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PROPERTY OFFENCES

Theft, Robbery and Property Offence Defence

Property allegations range from a shoplifting charge that can often be kept off a record entirely to a robbery prosecution treated as a serious offence of violence. What they share is that the Crown has to prove intent and identity, and both are more contestable than most people assume.

THE CHARGE

How property charges are graded

The dividing line at five thousand dollars changes how a theft or fraud allegation is prosecuted and what the exposure is.

Theft under section 322 requires taking or converting property fraudulently and without colour of right, with intent to deprive the owner of it. Theft under five thousand dollars is usually prosecuted summarily. Theft over that threshold is indictable and carries considerably greater exposure.

Robbery under section 343 is different in kind, not merely in degree. It is theft accompanied by violence or threats of violence, and the courts treat it as a violent offence with sentencing to match. The presence or absence of a weapon, and the nature of any threat, are therefore critical facts.

Possession of property obtained by crime

Charged under section 354, this requires knowledge that the property was obtained by crime. Recent possession can support an inference, but an innocent explanation properly advanced answers it. This charge very frequently accompanies a theft or break and enter count.

Break and enter

Section 348 requires proof of entry and of the intent to commit an indictable offence inside. Where the premises is a dwelling house the exposure rises sharply. Identity, in a case built on partial video or a single print, is often the whole issue.

THE CHARGES IN THIS GROUP

What you may be facing

Theft under $5,000, s. 334(b)
Includes most shoplifting allegations. Frequently resolved through diversion without a criminal record.
Theft over $5,000, s. 334(a)
Indictable, with custodial exposure and a much firmer Crown position.
Robbery, s. 343
Treated as a violent offence. Weapon allegations increase the exposure substantially.
Break and enter, s. 348
Higher exposure where a dwelling house is involved. Identity is usually the contested element.
Possession of property obtained by crime, s. 354
Requires knowledge. Innocent acquisition is a genuine and frequently successful answer.
Mischief, s. 430
Damage to property, often charged out of a domestic or neighbour dispute.
Theft of a motor vehicle, s. 333.1
Prosecuted increasingly seriously, often with related possession counts.
Trespass and related counts
Provincial and Code offences that commonly accompany property allegations.
THE BURDEN OF PROOF

What the Crown has to prove

Every element must be established beyond a reasonable doubt. If one element fails, the charge fails with it.

THE ELEMENTS
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That the property was taken or converted, and that it belonged to someone else.
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That the taking was fraudulent and without colour of right, meaning an honest belief in a right to the property is a complete answer.
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That the accused intended to deprive the owner, temporarily or absolutely.
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That the accused is the person who did it, which in video based cases is frequently the weakest element.
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On robbery, that violence or a threat of violence was used, and where alleged, that a weapon was involved.
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On possession counts, that the accused knew the property had been obtained by crime.
EXPOSURE

Penalties and consequences

Theft under $5,000
Diversion, restitution and non conviction outcomes are commonly available, particularly on a first allegation.
Theft over $5,000
Indictable exposure, with the Crown ordinarily seeking a criminal record and often more.
Robbery
A serious violent offence carrying substantial custodial exposure and ancillary orders.
Employment
Offences of dishonesty are the most damaging category for anyone in a position of trust or a regulated role.
Immigration and travel
Convictions for dishonesty affect admissibility and status.
Restitution
Courts frequently order repayment, and a proactive restitution plan can materially improve the resolution available.
Sentencing depends on the facts, the record of the accused and the position taken by the Crown. Nothing here is a prediction of the outcome of any particular case.
THE DEFENCE

Where these cases are challenged

These files are usually decided on intent, identity, or the honest belief the accused held at the time.

Identity

Grainy footage, a partial description and a single point of similarity are routinely offered as identification. Cross examination on the quality of the identification, and on the process used to obtain it, is often the whole defence.

Colour of right and honest belief

A genuine belief in an entitlement to the property is a complete answer to theft. This arises constantly in disputes between former partners, business associates and roommates.

Knowledge on possession counts

Buying something second hand, holding property for another person, or storing goods without asking questions is not the same as knowing it was stolen.

Whether robbery is made out

Where the alleged violence or threat is thin, the correct characterisation may be theft rather than robbery. That distinction changes the sentencing landscape entirely.

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Diversion, restitution and withdrawal are realistic objectives in many property files, and the earlier the groundwork is laid the better the position when the Crown considers it.
HOW THE FILE IS RUN

What happens once you retain

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Disclosure is requested immediately and read in full, including officer notes, audio, video and the continuity of every exhibit.
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Release conditions are reviewed at the outset. Terms that make work, housing or contact with family unworkable can often be varied long before the case ends.
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Legal issues are identified early, while there is still time to build a record for them.
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The Crown is engaged from a prepared position. Resolution is pursued where it serves you, not because it is convenient.
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You are kept informed throughout and you decide how the matter proceeds.
QUESTIONS WE ARE ASKED

Frequently asked questions

I was caught shoplifting. Will I have a criminal record?
Not necessarily. First allegations involving modest amounts are frequently resolved through a diversion programme, and completing it results in the charge being withdrawn.
The store already banned me and I paid for the items. Is the charge finished?
No. Civil recovery and store bans are separate from the criminal charge, which only the Crown can withdraw.
Is robbery really that much worse than theft?
Yes. It is treated as a violent offence, and the sentencing case law reflects that. Whether the facts actually amount to robbery is therefore worth contesting.
What if I honestly thought the property was mine?
Colour of right is a complete answer to theft. It has to be advanced with evidence, but where it is genuine it defeats the charge.
Will paying the money back help?
Restitution is relevant to resolution and to sentence, and a concrete plan presented early is far more persuasive than an offer made at the courthouse door.
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