The Crime of Theft

As a criminal lawyer based in Windsor, Ontario, Christina Loebach helps persons charged with Canadian criminal offences. This blog post considers one of the more common criminal charges that people may face - Theft.

Theft - What Does it Mean?

As a general statement, the act of theft occurs when you take another person’s property without permission or entitlement to do so. Per s. 322(1) of the Criminal Code,

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

1. 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;

2. To pledge it or deposit it as security;

3. 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

4. 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.

Theft happens the moment a person attempts to “move” an item into their possession that is not theirs. When taking another’s property, the individual must have had the intent to:

• Not give it back to the owner;

• Use the item as security;

• Take the item from the owner without being able to return it in the same condition; or

• Take the item from the owner and destroy it, making it unusable.

Petty Theft

Canadian criminal law does not have an official crime of “petty theft”. The two main categories of theft in Canada are theft under $5,000 and theft over $5,000. 

Even if the value of the stolen item is only $1, it is still considered theft and you will be charged with theft under $5,000. That being said, the value of the item is one factor that both the Crown and the judge will take into consideration when assessing your case.

Punishment for Theft Under $5,000

The punishment for theft under $5,000 is covered under s. 334(b) of the Criminal Code, and is considered a hybrid offence. This means that the prosecutor has the option to treat it as either a serious charge (indictable offence) or a less serious charge (summary offence). Whether it proceeds by indictable or as a summary offence is going to be fact-dependent. 

If it proceeds by way of indictment, the maximum penalty is a term of imprisonment not exceeding two (2) years. If the Crown proceeds summarily, the maximum punishment is six (6) months in a provincial jail.

Punishment for Theft over $5,000

The punishment for theft over $5,000 is detailed in s. 334(a) of the Code. It is also considered a hybrid offence for which the Crown may elect how to proceed. If the Crown proceeds by way of indictment, the maximum penalty is imprisonment for a term of not more than 10 years. If the Crown proceeds summarily, the maximum penalty is 2 years less a day imprisonment.

Immigration Consequences of a Theft Conviction

Under section 36(3) of the IRPA, all hybrid offences are treated as indictable offences, even if the Crown elects to prosecute the offence summarily. Therefore, a conviction for theft may result in collateral immigration consequences.

For a recap on the concept of inadmissibility based on criminality, check out this previous blog post. For a summary of the concept of inadmissibility based on serious criminality, read this blog post. As a reminder, temporary residents may be inadmissible based on criminality or serious criminality, whereas permanent residents may be inadmissible based on serious criminality only.

In addition to theft over $5,000, convictions for the following theft offences or offences that resemble theft may result in inadmissibility due to serious criminality:

• Theft, forgery, etc. of credit card (s. 342(1));

• Unauthorized use of credit card data (s. 342(3));

• Destroying documents of title (s. 340);

• Criminal breach of trust (s. 336);

• Theft of cattle (s. 338(2));

• Motor vehicle theft (s. 333.1(1));

• Motor vehicle theft when violence is used, threatened or attempted (s. 333.1(3));

• Motor vehicle theft for criminal organization (s. 333.1(4)); 

• Possession of device for purpose of committing theft (s. 333.2(1));

• Distribution of device linked to theft (s. 333.2(2));

• Instruments for copying credit card data or forging or falsifying credit cards (s. 342.01(1));

• Unauthorized use of computer (s. 342.1(1));

In addition to theft under $5,000, convictions for the following theft offences or offences that resemble theft may result in inadmissibility due to serious criminality:

• Possession of device to obtain use of telecommunication facility or service;

• Taking motor vehicle or vessel or found therein without consent;

• Taking possession, etc., of drift lumber;

• Dealer in second-hand goods;

• Fraudulent concealment;

• Possession of device to obtain unauthorized use of computer system or to commit mischief.

Having a criminal record may have a serious and lasting impact on many aspects of your life, including but not limited to employment, travel, immigration, and renting a home. If you are dealing with criminal charges for theft, schedule a consultation with Christina.