Theft
Theft is the criminal offence, defined in section 322 of the Criminal Code, of fraudulently and without colour of right taking or fraudulently converting anything with the intent to deprive the owner of it. Theft is one of the most commonly charged offences in Canada. Penalties depend on the value: theft over $5,000 is straight indictable, maximum 10 years; theft under $5,000 is hybrid, summary maximum 2 years less a day, indictable maximum 2 years.
Elements
The Crown must prove four elements: (1) the accused took or converted property; (2) the property belonged to another (or in which another had a special property or interest); (3) the act was done fraudulently and without colour of right; and (4) the accused had the intent to deprive the owner, temporarily or absolutely. The mens rea is specific: fraudulent purpose and intent to deprive.
Taking vs. converting
Taking covers cases where the accused removes property from the owner's possession without consent (shoplifting, pickpocketing). Conversion covers cases where the accused lawfully came into possession of the property but later treated it as their own — failing to return rental equipment, keeping a found wallet, refusing to return borrowed items. Both pathways are theft, but the analysis can differ — particularly on the intent question.
Common forms
Theft files commonly arise from: shoplifting from retail stores (frequently captured on surveillance video); theft from employers (including workplace theft of inventory, cash, or equipment); theft by conversion in service contexts (cleaning staff, contractors, drivers); credit and debit card theft; vehicle theft; theft of cellphones and personal electronics; and theft from family members or roommates.
Colour of right
An honest belief that the accused had a right to take the property — even where mistaken — negates the fraudulent purpose. "Colour of right" is a recognized defence at common law and is reflected in the statutory definition. Examples include: a person taking back property they believe is their own; a person taking property under a perceived debt or obligation; a person retrieving property they were entitled to under contract. The belief must be honest but need not be objectively reasonable.
Resolution and sentencing
Many theft cases — particularly first-offender shoplifting cases — resolve through diversion, peace bonds, or discharges. The dollar value matters; theft under $5,000 has more flexibility than theft over $5,000. Mass Tsang's criminal lawyers regularly resolve theft files without conviction where the facts support it. For more, see our blog post on theft charges in Ontario.
Related glossary terms
