Is It Possible to Beat a Theft Charge?
Success In Fighting a Theft Charge May Occur By Raising Reasonable Doubt That a Theft Actually Occurred or By Showing That the Person Accused Was Without An Intent to Commit a Theft. There Are Also Other Defence Strategies That May Apply.
Understanding the Charge of Theft of Money or Property Including Potential Penalties and Available Defence Strategies
A theft charge may allege a relatively minor shoplifting incident or may allege an incident involving money or property of substantial value. In either circumstance, upon conviction for a theft charge, the affects upon the convicted person will be life changing; and accordingly, a carefully selected defence strategy is well warranted.
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.
The potential penalty for theft depends on the value of the money or property allegedly stolen and whether the prosecutor chooses to proceed with the charge as an indictable offence proceeding or a summary conviction proceeding. As interestingly notable, if a theft charge proceeds as an indictable offence, then only a lawyer may provide legal representation services on behalf of the accused person; however, if a theft charge proceeds as a summary conviction offence, then either a lawyer or a paralegal may provide legal representation services.
As for the specifics regarding the potential penalties that apply upon a conviction for theft, the Criminal Code states:
334 Except where otherwise provided by law, every one who commits theft
(a) if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of
(i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or
(ii) an offence punishable on summary conviction; or
(b) if the value of what is stolen is not more than $5,000, 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.
As shown above, section 334 of the Criminal Code specifies two possibilities for penalties for theft. For a theft charge prosecuted as an indictable offence, a maximum ten (10) year term of imprisonment is expressly stated; however, for a theft charge prosecuted as a summary conviction offence, the penalty is unstated; and accordingly, reference to section 787(1), which provides the General Penalty details applicable to a summary conviction offence, is necessary. Specifically, section 787(1) states:
787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
As shown per section 787(1) above, the potential General Penalty for a theft prosecuted as a summary conviction offence is a fine up to $5,000 or two years less a day imprisonment or both.
In addition to the potential for a significant fine and imprisonment, a conviction for theft may result in a criminal record that adversely affects future employment opportunities as well as travel privileges into the United States. Accordingly, a strategic defence against theft allegations is worthy and warranted.
Available Defence Strategies
Absence of Intention
A general principle in criminal law is the requirement of mens rea which loosely means a guilty mind or an intent to commit the illegal act. With respect to theft, there is also the criminal law adage of animus furandi which means intent to steal; and accordingly, where a reasonable doubt of an intent to commit theft arises, the charges against the accused person should be dismissed. An absence of intent to commit theft may occur when a person accidentally forgets to pay for an item at a store as can, and does, happen from time-to-time, especially if a person is distracted by a child acting up or a phone call or many other reasons a lack of attention.
The significance of the mens rea element in sustaining a theft charge was mentioned by the Supreme Court in R. v. Vaillancourt,  2 S.C.R. 636 where it was said:
... there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty.
Colour of Right
A theft charge may also be defended on the basis that a lack of intention to commit theft existed because of a reasonable belief in a right to the money or object that was stolen. Simply said, the law allows a person accused of theft to demonstrate that a reasonable belief in a right to possess the money or object existed. If a person accused of theft can reasonably show that there was a genuine belief in a right to take what was taken, then the person accused of theft lacks guilt as, similar to above, there was a lack of intent to commit theft. A simple example would be taking a coat from a closet that you believed was your coat but was actually a similar coat owned by someone else.
The colour of right defence may sound very similar to the absence of intention defence, especially whereas both relate to lack of intent to commit theft. The difference is that with the absence of intention defence, the taking of money or object was accidental and unconscious; however, with the colour of right defence, the taking of money or object was intentional yet without intent to steal the money or object as the accused person had a reasonable belief in a right to take the money or object.
The principle of colour of right was explained well in R. v. Dorosh, 2003 SKCA 134 where it was said:
 The jurisprudential history surrounding the phrase “colour of right” indicates that the meaning of the phrase has a certain quality of elusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170). The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O. and Estey J.A.), in R. v. DeMarco (1973), 1973 CanLII 1542 (ON CA), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issues raised by earlier Canadian cases where the phrase was considered. He said:
The term "colour of right" generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact: see R. v. Howson, 1966 CanLII 285 (ON CA),  3 C.C.C. 348, 55 D.L.R. (2d) 582,  2 O.R. 63. The term "colour of right" is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
 Since DeMarco was decided, the Supreme Court of Canada has dealt with the “colour of right” issue in two cases: R. v. Lilly, 1983 CanLII 153 (SCC),  1 S.C.R. 794; and R. v. Jones, 1991 CanLII 31 (SCC),  3 S.C.R. 110. Nothing said in the judgments in either of those cases in any way detracts from Martin J.A.’s definition. If anything, the Court’s decision in Lilly may be said to impliedly support the definition. In two other cases, R. v. Lafrance,  1 S.C.R. 201 and R. v. Milne, 1992 CanLII 86 (SCC),  1 S.C.R. 697 the "colour of right" issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarco definition.
 A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: The Law of Theft and Related Offences p.153) or in a mistake in a state of facts. The mistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done.
Interest in Money or Property
A person accused of theft may be able to defend the allegation on the basis that theft requires taking money or an object without consent; and accordingly, if the person accused of theft is actually the owner, or is otherwise a person with a possessory interest, then it will likely be difficult for the prosecution to obtain a conviction. Simply said, for a theft charge to succeed, proof that the money or object was stolen is required; and a person is unable to steal something from oneself. With this said, it is notable that a theft charge may be sustained, meaning result in a conviction, where the owner of an object takes the owned object from someone who is in rightful possession of the object. For example, if the owner of an automobile were to use a second set of keys to remove the automobile from the storage lot of a repair garage without first paying for the repair work this may be a situation where a theft occurs despite that the automobile was taken by the automobile owner.
An person accused of theft may also be defended on the basis of an inaccurate identification of the accused person. Witness identification is often fallible. Indeed, even a credible witness may be unreliable when identifying an accused person and a court must remain alert to the possibility and take great care to appreciate the possibility of a mistake. This requirement was explained well by the Court of Appeal in the case of R. v. Olliffe, 2015 ONCA 242 where it was said:
 The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.
 The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.
 Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
 The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 CanLII 390 (ON CA),  3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull,  Q.B. 224 (Eng. C.A.), at pp. 228-229.
A criminal theft charge may involve money or an object, or anything tangible or intangible. A theft charge may be classified as theft over $5,000 or theft under $5,000 depending on the value of the thing stolen. A theft over $5,000 charge involves penalties of up to ten (10) years in jail. A theft under $5,000 charge involves penalties of $5,000 fine or two years in jail or both. Both classifications of theft charges may be prosecuted as an indictable offence or as a summary conviction offence. If a theft charge is prosecuted as an indictable offence, only a lawyer is permitted to provide legal representation for the accused person. If a theft charge is prosecuted as a summary conviction offence, either a lawyer or a paralegal is permitted to provide legal representation for the accused person..