What are the best defences to theft charges?

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What are the best defences to theft charges?

There are several ways you may be able to defend yourself against a theft charge. The defences available to you – including the best defence – will depend on the specific facts of your case. Possible defences to a theft charge include:

• Theft not proven: The crown prosecutor did not prove the theft beyond a reasonable doubt.
• Colour of right/mistake of fact: You honestly believed the stolen thing was yours.
• Duress: Somebody else intentionally forced you to steal it.
• Necessity: You were in an emergency situation and morally had no choice but to steal it.
• De minimis: The theft was so minor that you should not be convicted for it.
• Charter rights violation: Evidence against you is excluded or your charge is dropped because your Charter rights were violated, leaving you without a conviction.

These defences are discussed in the answers to the questions below.

Is it theft if the crown prosecutor cannot prove that I did it?

You cannot be convicted of theft unless the judge decides that each element of the offence is proven beyond a reasonable doubt. It is the crown prosecutor’s job to prove each element of the offence. If they do not do so, then the accused must be acquitted. I discuss the elements of the offence of theft in another FAQ.

Arguing that the crown prosecutor did not prove the elements of the offence beyond a reasonable doubt is not a true legal defence (like self-defence or duress), but it is how many theft defences are won at trial.

Is it theft if I honestly believed it was mine at the time?

If you took or converted something while honestly but mistakenly believing that it was yours, or that you had a legal right to it, then you did not commit theft.

This is called having a “colour of right”, and it can be argued as a “mistake of fact” defence, or as a failure of the crown prosecutor to prove the mental element of the offence beyond a reasonable doubt.

Honestly believing that the stolen item should be yours is not a defence. You must have believed it was yours when you took it.

Is it theft if I was forced to steal by someone else?

If someone intentionally forced you to commit the offence by clearly threatening you or someone else of bodily harm, then the defence of duress may apply. This is also called the defence of coercion or compulsion.

For the defence of duress to apply, you must believe that the threat will be carried out, and you must not be a party to a related conspiracy or criminal organization.

In some cases, the defence will not apply unless the judge decides that (1) there is no safe way to escape the threat, (2) the threat and the theft happen closely in time, and (3) the theft was a proportionate response to the threat.

The duress defence might apply if, for example, someone you have never met puts a gun to your head and makes you steal a piece of jewelry from a department store.

Is it theft if I had to do it for an emergency?

If you stole in an emergency situation because a “normal human instinct” like protecting yourself or someone else “overwhelmingly impelled” you to do so, then you may be found not guilty based on the defence of necessity.

For example, stealing an EpiPen from a closed pharmacy to save your friend who is suffering from a deathly allergic reaction may be an act of necessity. Stealing a gun from someone who is about to shoot you with it may also be necessity.

The necessity defence is rarely used, possibly because charges are not usually laid in situations where it would apply.

Is it theft to steal a tiny amount of food?

Theft is theft no matter how little value the stolen thing has, including a tiny amount of food. However, in very rare circumstances, a criminal lawyer may be able to persuade a judge that the de minimis offence applies. This happens when a crime is so minor and nonserious that convicting someone of it would make the justice system look bad.

In one case, a judge decided that someone who stole “a handful of nuts” from a grocery store should not be convicted based on the de minimis defence. However, people have been found guilty of theft for taking similarly inexpensive items in other cases.

This defence is rarely used. If you steal a small amount of food, then you will most likely be charged with theft for shoplifting. I discuss shoplifting in a separate FAQ.

Can I be convicted of theft even though my rights were violated?

Having your Charter rights violated by the police (or other state actor, like the courts) is not a true legal defence, but it can lead to the crown prosecutor not being able to use incriminating evidence to convict you, and possibly even to a stay of proceedings (dropped charges).

For example, if the crown prosecution’s case is based on a “confession” you gave without being provided your right to speak with a lawyer, then that confession may be excluded as evidence, leaving no case against you. Or, if your case is dragged on for years before you get to have your trial through no fault of your own, then the judge might order a stay of proceedings based on unreasonable delay violating your right to a reasonably timely trial.

Sometimes your best chance at avoiding a theft conviction is making a successful Charter argument. This is a complicated area of the law – without the help of a criminal lawyer, you may not even know that your rights have been violated.