Theft Charges in Alberta: What You're Actually Facing

A theft charge under section 322 of the Criminal Code is the most commonly laid property offence in Alberta. The conduct it covers ranges from a single misjudged moment in a retail store to organized commercial-scale dishonest taking. The sentencing exposure runs from absolute discharge at the lowest end to a 10-year maximum on indictment for theft over $5,000 at the high end. A first-offence shoplifting file and an employee-theft-with-breach-of-trust file are both "theft" under the same provision, but the defence work, the resolution path, and the sentencing exposure look nothing alike.

This page explains the elements of theft under s. 322, the value-based punishment structure under s. 334, the specialized theft offences in the Criminal Code (motor vehicle theft under s. 333.1, theft of telecommunication service under s. 326, theft by person required to account under s. 330, criminal breach of trust under s. 336), the defences that operate in these files — particularly the often-overlooked "colour of right" defence — and the sentencing and collateral consequences a conviction produces. KJR Law represents people facing theft charges across Calgary and Southern Alberta. Robbery — theft accompanied by violence, threats, or a weapon — is a distinct offence under s. 343 and is addressed on our robbery defence page.

Do Not Give a Statement Before You Speak with a Lawyer

Theft charges very often turn on what the accused says — to a loss-prevention officer, to police at the scene, to investigators at the detachment. "I forgot," "I meant to pay," "I didn't realize" can all sound exculpatory and all routinely become the foundation of the Crown's case on intent. The right to remain silent under s. 7 of the Canadian Charter of Rights and Freedoms and the right to retain and instruct counsel without delay under s. 10(b) apply from the moment of detention. That includes detention by a store security officer exercising powers under s. 494 of the Criminal Code. Call a lawyer first. Statements made before that call frequently shape the file for the duration.

The Section 322 Definition

Section 322(1) defines theft. A person 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:

• to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it;
• to pledge it or deposit it as security;
• 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
• 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.

Two phrases do the heavy lifting in this definition: "fraudulently" and "without colour of right." Both are elements the Crown must prove beyond a reasonable doubt:

• "Fraudulently" requires that the taking be dishonest. An honest taking — whether by mistake, by misunderstanding, or by genuine belief that the property had been paid for or was free for the taking — is not fraudulent. The mental state is at the heart of every contested theft file.
• "Without colour of right" is a complete defence where the accused had an honest belief in a state of facts or law that, if true, would have entitled the accused to the property. The belief need not be reasonable; it must be honestly held. Civil disputes reframed as criminal theft — disagreements over ownership, contract performance, debt, or entitlement — frequently fail at the colour-of-right hurdle.

Penalties Under Section 334

Section 334 of the Criminal Code graduates theft penalties by the value of the property:

Charge	Section	Prosecution	Maximum
Theft over $5,000	s. 334(a)	Hybrid	10 years on indictment / summary conviction
Theft not exceeding $5,000	s. 334(b)	Hybrid	2 years on indictment / summary conviction
Motor vehicle theft	s. 333.1	Hybrid	10 years on indictment / summary; six-month MM on third or subsequent indictable conviction
Theft of telecommunication service	s. 326	Hybrid	2 years on indictment / summary
Theft by person required to account	s. 330	Hybrid	10 years on indictment (value over $5,000), via s. 334
Criminal breach of trust	s. 336	Indictable	14 years

Because theft is a hybrid offence at both value bands, the Crown's election as between summary conviction and indictment is consequential: the available sentencing range, the procedural framework, and the appeal route all turn on it. The immigration exposure for non-citizens is a related but separate analysis — theft over $5,000 reaches the serious-criminality threshold under the Immigration and Refugee Protection Act on its 10-year maximum regardless of how the Crown proceeds (addressed under Collateral Consequences, below). Advocacy on charge selection and Crown election is among the most consequential pieces of early work on a theft file.

Shoplifting and Retail Theft

The most frequently laid theft charge in Calgary is theft under $5,000 in a retail context. The investigation typically follows a recurring pattern:

• A loss-prevention officer observes conduct in-store consistent with concealment of merchandise — either directly or through CCTV.
• The accused is detained at or beyond the point of sale under the citizen's-arrest power in s. 494(2) of the Criminal Code.
• The accused is taken to a back-of-store office, where personal information is recorded and police are called.
• Calgary Police Service attends, accepts the file from loss prevention, and either lays an information at the scene or releases the accused on an undertaking to appear.
• The store frequently follows up with a separate civil claim under provincial law for the cost of the goods plus statutory damages.

Several issues recur in these files. The lawfulness of the detention by loss prevention under s. 494(2) is reviewable — the citizen's-arrest power is bounded by what the officer "finds" the person committing, and the manner of the detention engages s. 9 of the Charter. The reliability of CCTV identifications, the accuracy of the inventory of allegedly stolen items, and the question whether intent to deprive can actually be proved at the moment the accused crossed the point of sale all bear on the strength of the Crown's case. Diversion through Alberta's Alternative Measures Program is available in appropriate first-offender retail-theft files and can result in no criminal record.

Employee Theft and Breach of Trust

Theft by an employee from an employer engages a different statutory and sentencing framework. Where the employee was in a position of trust — handling cash, processing transactions, managing inventory, or with access to organizational property by reason of employment — the Crown frequently lays one or more of the following charges in addition to (or instead of) a simple theft count:

• Theft by a person required to account — s. 330. Captures the fraudulent failure to account for or pay over money or property received on terms that require accounting. It is a form of theft, punished under s. 334 — up to 10 years on indictment where the value exceeds $5,000.
• Criminal breach of trust — s. 336. Captures the fraudulent conversion, by a trustee and in contravention of the trust, of property held in trust. Straight indictable; maximum 14 years.
• Fraud — s. 380. Captures fraudulent conduct involving deceit, falsehood, or other fraudulent means. Maximum 14 years where the amount exceeds $5,000.

Position of trust is a statutory aggravating factor on sentence under s. 718.2(a)(iii) of the Criminal Code. Sentences in significant employee-theft files involving substantial sums or genuine breach of fiduciary obligation routinely include custodial dispositions, particularly where restitution is partial or non-existent.

The Defences That Actually Work in Theft Files

Theft files reward careful work on intent, on identification, and on the Charter status of the investigation. The arguments that may succeed:

Colour of right. The most underused defence in theft files. Where the accused honestly believed — even mistakenly — that the property was theirs to take, the Crown cannot prove the offence. Civil disputes over ownership, contract performance, debt, or shared property frequently support a colour-of-right defence. The honest belief need not be reasonable. It must be honestly held.

Lack of fraudulent intent — honest mistake. The "fraudulently" element requires dishonesty. Genuinely forgetting an item in a cart, in a basket, or under another item; placing an item in a bag with intent to pay and forgetting; or other genuinely innocent conduct does not constitute fraudulent taking. The retailer's frustration is not the criminal law's measure.

Mistaken identity. Many theft files rest substantially or entirely on surveillance footage. The quality of the footage, the clarity of the identification, the absence of other identifying evidence, and the reliability of any eyewitness account are all open to challenge. Where the Crown's case is "this person, on this video, on this date," the defence work begins with the integrity of that identification.

Civil dispute, not criminal theft. Disagreements between business partners, ex-spouses, landlords and tenants, and contracting parties are frequently characterized as theft by one side and as legitimate ownership disputes by the other. Where the conduct is in substance a civil dispute over property rights, the criminal law is the wrong forum and the colour-of-right defence is squarely engaged.

Charter section 9 — unlawful detention. Loss-prevention officers exercise the s. 494 citizen's-arrest power. That power is bounded — by the requirement that the officer "find" the person committing the offence, by the reasonableness of force used, and by the duty to deliver the person to police forthwith. Where the manner of the detention exceeded the lawful basis, s. 9 of the Charter is engaged and the evidence flowing from the detention is reviewable.

Charter section 8 — unlawful search. Searches incident to detention — of a bag, a vehicle, a person — engage s. 8. Where the search exceeded the lawful basis, the seized property and any derivative evidence are subject to exclusion under s. 24(2) of the Charter.

Charter section 10 — right to counsel. Statements taken at the store, in the back office, or at the police station before counsel was offered are reviewable under R v Grant, 2009 SCC 32, the Supreme Court's leading authority on detention and the exclusion of evidence under s. 24(2). Where the right to counsel was not properly implemented, statements and their fruits are subject to exclusion.

Sentencing and Resolution Options

Sentencing in theft files spans the full range:

• Alternative Measures Program (s. 717). Available in appropriate first-offender, low-value cases. Resolution outside the formal criminal track. No criminal record on completion.
• Absolute or conditional discharge. Available where the accused is found guilty but the court is satisfied that it is in the accused's best interest and not contrary to the public interest. A conditional discharge involves a period of probation; absolute discharge does not.
• Suspended sentence and probation. A finding of guilt and a suspended sentence with a period of probation, typically including conditions related to community service, restitution, and counselling.
• Fine. Stand-alone or in combination with probation.
• Conditional sentence order (CSO). Following Bill C-5 (2022), CSO availability has been expanded for many offences. The current s. 742.1 framework applies on a case-specific basis. (A CSO is barred where a mandatory minimum applies — relevant only to a third or subsequent indictable motor vehicle theft.)
• Custodial sentence. Available across the range — from days for repeat low-value retail theft, through months for moderate-value or repeat offending, through years for high-value, position-of-trust, or organized theft. The 10-year maximum on s. 334(a) sets the upper bound.

Restitution. Section 738 of the Criminal Code allows for restitution to a victim for property loss. Restitution orders are routinely sought by the Crown in theft files. Voluntary pre-sentence restitution is a recognized mitigating factor and is materially helpful in resolution discussions.

Collateral Consequences

A theft conviction reaches past the sentence the court imposes. Two distinct families of consequence follow, and they operate differently.

Court-imposed ancillary orders. On a finding of guilt, the sentencing court may make orders that travel alongside the sentence:

• Restitution — s. 738. An order to compensate the victim for property loss, routinely sought by the Crown. Voluntary pre-sentence restitution is also a recognized mitigating factor (see Sentencing, above).
• Victim surcharge — s. 737. A surcharge that may be imposed on a finding of guilt.
• Forfeiture — where the property or its proceeds are subject to a forfeiture or proceeds-of-crime order.

Downstream consequences. Separate from any order the court makes, the fact of a conviction can carry consequences the criminal court does not impose and cannot control:

• Immigration jeopardy (Immigration and Refugee Protection Act). For non-citizens, the IRPA's serious-criminality threshold (s. 36(1)(a)) is reached two ways: conviction of an offence punishable by a maximum of at least 10 years, or a term of imprisonment of more than six months actually imposed. Theft over $5,000 meets the first branch on its 10-year maximum — and because s. 36(3) deems a hybrid offence indictable however the Crown elects, that exposure does not depend on the Crown proceeding by indictment. Theft under $5,000 falls below the 10-year branch, but a custodial sentence of more than six months can still trigger serious criminality. The form of sentence matters here: in Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court held that a conditional sentence is not a "term of imprisonment" for s. 36(1)(a), so a CSO — even one longer than six months — does not engage the sentence-based branch. Serious criminality can lead to inadmissibility, and where a custodial term of six months or more is imposed, the right of appeal to the Immigration Appeal Division is lost (s. 64).
• Employment. Theft convictions show on criminal record checks and are disqualifying for many positions requiring bonding, financial trust, or vulnerable-sector clearance.
• Professional and trade licensing. Regulated professions and trades may impose discipline up to and including loss of licensing.
• United States travel. Theft offences are typically classified as crimes involving moral turpitude by US Customs and Border Protection, which can render a person inadmissible. The usual path forward is a US entry waiver, which must be applied for and periodically renewed.
• Civil exposure. Retail-theft files frequently produce a separate civil claim under provincial law for the cost of goods and statutory damages.

Companion Charges

Theft charges frequently travel with companion counts:

• Possession of property obtained by crime — s. 354. Where stolen property is found in the accused's possession.
• Break and enter — s. 348. Where the theft is alleged to have occurred during unlawful entry.
• Robbery — s. 343. Where violence, threats, or a weapon attended the theft.
• Fraud — s. 380. Frequently in employee-theft and identity-related files.
• Breach of trust — s. 336. In employer-employee, fiduciary, and trustee contexts.
• Conspiracy — s. 465. Where multiple participants are alleged.
• Failure to comply — s. 145. Where the alleged conduct occurred while on a court order.

Where We Appear

We act on theft files in the Alberta Court of Justice, the Court of King's Bench of Alberta, and the Court of Appeal of Alberta. From our Calgary office we travel to court in Airdrie, Cochrane, Canmore, Okotoks, Diamond Valley, Didsbury, Strathmore, Drumheller, Hanna, Brooks, Medicine Hat, Lethbridge, Fort Macleod, Taber, Pincher Creek, and Cardston, and we appear in matters arising on the Tsuut'ina, Siksika, and Kainai (Blood Tribe) Nations.

If You Have Been Charged with Theft, Call a Lawyer Today.

Theft files reward early engagement — particularly where Alternative Measures Program eligibility is in play, where the colour-of-right defence is engaged, or where the Charter status of the detention or search is open to challenge. The initial consultation is at no charge and is conducted in strict confidence.