Theft, Fraud And Possession Of Stolen Property

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Contents

What Is Theft?

Defences To A Charge Of Theft

What Is Fraud?

What Is Possession Of Property Obtained By Crime?

Referral Numbers

 

What is Theft?

A theft occurs when a person takes or uses something which does not belong to him/her without the owner’s permission. It is also considered theft if a person moves something which s/he plans to steal or take.

 

There are two parts to a charge of theft. First, there must be an act of taking, moving, or using something without the permission or knowledge of the true owner. Second, the person taking or moving the item must have known that the property belonged to someone else. This means that if the person who took or moved the item honestly believed that she had the right to take or use the object, or made a mistake as to who owned the object, then she should not be found guilty of theft. For a person to be found guilty of theft, both parts of the offence must be proven by the Crown Prosecutor in Court.

 

The Criminal Code definition of Theft

Section 322 of the Criminal Code defines theft. This section creates two possible charges:

  1. Theft over $5000
  2. Theft under $5000

 

The difference between the two charges is in the value of the property taken and the punishment the person charged will receive if he is found guilty.

 

Theft under $5000 

Under s.334(b) of the Criminal Code, if a person is found guilty of taking something worth less than $5000, he or she can be found guilty of either an indictable offence or a summary offence. Indictable offences are considered more serious than summary offences. The Crown Prosecutor will decide whether they will proceed an an indictable or a summary charge.

If a person is found guilty under s.334(b) of an indictable offence, then he could be sentenced to a prison term of up to two years.

If a person charged under s.334(b) is found guilty of a summary offence, then he could be fined up to $2000 and could be sent to prison for 6 months or less.

 

Theft over $5000

Under s.334(a) of the Criminal Code, if a person is found guilty of taking something worth more than $5000, this is an indictable offence and this pecould be sentenced to jail for up to ten years. A person who is charged with s. 334(a) should seek the advice of a lawyer because of the seriousness of the charge.

 

Defences To A Charge Of Theft

1. “Colour of Right”
For the taking of something to be a theft, the taking must be “without colour of right”. This means that if the person accused of theft honestly believed that he had a legal right to take the property, then he cannot be found guilty of theft. This defence does not apply where the accused honestly believed he deserved to have the property or where the accused thinks that it is fair that he get the property.

 

2. “I forgot”

To be guilty of the offence of theft the person who has been accused must have known that she did not own something and have intended to take that thing or move it away from the true owner. This means that if a person honestly forgot to pay for an item, and didn’t intend to leave the store without paying for it, this person did not have the intent to steal and has a defence to the charge. However, people are generally assumed to intend their actions and if a person leaves a store without paying, it may be difficult for a Judge to believe the person intended to pay for the item.

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Restitution

Restitution means to restore, or to put things back to the way they once were. If a person is accused of theft, or found guilty of theft, he may be asked to make restitution. In this situation, restitution means that the person must give back the items taken or moved. He must try to put the true owner of the goods back into the position he was in before the theft occurred. If the goods can no longer be returned, it may be that there is something else the true owner will accept to replace what was stolen.

If a person is planning on pleading guilty, he can make restitution to the true owner before pleading guilty. If a person is pleading guilty and has made restitution it is important for that person to tell the Judge. Sometimes when a person has made restitution the Judge will consider this and give the person a lighter sentence.

 

Civil Liability to Complainant

In some cases involving theft from retail stores, a person may receive a letter after the fact from the store regarding possible civil legal action against her, or in other words, they might want to sue her. This is separate from the criminal charge and has specific unique issues. Before the person takes any action, she should consult a lawyer or Student Legal Services to discuss her potential liability.

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 What is Fraud?

The offence of fraud is described as acting dishonestly with the goal of depriving any person. An example of this occurs when a person has switched the price tags on two items. Although in this situation people are often charged with theft, a person could also be charged with fraud. 

 

The Criminal Code definition of Fraud
Section 380 of the Criminal Code defines fraud. This section creates two possible charges:

  1. Fraud over $5000 or involving a testamentary instrument and
  2. Fraud under $5000.

 

A testamentary instrument is either a will or a legal trust which a person has set up so that his possessions will be given to family and friends once he or she has died.

 

Fraud was over $5000, or involving a testamentary instrument

Fraud over $5000 or involving a testamentary instrument is an indictable offence. If a person is found guilty of this offence he could be sent to jail for up to fourteen years.

 

Fraud was under $5000

The Crown prosecutor will look at the facts of the case and decide whether to charge the person with an indictable or summary offence. If the person is charged with an indictable offence then he could be sentenced to a jail term of two years or less. If the person is charged with the summary offence of fraud under $5000, he can be fined up to $2000 and sentenced to a jail term of six months or less.


Switched price tags and mistakes in deposits
If a person switches the price tags on two items and then leaves the store, knowing that he is paying less for the item being bought than the original price tag, then that person may be charged with theft. Also, if a bank deposits money in a person’s account and the person knows the bank made a mistake, but spends the money anyway, then that person may be charged with theft. In the bank example the person can only be found guilty if he intentionally spent the money knowing that it was not his own.

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What is the offence of possession of property obtained by crime?

The offence of property obtained by crime is made up of two parts.

First, a person charged with this offence must be in possession of property that was (or was partly) gained by theft, fraud, or any other crime. Being in possession means that the person is able to exercise some degree of control over it, even if the original owner cannot be found or no owner can be identified. 

Second, the person must have known that the property was stolen or gained by fraud. Also, if the Crown can show that it was obvious that a reasonable person would have thought the property was stolen and the accused failed to investigate whether it was stolen or not, he can be found guilty of possession of stolen property.

 

If a person is found in possession of something that has recently been stolen, they may have to provide an explanation for why they had the object to avoid guilt.

 

Where the act of theft and the possession of stolen goods are done at the same time, the person cannot be convicted of illegal possession of the same things they stole. The punishment of being found guilty of this offence is the same as for fraud.

 

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 Referral Numbers

Lawyer Referral Service 1-800-661-1095
Student Legal Services 780 492-2226
Native Counselling Service 780 451-4002
Elizabeth Fry Society 780 421-1175
Courthouse Office 780 421-4775
Legal Aid Society of Alberta Edmonton 780 427-7575
Legal Aid Society of Alberta has offices located at the Courthouses in Drumheller, Hanna, Medicine Hat, Fort McLeod, Wetaskiwin, Grande Prairie, Peace River, Red Deer, Vegreville, and Lethbridge.

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