What is theft?

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What is theft?

There are several theft crimes in Canada, and they all use the definition of theft in section 322 of the Criminal Code. The most general and main theft crime is just “theft” under section 334 of the Criminal Code (although it is split into theft of property under $5000.00 and of property over $5000.00).

Theft is fraudulently taking or “converting the use of” anything from a person without their consent or “colour of right” and with intent to do at least one of the following:

Permanently or temporarily deprive the owner or person with an interest in it of it. For example, intending to keep a stolen phone for a while, or a stolen computer forever.

Pledge it or deposit it as a security. For example, intending to pawn a stolen watch for some quick cash, or to use a stolen car as collateral for a loan.

Give it up or return it to the person only if the person does something they may not be able to do. For example, intending to return a stolen pet, but only if the owner gets you hired at your dream job.

Make it unable to be restored to the condition it was in when it was taken or converted. For example, intending to return your mother’s stolen family photo album, but only after you scratch out the eyes in each picture of your father.

Notice that theft applies to “anything” that someone owns or has a legal interest in and can be taken or converted in a way that somehow deprives the owner of it. This includes, for example, cash, money in a bank account, jewelry, pets, wild animals, or shares of a company held in a trust account.

Even though shoplifting is theft and is not a separate offence, it is generally treated somewhat differently by prosecutors and courts. 

Sentences for theft range from years in prison to an absolute discharge (which means no conditions or criminal record). This is because theft can be anything from minor shoplifting to stealing millions of dollars. The maximum prison sentence for theft of property under $5000.00 in value, or for summary theft of property over $5000.00 in value, is two years less a day. The maximum prison sentence for indictable theft over $5000.00 is 10 years.

When is it legal to take something from someone else?

If you honestly believed that something was yours when you stole it – even though it was not yours – then you did not commit theft. This is sometimes called the “colour of right” defence. It can also be thought of as an element of the offence: The crown prosecutor must prove that you stole the property without colour of right and were acting dishonestly.

Either way, a colour of right argument will very rarely succeed unless the accused person can convince the judge that they honestly and reasonably believed the property belonged to them.

Honestly believing that you should own the property is not enough. You must honestly believe that you do own it – or that you did when you took it.

Is it theft if I did not physically take anything?

You can commit theft without physically taking anything. Consider the following examples:

You write down someone’s credit card information and use it to buy and ship you a bean bag chair from Amazon. In this example, even though you did not physically take the credit card yourself, you still used it to commit theft. You converted the victim’s credit card and took their money (or available credit). This also may fall under one of several related crimes that deal with fraudulent credit card use.

As an employee of a company that ships sewing supplies, you change the destination address of a sewing machine to your grandmother’s house. Your grandmother receives the sewing machine and asks no questions. In this example, even though you did not physically take anything for yourself, you converted the use of the sewing machine from the actual buyer to your grandmother. This is theft, and could also be fraud. Employee theft is taken very seriously, and is often found to be an abuse of trust, which makes for a harsher sentence. You may have also implicated your grandmother.

Inspired by the television show “Storage Wars,” you used bolt cutters to remove the lock from a storage unit and replaced it with your own lock, intending to return later with a U-Haul truck and “claim your prize”. You change your mind when you realize U-Haul rental prices have gone up, so you never return to the storage unit. In this example, even though you ultimately decided not to take anything, you committed theft when you converted the storage locker and its contents from the owner’s use to yours by switching locks with the intention to deprive the owner of the property and keep it for yourself. You could have also committed criminal mischief by cutting the owner’s lock, and by interfering with their use of the storage unit.

Is it theft if I give it back?

Yes, you can commit theft even if you give back what you took. Consider this hypothetical example:

Jamie’s boyfriend drives his bicycle to work every day. He does not have a car. Jamie feels he is spending too much time at work, and not enough time with her. The two argue about it. That night, while her boyfriend is in the bathroom, Jamie hides his bicycle lock key so that he cannot use his bicycle to go to work. The next day, Jamie’s boyfriend calls into work “sick”, and Jamie later “finds” the key in the couch and gives it to him. This was her plan all along.

Even though she only hid the key and gave it back later, Jamie committed theft because she took her boyfriend’s bicycle lock key from him without his consent and with the intention of depriving him of it.

Is it theft if they have no use for it?

Yes, taking something from someone without their consent or colour of right is theft, even if you honestly believe that it has no value or use to them.