum||10 years (over $5,000)|
2 years (<= $5,000)
|Offence Elements |
The Criminal Code defines theft as follows:
322. (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.
Time when theft completed
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
Purpose of taking
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
Theft and possession
657.2 (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused, and in the absence of evidence to the contrary is proof that the property was stolen.
Accessory after the fact
(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.
Proof of Offence
The Crown will typically prove the following:
- identity of accused
- date and time of incident
- jurisdiction (incl. region and province)
- property was owned by someone (use witness or documents under ss. 491.2 and 657.1)
- value of the property
- continuity of the property
- file photo of property or actual property as exhibits (s. 491.2)
- accused took or converted property
- the owner did not give permission for the accused to take or convert it
- the items were not given to the accused in good faith (no colour of right)
- the accused intended to deprive the owner of the property
In a case of shoplifting the Crown will typically prove, in addition to the general elements of proof, the following:
- That the accused did not pay for items or make attempt to pay.
- That the accused did not have money to pay for the items.
- Whether the accused had property in possession at time of arrest.
- see R v Parkes, 2012 SKQB 164 at 40
In a theft case the crown must prove a specific intent of the accused to deprive its owner of the property.
The offence of theft when in the context of shop-lifting is complete even before the accused leaves the store. By picking up the item with the requisite intent to steal is sufficient to make out the offence in its entirety.
Colour of Right
This is an honest belief on the part of the accused that they had a right to possess the property, despite that there was no true basis for the belief in fact or law. This does not include mere belief in a moral entitlement to the property
Subject Matter of Theft
The provision states that "anything" can be the subject of theft. This term was interpreted broadly as including both tangibles and intangibles. The subject of theft must be:
- be property of some sort
- property capable of being
- taken or
- taken or converted in a way that the owner is deprived of the property in some way.
Confidential information cannot be the subject of theft as the owner is not deprived of the subject.
- see R. v. LaFrance, 1973 CanLII 35 (SCC),  2 S.C.R. 201
- eg. R. v. Beales, 2012 CanLII 582 (NL PC) at 20 to 22
- R. v. Howson 1966, 3 CCC 348 (Ont.CA); R. v. Dorosh 2004, 183 CCC 224 (Sask. CA)
- R. v. Hardimon (1979), NSR 232 (NSCA)
- R v Stewart,  1 SCR 963, 1988 CanLII 86 at para 41
R. v. Alexander, 2006 CanLII 26480 (ON SC)
Misc Issues of Proof
- s. 491.2(1) -- photographic evidence
- s. 657.1(1) -- Proof of ownership and value of property
Typical defences will include claims such as:
- the accused paid for the property (colour of right)
- the accused was given the property (colour of right)
- the accused honestly but mistakenly believed the property was theirs (honest but mistaken belief)
- the accused forgot they were in possession of it (honest but mistaken belief)
Other Forms of Theft
Sections 323 to 333 provide for more specific instances and exclusions from theft:
- theft from oyster beds (s. 323)
- theft by bailee of things under seizure (s. 324)
- exception when agent is pledging goods (s. 325)
- theft of telecommunications service (s. 326)
- possession of device to obtain telecommunication facility or service (s. 327)
- theft by or from person having special property or interest (s. 328)
- theft by person required to account (s. 330)
- theft by person holding power of attorney (s. 331)
- misappropriation of money held under direction (s. 332)
- exception for ore taken for exploration or scientific research (s. 333)
- R v Parkes, 2012 SKQB 164 -- convicted; detailed review of the law
- R. v. Butler, 2010 CanLII 42944 (NL P.C.) -- acquitted; argued honest mistake
- R. v. Doering, 2011 ABPC 349 -- moving company refuses to give property to a store -- guilty of theft over $5000