Motor Vehicle Theft (Offence)
| This page was last substantively updated or reviewed January 2020. (Rev. # 96720) |
| Motor Vehicle Theft | |
|---|---|
| s. 333.1 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| Indictable Dispositions | |
| Avail. Disp. |
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| Minimum | 6 months incarceration (third or more) |
| Maximum | 10 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to motor vehicle theft are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 333.1 [motor vehicle theft] | Hybrid Offence(s) |  |
(* only if Crown proceeds by Indictment) |
 (under 14 years max)
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Offences under s. 333.1 [motor vehicle theft] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
- 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 |
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| s. 333.1 [motor vehicle theft] | |
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When charged under s. 333.1 [motor vehicle theft], 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.
- Fingerprints and Photos
A peace officer who charges a person under s. 333.1 [motor vehicle theft] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
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| s. 333.1 [motor vehicle theft] | |
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Offences under s. 333.1 [motor vehicle theft] 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
- Motor vehicle theft
333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable
- (a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or
- (b) on summary conviction, to imprisonment for a term of not more than two years less a day.
- Subsequent offences
(2) For the purpose of determining whether a convicted person has committed a third or subsequent offence, an offence for which the person was previously convicted is considered to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.
- Motor vehicle theft when violence used, threatened or attempted
(3) Everyone who commits theft in the commission of which violence against a person is used, threatened or attempted is, if the property stolen is a motor vehicle, guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.
- Motor vehicle theft for criminal organization
(4) Everyone who commits theft for the benefit of, at the direction of or in association with a criminal organization is, if the property stolen is a motor vehicle, guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.
2010, c. 14, s. 3; 2019, c. 25, s. 121; 2024, c. 17, s. 369.
- Possession of device for purpose of committing theft
333.2 (1) Everyone commits an offence who possesses an electronic device suitable for committing theft of a motor vehicle for the purpose of committing a motor vehicle theft offence.
- Distribution of device linked to theft
(2) Everyone commits an offence who, without lawful excuse, makes, repairs, sells, offers for sale, imports into Canada, exports from Canada, distributes or makes available an electronic device suitable for committing theft of a motor vehicle, knowing that the device has been used or is intended to be used to commit a motor vehicle theft offence.
- Punishment
(3) Everyone who commits an offence under subsection (1) or (2)
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years; or
- (b) is guilty of an offence punishable on summary conviction.
- Forfeiture
(4) If a person is convicted of an offence under subsection (1) or (2), in addition to any punishment that is imposed, the electronic device in relation to which the offence was committed may be ordered forfeited to His Majesty and may be disposed of as the Attorney General directs.
- Limitation
(5) No order of forfeiture may be made under subsection (4) in respect of any thing that is the property of a person who was not a party to the offence under subsection (1) or (2).
2024, c. 17, s. 370.
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| 333.1 | motor vehicle theft | "..., did commit theft of a motor, to wit: [particulars], contrary to section 333.1 of the Criminal Code." |
Proof of the Offence
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Proving motor vehicle theft under s. 333.1 should include:
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Interpretation of the Offence
A passenger may be convicted for possession of stolen motor vehicle if there are enough factors to determine control and knowledge.[1]
A voluntary passengers in a stolen vehicle may be found to be an abettor as their presence may have the effect of encouraging the theft.[2]
- ↑
see R v TAK, 2005 BCCA 293 (CanLII), 213 BCAC 48, per Low JA
see also Possession#Other - ↑
R v Barnhardt, 2001 BCCA 191 (CanLII), 152 CCC (3d) 480, per Fitch JA (2:1), at to 84 paras 81 to 84{{{3}}}
R v DW and TB, 2017 NSPC 13 (CanLII), per Derrick J
see also Parties to an Offence
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
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 333.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
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. 333.1 [motor vehicle theft] | summary election | 18 months incarceration |
| s. 333.1 [motor vehicle theft] | indictable election | 10 years incarceration |
Offences under s. 333.1 [motor vehicle theft] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.
- Minimum Penalties
If the offender has two prior convictions or more, and would prosecuted by indictment, the minimum penalty is 6 months jail.
- 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 |
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| s. 333.1 [motor vehicle theft] | summary election | |
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| s. 333.1 [motor vehicle theft] | indictable election | |
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For offences under s. 333.1 [motor vehicle theft], when prosecuted by summary conviction, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
Offences under s. 333.1 [motor vehicle theft] 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
Ranges
- see also: Motor Vehicle Theft (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
| Order | Conviction | Description |
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| DNA Orders | s. 333.1 [motor vehicle theft] |
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- 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. |
Record Suspensions and Pardons
Convictions under s. 333.1 [motor vehicle theft] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
See Also
- References
Related