Theft (Offence)

• < Criminal Law/Sentencing
• < Offences

Theft
s. 322 and 334(a), (b) of the Crim. Code
Election / Plea
Crown Election	Hybrid / Indictable summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Varies
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)* (* varies)
Minimum	None
Maximum	2 years incarceration (under) 10 years incarceration (over)
Reference
Offence Elements Sentence Digests

Overview

Offences relating to theft are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Template:PleadingsIndictableListTemplate:PleadingsIndictableList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 334(a) [theft over $5,000] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 334(b) [$5,000 or less except cattle] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge. There is however a Crown election.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 334(a)	Template:ReleaseProfileOnlyBail
s. 334(b)	Template:ReleaseProfileAll

When charged under s. 334(b), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

{IDCriminalAct|s. 334(a) and (b)}}

Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 334 are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Theft
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.
Secrecy
(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.
...
R.S., c. C-34, s. 283.

– CCC

Punishment for theft
334. Except where otherwise provided by law, every one who commits theft

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or

(b) is guilty

(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction,

where the value of what is stolen does not exceed five thousand dollars.
R.S., 1985, c. C-46, s. 334; R.S., 1985, c. 27 (1st Supp.), s. 43; 1994, c. 44, s. 20.

– CCC

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.

– CCC

Proof of the Offence

Generally

Proving theft under s. 322 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit "takes, or ... converts to his use or to the use of another person" anything; the culprit does the prohibited conduct with the intent: 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; to pledge it or deposit it as security; 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 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. property was owned by someone (use witness or documents under ss. 491.2 and 657.1) value of the property (either over $5,000 in value or equal or under $5,000) continuity of the property file photo of property or actual property as exhibits (s. 491.2) the culprit took or converted property the owner did not give permission for the accused to take or convert it the prohibited conduct was done "fraudulently and without colour of right". Proving theft of testamentary instrument under s. 322 should include: the underlying elements of theft under s. 322; and the subject matter of the theft is a testamentary instrument.

Shoplifting

In a case of shoplifting, Proving theft should include, in addition to the general elements of proof: 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

Interpretation of the Offence

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.

Theft can occur where the accused is given money for one known purpose and intentionally uses the money for another purpose.

Returning the item stolen can still amount to a theft.

The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.

Steal and Theft

s. 2
...
"steal" means to commit theft;
...

– CCC

Fraudulently

"Fraudulently" refers to the "knowledge that the thing taken is the property of another person."

"Colour of Right"

• Colour of Right

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:

1. be property of some sort
2. property capable of being
   1. taken or
   2. converted
3. 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. Nor can computer data.

Ownership of Wild Creatures

Theft
322 (1) ...
Wild living creature
(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.
R.S., c. C-34, s. 283.

Misc Issues of Proof

• s. 491.2(1) -- photographic evidence
• s. 657.1(1) -- Proof of ownership and value of property

Special Exceptions to Evidence

Evidence
359 (1) Where an accused is charged with an offence under section 342 or 354 or paragraph 356(1)(b), evidence is admissible at any stage of the proceedings to show that property other than the property that is the subject-matter of the proceedings

(a) was found in the possession of the accused, and

(b) was stolen within twelve months before the proceedings were commenced,

and that evidence may be considered for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was stolen property.
Notice to accused
(2) Subsection (1) does not apply unless

(a) at least three days notice in writing is given to the accused that in the proceedings it is intended to prove that property other than the property that is the subject-matter of the proceedings was found in his possession; and

(b) the notice sets out the nature or description of the property and describes the person from whom it is alleged to have been stolen.

R.S., 1985, c. C-46, s. 359; R.S., 1985, c. 27 (1st Supp.), s. 51.

Evidence of previous conviction
360 (1) Where an accused is charged with an offence under section 354 or paragraph 356(1)(b) and evidence is adduced that the subject-matter of the proceedings was found in his possession, evidence that the accused was, within five years before the proceedings were commenced, convicted of an offence involving theft or an offence under section 354 is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was unlawfully obtained.
Notice to accused
(2) Subsection (1) does not apply unless at least three days notice in writing is given to the accused that in the proceedings it is intended to prove the previous conviction.
R.S., c. C-34, s. 318.

Defences

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)

Participation of Third Parties

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 334(a) [value exceeding $5,000 or a testamentary instrument]	N/A	10 years custody
s. 334(b) [value not exceeding $5,000]	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 334(b) [value not exceeding $5,000]	Indictable Election	5 years custody

Offences under s. 334(a) [value exceeding $5,000 or a testamentary instrument] are straight indictable. The maximum penalty is 10 years incarceration.

Offences under s. 334(b) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 334(b) [value not exceeding $5,000]	any
s. 334(a) [value exceeding $5,000 or a testamentary instrument]	N/A

Offences under s. 334(a) are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

A common offence in most provincial courts. The range of sentences for low end offences range from discharges for first time offenders, fines ($100 to 400), suspended sentence with probation, or short and sharp periods of imprisonment where there is a prior related criminal record.

Employee Theft

The goals of denunciation and deterrence require that absent exceptional circumstances, the sentence should include imprisonment.

Offences involving theft of large amounts from an employer by an employee will usually result in a sentence of incarceration. Where exceptional circumstances exist, a conditional sentence may be appropriate.

Theft of money by person who are entrusted with it in the course of his employment amounts to a abuse of trust within the meaning of s. 718.2(a)(iii).

Shoplifting

Shoplift offences have been called "low level crimes of opportunity".

In most cases of shoplifting, without a prior record, the court will order discharges, suspended sentences or fines.

Factors

Aggravating Factors

• criminal record for similar offences
• breach of trust
• lack of recovery of items
• inability to compensate owner

Other Factors

• history of alcohol or substance abuse

Ranges

see also: Theft (Sentencing Cases)

In Newfoundland and Labrador, the range of sentence of retail thefts under $5,000 (ie. shoplifting) will vary between a discharge to "several months to a year" where there is a previous related record.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 334(a)	For conviction under s. 334(a), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

See Also

• UK Sentencing Guidelines

Offences

• Motor Vehicle Theft (Offence)

References

• Pre-Trial and Trial Motions Checklist

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)