Theft & First Offenders

There are a number of Criminal Code provisions that describe theft and other relevant offences. The Criminal Code sets out what the law is and what the elements of offences are. The wording of the Code is important because it tells you what needs to be proven in order for you to be found guilty of a criminal offence. Knowledge of what you are charged with is very important when you are considering your defence.

Points of Consideration

Theft and the Criminal Code
Fraud and the Criminal Code
Possession of Stolen Property
Elements of Theft Charges and Interpretation
First Offenders

Theft and the Criminal Code

The main section that relates to theft is Section 322 of the Criminal Code, which reads as follows:

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

(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;

(b) to pledge it or deposit it as security;

(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

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

(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.

(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.

A series of ensuing provisions flow from the definition of theft given in Section 322. Some examples include:

  • Ss 326 and 327 – theft of telecommunication service
  • S 329 – theft from person having special property or interest
  • S 330 – theft by person required to account
  • S 331 – theft by person holding power of attorney

The Criminal Code also includes a number of offences that resemble theft, including:

  • S 335 – taking motor vehicle or vessel without consent
  • S 336 – criminal breach of trust
  • S 340 – destroying documents of title
  • S 341 – fraudulent concealment
  • S 342 – theft, forgery, etc. of credit card

 

Fraud and the Criminal Code

380.

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty

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

(ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

 

Possession of Stolen Property

354.

(1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

 

Elements of Theft Charges

The Criminal Code sets out in Section 322 what “theft” actually means in law. The Crown prosecutor must prove all of the elements of a theft charge laid out in the Code beyond a reasonable doubt.

Sometimes reading the Criminal Code can be confusing. Experienced counsel can help you understand and navigate your way through the criminal process. In reality, the Criminal Code lays out the charges for you, but what actually has to be proven against you is usually explained through other theft cases where judges and lawyers have argued for hours about what each word in the Criminal Code actually means.

The words of Section 322 state:

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

(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;

(b) to pledge it or deposit it as security;

(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

(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.

Therefore, to secure a conviction for theft the Crown must prove that the accused: (1) took or converted anything, (2) fraudulently without permission and without a good faith belief he or she had permission and (3) the accused intended to do so.

Over the years, case law has helped explain what some of these elements actually mean:

“Takes or converts”

Takes or converts includes the situation where you receive property transferred under mistake and you know of the mistake. For example, where an invoice for services is mistakenly paid for twice by a complainant this could still lead to theft charges if you knew about the mistake. The conduct here was not a taking but it was a conversion. Conversion covers the situation where there is no initial taking or the initial taking was innocent.

“Anything
Theft is not restricted to tangible items. It can include intangible items. However, to be the subject of a theft it must be property of some sort that is capable of being taken (in the case of tangibles) or converted (which can apply to intangibles) in a way that deprives the owner of his proprietary interest in some way.

“Fraudulently”

Conduct is not fraudulent unless it is morally wrong. Fraudulent conduct must be done intentionally, under no mistake and with knowledge the property belonged to another person.

“Colour of Right”

Colour of right involves an assertion of a belief in a proprietary or possessory right to the item and it does not depend on a charged individual’s actual rights in the matter. It is an honest belief in a claim even though unfounded in fact and law. It also denotes an honest belief in a state of affairs, which if it had actually existed, would at law justify or excuse the act done.

 

First Offenders

If this is your first time charged with a criminal offence, it can be a daunting and intimidating experience. It is also a very serious matter. The police will likely have given you some documents when you were charged that you may not understand. Some of them even require you to follow certain conditions. All of them will require you attend court on a specific day and maybe to attend at your local police station for fingerprints and photographs to be taken.

If you are trying to keep these charges hidden from your friends of family, you may also find you are left feeling frightened and isolated. Reaching out to experienced criminal defence lawyers will help you understand the charges you are facing and the consequences of them.

Criminal charges are serious, even for first time offenders. When criminal charges are laid against you the following things will be happen:

  1. There will be a record of your criminal charge in the police system which may be shared with other police departments and law enforcement agencies;
  2. There will also be a record of your form of release and potential conditions you must follow;
  3. You will have a court date set where you will be required to attend and face your charges;
  4. The Crown Attorney’s office will have a file with your information and the evidence against you. They will store this file indefinitely.
  5. Anytime you appear in court it will be open to the public and a transcript will be created that is releasable to anyone upon request;
  6. You will have to give your fingerprints and photograph to the police on a given day

Even if your charge is withdrawn or you receive a discharge instead of a conviction, some of these records will continue to exist indefinitely. It is very difficult to have criminal proceedings completely erased from your life, considering the large amount of information regarding the offence that is created.

In order to protect your personal and professional reputation, it is important you retain and consult experienced defence counsel as soon as you learn about your criminal charges. Defence counsel can help you at each step of your criminal proceedings to make sure your best interests are protected.

All criminal charges are important and first time offenders should recognize the seriousness of their charges right away and seek help to protect themselves long-term.

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