Theft is the act of taking something that does not belong to you without the permission of the owner of the property for the benefit of a person other than the owner (i.e. yourself or another individual). Theft offences can be found under section 322 to 334 of the Criminal Code.

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 to:

(1) deprive the owner of the thing or anyone with interest in the thing,

(2)  pledge or deposit the thing as security,

(3)  part with it under a condition with respect to its return that the person who part with it may be unable to perform,

(4)  deal with the thing in such a manner that it cannot be restored to the condition it was in when it was taken or converted.

The use of the word “anything” includes both tangibles and intangibles. A property is captured under “theft” so long as it is capable of proprietary rights and is capable of being taken or converted in a manner that will deprive the owner of the property or interest in the property.

The burden for theft offences rests with the Crown. The Crown prosecutor must establish the elements of the offence beyond a reasonable doubt. There is a degree of knowledge that is required for a theft offence. Specifically, the Crown prosecutor must not only prove that the property was stolen by the accused but they must also show that the accused had knowledge that the property belonged to someone else.


Theft offences are defendable. The available defences will depend on the circumstances of the theft.


A strong defence that is available in certain circumstances is “colour of right”. This defence is based on the idea that the accused actually had the right to possess the property they are accused of stealing. A colour of right defence can apply when the accused paid for the property or if the former owner gave the accused the property. In both instances, colour of right is a question of fact that is supported by evidence.


“Honest but mistaken belief” is another defence available to those charged with a theft offence. To use this defence, the accused must show that they mistakenly believed that the property was theirs, or that they forgot they were in possession of the property. This defence is also a question of fact that requires evidence to support it.


Repayment or return of stolen property is not a defence to a charge of theft. However, in some cases the repayment or return of the stolen property may be considered a mitigating factor with respect to sentencing. Such an action, may aid in reducing the penalty ordered by the court. A experienced lawyer will be able to determine whether the repayment or return of property is beneficial in your circumstances.

Call Sack (Q.C.) and Bogle Law today to understand you options.


Theft Under $5000 is a hybrid offence. If the Crown proceeds by way of an indictment, the maximum penalty is two years’ imprisonment. If the Crown proceeds summarily, the maximum sentence is six months imprisonment. A charge of Theft Under $5000 can be resolved without serving any jail time or payment of a fine. Accordingly, it is very important to get legal advice or representation when charged with this offence. A qualified lawyer can provide you with your best options.

Theft Over $5000 is a serious offence and is always prosecuted by way of an indictment. The maximum sentence on conviction for Theft Over $5000 is 10 years’ imprisonment.

In less serious circumstances of theft, the Crown might be willing to divert the charge out of the court system. If an accused is eligible for the diversion program, the Crown may withdraw the charges following the completion of the program. The program is made up of various tasks (i.e. watching a video on shoplifting, requirement to make a charitable donation, community service work etc.). Once the program is completed, the Crown will recommend to the court that the charge of theft be withdrawn against the accused.

If you or someone you know has been charged with a theft or property offence, contact Sack (Q.C.) and Bogle Law today for assistance. The experienced lawyers at our office can help you understand your options and guide you through the complex legal system.