Frequently Asked Questions
What is the Charge of Theft or Shoplifting?
“Colour of right” is the legal right to possess a piece of property. Section 322(1) of the Criminal Code codifies theft as when someone “fraudulently and without colour of right” takes or converts to their use or the use of another person of any thing, whether animate or inanimate, with intent to deprive the original owner of the property of the property. In addition, the intent can also be to deposit the property as a security; part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or to misuse or deal with it in such a manner that it cannot be restored to its original state. Essentially, theft is when someone takes something that does not belong to them with the intent to deprive the rightful owner.
Section 322(2) of the Criminal Code describes the precise timing of when theft is complete. The time when theft is complete is when the person moves the item or causes it to be moved or begins to cause it to become moveable.
For example, the crime of bicycle theft begins when the offender tries to undo the bike lock. In addition, the Criminal Code describes the taking or conversion of anything without the colour of right may be fraudulent regardless of whether or not there was secrecy or concealment.
What are Restitution Orders in Toronto?
Section 737.1(1) gives the court the power to make a restitution order. If an offender is convicted or discharged under section 730 (a conditional or absolute discharge), the court is required to consider making a restitution order under section 738 or 739. Restitution orders are an ancillary order the Court can enter at sentencing. The offender must pay a sum of money to the victim(s) in the case.
Before imposing sentencing, the Court must ask the Crown whether the victim(s) sought restitution from the offender. If the victim(s) did want it, the Crown would then describe the amount, which must be reasonable. An offender may need to pay restitution for incidents such as property damage, theft, or identity theft.
The order may tell the offender to pay the restitution, but it is difficult to enforce. The person seeking the restitution, if it was not received, would have to sue the offender again in the civil court. Then they would be able to get an order from the civil court to enforce the restitution order. The civil court can offer remedies such as garnishing the offender’s wages. The offender’s capabilities or ability to pay the restitution order does not factor into whether the order should be made or not.
How is Theft Different from Fraud?
Fraud is enumerated under s. 380 of the Criminal Code, a person commits fraud when they knowingly trick or deceive another person for money or other goods and services.
Theft requires the movement of property, whereas fraud refers to benefitting from deceit. Theft and fraud, though similar and often correlated, are different under the Criminal Code.
Theft is when someone moves an object or property without the consent of the owner. Theft does not require the intent to defraud, nor does it require any deception on the part of the accused, it only requires movement of the object. A person can be fully honest about the taking of property, but that is still theft if the owner did not consent to it.
Fraud is when a person, through deception or misrepresentation, deprives someone of money, property, valuable security, or any other service. To prove fraud, the Crown needs to prove beyond a reasonable doubt two things: that (1) there was an intent to defraud and (2) there was a loss suffered by the victim. Fraud requires deception, while theft does not.
The penalties for theft and fraud are also different. In Canada, offences are categorized into three categories: summarily elected, indictable, or hybrid. When a Crown chooses to summarily elect an offence, it means that the offence is kept in the jurisdiction of the provincial court and usually results in lesser penalty, ranging in sentencing from a on-custodial sentence to two years less a day in prison. Indictable offences may result in up to 14 years of imprisonment. Hybrid offences are elected by the Crown to be either indictable or summarily elected. Section 334(a) describes theft over $5,000 as an indictable offence. Section 334(b) describes theft under $5,000 as a hybrid offence. Section 380(1)(a) describes fraud over $5,000 as an indictable offence, while fraud not exceeding $5,000 is a hybrid offence enumerated in s. 380(1)(b).
What are the Best Defences to Theft?
One of the primary defences to theft is the “Lack of Intent” defence. The accused may have accidentally moved an object without intent to deprive the rightful owner. To prove and convict theft, the Crown must prove the essential criminal element of a mens rea, that is, a “guilty mind.” The Crown must prove that the accused did intend to move the object. However, if the person accidentally and/or unknowingly takes an object, they cannot be convicted of theft.
Another defence to theft would be the “colour of right” defence. The “colour of right” is a legal term referring to a person’s legal right to a property. If an individual genuinely believes they have the colour of right to a piece of property, they cannot be convicted of theft of that property as they did not have the intent to steal or deprive someone of their property. For example, if a person mistakenly believes an object is a gift to them and takes it, they may be acquitted of theft due to a lack of intent of stealing.
What if You Believed the Item was Yours?
The mistaken belief that the accused had the “colour of right” or legal rights to an item is a defence that can be made in the event of a charge. If a person legitimately believes that they had the right to that item, they did not have the intent of stealing it or committing theft. The Court cannot convict a person who did not have the intent of committing the crime. The colour of right can be ascribed to a person when they paid for the property or was gifted the property. An accused may have an honest but mistaken belief that they had the colour of right to move an object. This honest but mistaken belief must be reasonable. The court will determine what is reasonable on a case-by-case basis.