Theft Under/Over $5,000
Theft Under/Over $5000
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Theft is addressed in Part IX of the Criminal Code, under s. 322(1), relating to “Offences Against Rights of Property.” Theft occurs when someone intentionally takes property belonging to another without permission, with the intent to permanently or temporarily deprive the owner of it.
According to s. 2 of the Criminal Code, to "steal" means to commit theft.
The law distinguishes between two types of theft based on the value of the stolen property:
- Theft under $5,000: Generally treated as a less serious offence, often prosecuted as a summary conviction, which carries lighter penalties, such as fines or shorter imprisonment.
- Theft over $5,000: Considered a more serious crime and typically prosecuted as an indictable offence, which carries harsher penalties, including longer imprisonment.
Additionally, there are specific categories of theft, such as:
- Theft of a motor vehicle under s. 333.1(1) of the Code.
- Theft and forgery of a credit card, covered under s. 342 of the Code.
- Identity theft, covered under s. 402.2 and s. 403 of the Code.
It’s important to note that confidential information and computer data cannot be the subject of a "theft" charge as the owner is "not deprived of the subject" (R v Cisar, 2014 ONCA 151).
If violence or the threat of violence accompanies the theft, the offence is categorized as Robbery under s. 343 of the Criminal Code.
How Serious is the Offence?
Theft under s. 322(1) is a hybrid offence. This means that the Crown can choose to proceed either by indictment or summarily, depending on the facts and circumstances of the case.
A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.
Examples of the Offence
Theft can occur in various forms, such as:
- Shoplifting
- Pickpocketing, or stealing phones, wallets, or other items directly from a person.
- Theft from a vehicle, or stealing vehicle parts.
- Employee theft
- Service theft, such as dining and dashing.
- Taking funds when the accused knows they were issued by mistake (R v Milne, [1992] 1 SCR 697).
Elements of the Offence
The Guilty Act (Actus Reus)
Theft involves fraudulently taking something—whether animate or inanimate—without colour of right (i.e., without a legal justification or excuse).
The Guilty Mind (Mens Rea)
To be guilty of theft, the accused must have the intent to:
- Deprive the owner of the property (temporarily or permanently).
- Pledge it as security.
- Return it in poor or unusable condition.
- Deal with it in a manner such that it cannot be restored to its original condition.
In a theft case, the Crown must prove that the accused specifically intended to deprive the owner of their property (R v LaFrance, 1973 CanLII 35 (SCC)).
The term "fraudulently" refers to the knowledge that the item belonged to someone else (R v LaFrance, 1973 CanLII 35 (SCC)). Merely picking up the item with the intent to steal is sufficient to complete the offence (R v Adams, 2012 CanLII 40909 (NL PC)).
Possible Defences
- Proof of Payment: Showing that the accused paid for the property.
- Proof of Permission: Demonstrating that the accused was given the property.
- Honest but Mistaken Belief: Proving the accused genuinely believed the property was theirs. For example, taking a friend’s car, mistakenly believing they were lending it, could support this defence.
- Forgetfulness: Proving that the accused forgot they were in possession of the property (honest but mistaken belief).
- Applicable Charter Arguments: The Charter outlines your rights and freedoms both before and after an arrest. If police officers do not adhere to these rights, whether intentionally or unintentionally, this may support your defence. Should there be any violations of your Charter rights surrounding your arrest, it may be possible to have some or all of the evidence that the prosecution intends to use excluded.
Possible Punishment If Convicted
- Theft Over the Amount of $5,000:
- If proceeded summarily: Up to two years less a day imprisonment.
- If proceeded by indictment: Up to 10 years imprisonment.
- Theft Under or Equal to the Amount of $5,000:
- If proceeded summarily: Up to two years less a day imprisonment.
- If proceeded by indictment: Up to two years less a day imprisonment.
Theft Under/Over $5000
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Theft is addressed in Part IX of the Criminal Code, under s. 322(1), relating to “Offences Against Rights of Property.” Theft occurs when someone intentionally takes property belonging to another without permission, with the intent to permanently or temporarily deprive the owner of it.
According to s. 2 of the Criminal Code, to "steal" means to commit theft.
The law distinguishes between two types of theft based on the value of the stolen property:
- Theft under $5,000: Generally treated as a less serious offence, often prosecuted as a summary conviction, which carries lighter penalties, such as fines or shorter imprisonment.
- Theft over $5,000: Considered a more serious crime and typically prosecuted as an indictable offence, which carries harsher penalties, including longer imprisonment.
Additionally, there are specific categories of theft, such as:
- Theft of a motor vehicle under s. 333.1(1) of the Code.
- Theft and forgery of a credit card, covered under s. 342 of the Code.
- Identity theft, covered under s. 402.2 and s. 403 of the Code.
It’s important to note that confidential information and computer data cannot be the subject of a "theft" charge as the owner is "not deprived of the subject" (R v Cisar, 2014 ONCA 151).
If violence or the threat of violence accompanies the theft, the offence is categorized as Robbery under s. 343 of the Criminal Code.
How Serious is the Offence?
Theft under s. 322(1) is a hybrid offence. This means that the Crown can choose to proceed either by indictment or summarily, depending on the facts and circumstances of the case.
A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.
Examples of the Offence
Theft can occur in various forms, such as:
- Shoplifting
- Pickpocketing, or stealing phones, wallets, or other items directly from a person.
- Theft from a vehicle, or stealing vehicle parts.
- Employee theft
- Service theft, such as dining and dashing.
- Taking funds when the accused knows they were issued by mistake (R v Milne, [1992] 1 SCR 697).
Elements of the Offence
The Guilty Act (Actus Reus)
Theft involves fraudulently taking something—whether animate or inanimate—without colour of right (i.e., without a legal justification or excuse).
The Guilty Mind (Mens Rea)
To be guilty of theft, the accused must have the intent to:
- Deprive the owner of the property (temporarily or permanently).
- Pledge it as security.
- Return it in poor or unusable condition.
- Deal with it in a manner such that it cannot be restored to its original condition.
In a theft case, the Crown must prove that the accused specifically intended to deprive the owner of their property (R v LaFrance, 1973 CanLII 35 (SCC)).
The term "fraudulently" refers to the knowledge that the item belonged to someone else (R v LaFrance, 1973 CanLII 35 (SCC)). Merely picking up the item with the intent to steal is sufficient to complete the offence (R v Adams, 2012 CanLII 40909 (NL PC)).
Possible Defences
- Proof of Payment: Showing that the accused paid for the property.
- Proof of Permission: Demonstrating that the accused was given the property.
- Honest but Mistaken Belief: Proving the accused genuinely believed the property was theirs. For example, taking a friend’s car, mistakenly believing they were lending it, could support this defence.
- Forgetfulness: Proving that the accused forgot they were in possession of the property (honest but mistaken belief).
- Applicable Charter Arguments: The Charter outlines your rights and freedoms both before and after an arrest. If police officers do not adhere to these rights, whether intentionally or unintentionally, this may support your defence. Should there be any violations of your Charter rights surrounding your arrest, it may be possible to have some or all of the evidence that the prosecution intends to use excluded.
Possible Punishment If Convicted
- Theft Over the Amount of $5,000:
- If proceeded summarily: Up to two years less a day imprisonment.
- If proceeded by indictment: Up to 10 years imprisonment.
- Theft Under or Equal to the Amount of $5,000:
- If proceeded summarily: Up to two years less a day imprisonment.
- If proceeded by indictment: Up to two years less a day imprisonment.
