Most of us are familiar with the basic concept of theft, which is taking something that you do not own, or have a legal right to use. To clear up a few common misconceptions, first, theft requires intention; accidentally leaving a store without paying for the item that is stuck in the bottom of your cart is not theft. Second, having a legal right means that while you may not own the item outright, you have some claim to it, such as a lease. Third, for the purposes of the Criminal Code, animals kept as pets or livestock are property and if stolen, the crime is theft. The offence focuses on the intentional deprivation of property belonging to another.
We typically think of theft as permanently taking something that does not belong to us, but according to the Criminal Code, theft can occur in other ways. Temporarily taking something, even if you return it in pristine condition is theft because the true owner is unable to use it for a period. If you pledge or deposit an item that does not belong to you as collateral or security, that is also form of taking what is not legally yours. The Criminal Code defines theft broadly, capturing both permanent and temporary deprivation of property.
There can be circumstances where theft occurs even if the owner initially gives permission to take an item. An owner may be willing to lend out or part with an item temporarily, but if the item is broken or damaged beyond repair while the borrower or holder has it, this may give rise to criminal liability for theft. Additionally, if there are requirements that the owner must comply with in order to get his or her property back, it must be actually possible for the owner to meet the conditions. Whether the conduct amounts to theft depends on the surrounding circumstances and the accused’s intent at the time.
The punishment for theft depends primarily on the value of the property:
- Theft Over $5,000 is an indictable offence punishable by up to 10 years imprisonment.
- Theft Under $5,000 may proceed summarily or by indictment and carries a maximum penalty of up to 2 years imprisonment (if prosecuted by indictment).
In addition to imprisonment, sentencing may include probation, restitution orders, and a permanent criminal record.
Procedure and Resolution
Theft charges are prosecuted in criminal court. The Crown must prove beyond a reasonable doubt that the accused intended to deprive the owner of property.
Possible outcomes may include:
- Withdrawal of charges
- Diversion programs (in appropriate cases)
- Conditional discharge
- Trial
The availability of these outcomes depends on the circumstances of the offence, prior record, and evidentiary considerations.
Defences to Theft Charges
Defences may include:
- Lack of intent
- Honest claim of right
- Identity issues
- Insufficient evidence
- Charter violations
An honest belief that one had a legal right to the property may, in appropriate circumstances, negate the intent required for theft.
There are many potential legal defences to theft charges. Each case turns on its specific facts and the available evidence. Individuals charged with theft in Toronto are advised to obtain legal counsel to assess available defences and resolution options.