Theft Laws in Canada

Theft is a type of non-violent property offence that covers a variety of illegal acts, including shoplifting or taking the personal property of a friend, family member or stranger without consent.

Theft is covered under s. 322(1) of the Criminal Code of Canada (the “Code”) and is generally divided into two categories:

• Theft over $5,000; and
• Theft under $5,000.

There are also special categories of theft such as motor vehicle theft under section 333.1(1) of the Code.

Although the rate of theft seemed to drop between 2019 and 2020 from 226,428 incidents in Canada to 180,504, this is largely thought to be due to the COVID-19 pandemic when more people were at home. 2021 numbers already indicate theft numbers are back on the rise and this is anticipated to also be reflected in 2022 statistics.

Theft Overview Video

Theft Defences

Every case is different. Defences that may be available in one case may not be available in another. The strength of any defence rests on the evidence against you and the precise details of the allegations.

There are many defences to theft that can be used including showing a lack of mens rea or actus reus (meaning the mental and physical elements of the offence are not made out), proving that you owned the property or colour of right (meaning you honestly believed you had a lawful right to the property when you did not).

Theft Punishment

Theft is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of punishments that you are given, with indictment being the more severe of the two.

Your chance of receiving a jail sentence for a theft charge is significantly heightened if:

• The amount of the theft was over $5,000; and/or
• The theft occurred in the course of employment, or in another trust-based relationship.

Although the Code does not provide minimum sentences.

The maximum sentences are outlined as follows:

• For theft in an amount over $5,000 the maximum penalty is:
  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.
• For theft in an amount equal to or less than $5,000:
  • Indictment: Up to 2 years less a day imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

It is important to note, that although the Crown is able to elect to proceed summarily or by indictment when the charge is theft over $5,000, it is extremely rare for them to proceed summarily meaning you can expect a significantly higher punishment for the offence.

Theft Laws in Canada Infographic

Overview of the Offence

The relevant provision for theft in the Code is:

It is critical to remember that in Canada it is your constitutionally protected right to be presumed innocent until proven guilty.

This means that the Crown must prove all elements of the offence beyond a reasonable doubt for you to be convicted. If doubt can be raised that you did not complete the physical or mental components of the offence (as described below) the Crown will not be able to secure a conviction against you.

What does the Crown need to prove for you to be found guilty of theft?

The Crown must prove beyond a reasonable doubt the physical element of a theft offence:

• Taking something whether animate or inanimate fraudulently and without colour of right.

The Crown must also prove beyond a reasonable doubt the mental element of the theft offence:

• To deprive (temporarily or absolutely) the owner of the property; or
• To pledge it as security; or
• To return it to someone in poor or unusable condition; or
• To deal with it in a manner that it cannot be restored to its condition at the time it was taken.

To provide an example, if you leave a store after purchasing a cart full of groceries and there is an item in your cart that you did not pay for however you are honestly believed that you did, the necessary mental element of the offence is not made out and the Crown will be unable to proceed with its charge.

It is critical to remember that in Canada it is your constitutionally protected right to be presumed innocent until proven guilty.

This means that the Crown must prove all elements of the offence beyond a reasonable doubt for you to be convicted. If doubt can be raised that you did not complete the physical or mental components of the offence (as described below) the Crown will not be able to secure a conviction against you.

Top 3 Theft Defences

As previously mentioned, every case is different. There is no single defence that can be applied to every allegation of theft. That said, there are numerous defences available that when used effectively can significantly and positively affect the outcome of a case.

1. You owned the property

You cannot steal what is actually yours. Therefore, if you are able to establish that you had a proprietary or possessory interest in the item, you may be able to defend yourself against the charges. Documents proving ownership of the property will likely be of significant assistance in raising this defence. However, even if you have a proprietary or possessory right in the good, if you take it from another person by fraudulent means, you could still be charged with theft in certain circumstances. For example, you could not use the proprietary interest you have in your vehicle to steal it from an impound lot without paying the fee.

2. Violation of Constitutional Rights

The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

3. No Mens Rea/Actus Reus

A common defence available in theft cases is that you did not intend to take the property. A basic example would be if you accidentally walked out of a store with an item you did not pay for.

What is the punishment for theft?

The Code outlines the maximum punishments for theft. A critical factor in your punishment is whether you have committed theft in an amount over $5,000 or an amount equal to or less than $5,000. Both offences are considered hybrid offences, meaning the Crown may decide to proceed summarily or by indictment. An indictment is the more serious of the two.

The sentence you will receive depends on a variety of factors including:

• The amount that was taken;
• The relationship between you and the alleged victim; and
• Your criminal history.

The two most significant factors that will increase your likelihood of receiving jail time include:

• If the theft was in an amount over $5,000; and
• If the theft occurred during the course of employment, or in another trust-based relationship.

Frequently Asked Questions About Theft

Is it illegal to steal in Canada?

Yes. Formally known as “theft,” section 322(1) of the Code states it is illegal to take something, temporarily or absolutely that is not yours or which you do not have consent or authority to take, pledge, alter, or deposit.

What is the punishment for theft in Canada?

The Code outlines the maximum punishments for theft. A critical factor in your punishment is whether you have committed theft in an amount over $5,000 or an amount equal to or less than $5,000. Both offences are considered hybrid offences, meaning the Crown may decide to proceed summarily or by indictment. An indictment is the more serious of the two.

For theft in an amount over $5,000 the maximum penalty is:

• Indictment: No more than 10 years imprisonment.
• Summary: Up to 2 years less a day imprisonment.

For theft in an amount equal to or less than $5,000:

• Indictment: Up to 2 years less a day imprisonment.
• Summary: Up to 2 years’ less a day imprisonment.

What is theft over $5,000?

Theft over $5,000 refers to the value of the goods you have allegedly taken without consent, or which are not yours and the total value of those goods is more than $5,000 Canadian Dollars.