1. ✦THE LAW OF THEFT IN CANADA
   

What is the legal definition of Theft?

The Criminal Code of Canada defines Theft as follows:

1. 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. 1(a) 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. 2(b) to pledge it or deposit it as security;
   

3. 3(c) 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. 4(d) 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.
   

2. Time when theft completed
   (2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
   

3. Secrecy
   (3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
   

4. Purpose of taking
   (4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
   

A person is guilty of theft where the person moves an object with the intent to steal it but does not ultimately take the object.  The offence of theft is complete when a person: (a) moves an object, causes it to be movable, or begins to cause it to be moveable; and (b) has the intent to steal the object.  

What is the difference between “Theft Under” and “Theft Over”

Theft is “Theft Under” when the value of items are less than $5000.  Theft is “Theft Over” where the value of the items exceed $5000.   Section 334 of the Criminal Code reads as follows:

1. Punishment for theft
   

2. 334. Except where otherwise provided by law, every one who commits theft
   

3.         (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property            
   

4.         stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
   

5.         (b) is guilty
   

6.             (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
   

7.             (ii) of an offence punishable on summary conviction,
   

8.             where the value of what is stolen does not exceed five thousand dollars.
   

What does “breach of trust” mean as it relates to the criminal offence of theft?

Breach of trust means means that a person committed theft when they had been placed in a position of trust.  The most common example is the employee who steals from their employer.  The law treats breach of trust thefts more seriously in order to protect the victims who are vulnerable due to the trust that they had put in the perpetrator.

Jail time used to be the expected sentence for someone who was found guilty of theft involving a breach of trust.  Currently a first time offender found guilty of a relatively small theft from their employer could reasonably expect to receive a conditional discharge or, with a little effort, even a withdrawal of the charges.  Click here to read a recent case where the Crown agreed to withdraw a charge of theft involving a breach of trust for one of Mr. Gorham’s clients.

Large sophisticated thefts involving breach of trust, or involving extremely vulnerable victims will still attract jail sentences.  For example, a person who is found guilty of stealing large sums of money from an elderly person’s savings after they had been asked to help oversee the person’s finances will usually be sentenced to jail time.

What are the potential sentences for theft?

The maximum sentence for theft is 10 years in jail.  The maximum sentence is reserved for the “worst offender” and the “worst offender”.  The sentence in shoplifting theft cases is determined by the person’s background, the size of the theft, the sophistication involved in the theft plan, the defendant’s behaviour after the theft, and the lose suffered by the victim of the theft. 

In many cases the Crown will withdraw the charge if the defendant takes the appropriate proactive steps to correct the problem and/or compensate the victim of the theft.

1. ✦EXPERIENCE
   

R. v. T.(N.)

1. T.(N.) was charged with three counts of Fraud Over $5000. Three home owners defaulted on their payments.  When the police investigated they discovered that fraudulent documents had been used to get the mortgage application and that the same mortgage broker had processed the applications.  All of the homeowners said that the documents had been given to them by the mortgage broker.  The loss to the banks was in excess of $200,000.  All charges with WITHDRAWN at the preliminary inquiry.
   

2. 
   

R. v. E.(A.)

1. The Crown alleged that E.(A.) committed Theft Under $5000 and Assault with a Weapon when he entered an apartment in the early morning and committed two home invasion robberies while the occupants of both apartments were present.  One of the alleged victims told the police that he had left his door unlocked and was shocked to see two men enter and demand his money and phone.  When he question them, E.(A.) pulled out a police style baton and violent pinned the victim to the wall by his throat.  They took money and a cell phone a left.  The second alleged victim lived a floor below the first.  He claimed that E.(A.) and his accomplice knocked on the door and then burst into the apartment demanding money.  E.(A.) claimed to have a gun in his jacket but did not pull it out.  They took money and left.  During cross examination at trial it was established that the first alleged victim was dishonest and was withholding the truth about the encounter.  It was likely that he was dealing drugs and claimed the robbery to deflect attention from the police.  The first alleged victim did not testify, provided information outside of the courtroom that called into the question the prosecution.  In the end, the trial judge found E.(A.) “NOT GUILTY” of Theft and Assault with a Weapon.
   

2. 
   

R. v. A.(H.)

1. A.(H.) was charged with Theft from her employer.  The Crown alleged that she was taking items for free while processing legitimate orders.  Theft from an employer is a breach a trust and the Crown will ordinarily not agree to withdraw the charge even where the person has never been in trouble with the police beforehand.  In this case the defence put in place an aggressive and creative strategy to demonstrate that A.(H.) was a good candidate for early withdrawal of the charge.  The strategy was successful and the Crown agree to WITHDRAW the charge.
   

2. 
   

R. v. C.(A.)

1. The Crown alleged that C.(A.) was attending underground garages and stealing catalytic converters. They had video surveillance of the perpetrator driving into underground parking lots and cutting converters  off of mufflers.   At trial the defence successfully argued that the Crown had failed to prove that C.(A.) was the perpetrator.  C.(A.) was found “NOT GUILTY” of all counts of Theft.
   

2. 
   

R. v. H.(R.)

1. H.(R.) was charged with Possession of Stolen Property x 2.
   

2. The police attended at a residential home in response to a call regarding flooding.  When they arrived the did not find anyone at home.  They did see two cars in the garage and they ran the licence plates.  Both cars were stolen.  As a result of that information they sought a search warrant for the house.  The house was empty but they found H’s clothing identification and car keys.  Following his arrest H. admitted to knowing that the car were parked in his car garage.  He gave the police a detailed explanation about an associate of his who had asked to store them in the garage after supposedly purchasing them in an auction.  The charges were WITHDRAWN on the morning of trial. 
   

R. v. C.(S.)

1. C.(S.) was charged with Five counts of Fraud Over $5000. The Crown alleged that C.(S.) was purchasing large quantities of building supplies using forged money orders.  All charges were WITHDRAWN before trial. 
   

R. v. A.(I.)

1. A.(I.) was charged with Theft under.  A security officer in an LCBO claimed to see A.(I.) put two bottles of rum inside of her jacket and then leave the store without paying.  She was watching the events through the in store surveillance system. The Crown agreed to WITHDRAW the charge on the morning of trial because the police failed to disclose the surveillance video.
   

R. v. G.(W.)

1. G.(W.) was charged with Fraud Over $5000.  The Crown alleged that G.(W.) attempted to purchase as 28 million dollar home under a false identity. The trial judge found G.(W.) “NOT GUILTY” of Fraud Over $5000.
   

R. v. D.(S)

1. D.(S.) was charged with Fraud Over $5000, Possession of Forged Documents.  After her boyfriend was arrested for attempted to steal a small quantity of merchandise from a store, D.(S) was searched by the police.  They discovered forged credit cards.  The Crown agreed to WITHDRAW the charges at the preliminary inquiry in exchange for 15 hrs of community service.
   

R. v. S.(C)

1. S.(C.) was charged with Fraud Over $5000.
   

2. The case:   S.(C) acted as a mortgage broker to obtain a mortgage using falsified documents.  The purchaser defaulted on their payments and the situation was reported to the police.  The Crown agreed to WITHDRAW the charges in exchange for restitution.
   

R. v. M.(M.)

1. M.(M.) was charged with Theft Under $5000 and Possession of Stolen Property Under $5000.  M.(M.) was arrested leaving Winners with stolen merchandise under her clothing.  The Crown agreed to WITHDRAW the charges in exchange for a peace bond.
   

R. v. R.(M.)

1. R.(M.) was charged with Theft Over $5000, Break and Enter, and Possession of Stolen Property Over $5000.  The police found several stolen scooters in a shed on R.(M.)’s property.  Witnesses testified that they saw R.(M.) riding them and then putting them in the shed.   The trial judge found R.(M.) “NOT GUILTY” because the Crown failed to prove that the scooters were the stolen scooters.

1. ✦CONTACT
   

tel: 416.410.4814

fax: 416.598.3384

office: 416.598.1811

36 Lombard Street, Suite 100

Toronto, ON, M5C 2X3

gorham@criminaltriallawyers.ca

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