What are my defences against theft charges?

If you have been charged with theft, your best defence always depends on the circumstances and the evidence. If you have been charged with theft under $5,000 and this is your first offence, I may be able to convince the Crown to drop the charge in exchange for you paying restitution or completing a diversion program, leaving you with no criminal record.

Factors the court will consider

With any theft charge, there are a number of factors that will influence the sentencing if you are convicted. Those include:

  • if you have a criminal record;

  • the length of time the theft has been going on;

  • the dollar value of the property stolen;

  • if a position of trust was violated;

  • whether restitution been made; and

  • if you accept responsibility for your actions and are remorseful.

There are a variety of defences that can be mounted with theft charges, but here are the common ones.

You lacked mental intent

A common defence to a theft charge is to show that you did not have the required mental intention to commit the offence, known in legal circles as mens rea. While you may have taken the items in question, it’s also possible that it was an accident. Maybe you were distracted and walked out of a store with an item without paying for it. Or perhaps you put something in your pocket to carry to the cash register, but then forget it was there.

You had the colour of right

Section 322 (1) of the Criminal Code states that “Everyone 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.”

Colour of right refers to an incident where you took something from someone with the belief that you had the right to possess it. For example, if you believed someone lent or gave you something but they instead believe you stole it from them – leading to a police investigation and a theft charge – you must prove that you honestly and reasonably believed the item was given or lent. This defence does not apply if you took the goods without consent to clear an outstanding debt with someone else.

Identity has not been established

In some cases of theft, the Crown will present video evidence, especially with shoplifting or in cases where a worker is accused of stealing from their employer. If the footage is unclear and low-quality, I may be able to argue that it does not firmly identify you as the person committing the theft. Identity is one of the key things the Crown must prove with any theft charge, so if there is any doubt about who is shown in surveillance video or pictures, the charge could be dropped.

You had title for the item

An essential element the Crown has to prove with theft is that you took something belonging to someone else. But there are incidents where people have been charged with theft for stealing an item they claim is theirs. An example would be if you break into an impound lot and take your car without paying the impound and legal fees. This defence would not hold up in this case, if the vehicle was legally towed and impounded.

You were under duress

The defence of duress is recognized in both the Criminal Code and common law. Duress applies in circumstances where the accused has committed a criminal act, but effectively did so involuntarily because they were pressured or coerced. Section 17 of the Criminal Code reads in part: “A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.”

This defence was used successfully in a 2009 provincial court case in New Brunswick, involving a man accused in the theft of four cars from dealerships. According to the judgment, he told police he was acting under the instruction of another man that he feared, and he was concerned about the safety of his family, since his son owed the man $10,000 due to his drug habits.

In finding the man not guilty due to duress, the judge explained the “defence of duress for a party to an offence … has long been recognized at common law in Canada … the common law defence of duress provides an ‘excuse’ as well as a complete bar to conviction for the offence. An excuse concedes that the act is wrongful but withholds criminal attribution to the actor. The notion of moral involuntariness prevents criminal liability from being attributed to the wrongdoer because although he admits to being a party to the offence he is nevertheless relieved of liability due to the dire circumstances surrounding its commission. An individual should not be found criminally responsible for his actions if he was acting in response to a threat of impending harm.”

Did the police overstep their boundaries?

When investigating theft charges, the police must abide by strict rules when it comes to obtaining evidence. As an experienced criminal lawyer, I can examine the Crown’s evidence and determine if investigators took inappropriate actions in gathering evidence.

For example, a news report notes that months after police unveiled a massive bust at an alleged illegal casino at a sprawling mansion in Markham, Ont., charges were withdrawn against a central figure after it was alleged that police planted evidence and stole watches worth hundreds of thousands of dollars from his bedroom. The watches appear on a video when the police first entered the bedroom, but are not there in a later video, the story states.

After those irregularities came to light, the Crown withdrew all charges against the mansion owner and agreed to a common law peace bond.

It doesn’t matter if you returned the stolen item

If you return stolen merchandise or repay someone to compensate for their loss, that will not lead to the revocation of theft charges. However, such actions will be considered mitigating factors at trial, which can lead to either a lesser offence or having the charges being dropped altogether. 

Many theft charges are dropped

According to a 2019 news report, “people accused of petty crimes like shoplifting, minor assault and fraud are walking free — because the justice system doesn't have time to deal with their cases, as it struggles to move more serious crimes through the courts.”

The story states prosecutors are focusing on major crimes such as homicide and sexual assault because of what's known as the Jordan decision, wherein the Supreme Court of Canada found the drug convictions had to be set aside because of an unreasonable delay.

The court set down new rules for unreasonable delays, stating that an 18-month was unreasonable for a provincial court and 30 months for superior courts.

Conditional sentence for theft over $5,000

A former night manager of a hotel in Barrie, Ont., was given a six-month conditional sentence and ordered to pay back the $50,000 stolen from his employer, according to a new report.

The man told the court he was “deeply regretful for what has happened … I really would like to make amends for this,” the story states. He explained that he made 251 fraudulent transactions through the hotel’s debit machine, taking a total of $50,368.38. 

The Crown attorney agreed to the conditional sentence, “in light of the number of crushing pressures on the criminal justice system right now,” according to the report, adding the man suffered mental health issues and was diagnosed with bipolar disorder after being questioned about the missing funds.

The judge in the case noted that “Usually, these kinds of offences often result in jail,” the story states, but that a conditional sentence was appropriate “given the lack of a criminal record and the early guilty plea.”

Prison, million-dollar fine for maple syrup theft

A man described as the ringleader in a theft or more than 9,500 barrels of maple syrup – valued at $18 million – from a Quebec warehouse was sentenced to eight years in prison and ordered to pay $10 million in fines and compensation within 10 years because the stolen goods couldn’t be recovered, according to a news report.

An appeal court later ruled that fine was excessive and lowered it to $1 million, the report states, with the decision to be challenged at the Supreme Court of Canada. The story adds that more than 20 people were arrested in connection with the theft, with three charged, and the man could see his sentence extended if the fine is not paid.

Why you need my help

The maximum penalty for theft under $5,000 is two years less a day in jail. With theft over that amount, the maximum penalty rises to 10 years in prison. If you have been charged with theft, contact me for a free consultation so we can determine your best defence. I will be the only person you will deal with, either in French or English.

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