What are the best defences to theft charges?

By Last Updated: August 10, 2022

What are the best defences to theft chargesThe best defence to your theft charge will depend heavily on the particulars of your offence and as such, you should review your disclosure with a lawyer to see what defences might be available to you. However, here are some commonly raised and effective defences that may be applicable in your circumstances:

No Mens Rea or Mental Intent:

One common and effective defence to a theft charge is to argue that you did not have the mental intention required to be found guilty of this offence. That is, while you may have taken the goods in question, it is also possible that you did not have the fraudulent intent required to be guilty of theft. A basic example of theft without intent would be if you accidentally walked out of a store with an item you did not pay for.

Colour of Right:

Another effective way to argue that did not have the intent required to be guilty of theft is to raise the defence of colour of right. Colour of right is a defence that can be raised when you believe that you had a proprietary or possessory right to the stolen item, when in reality you actually did not. Otherwise said, colour of right refers to a situation where if the facts that you believed to be true were true, you would not be guilty of theft.

An example of a colour of right defence would be where you took something because you honestly believed it was being lent to you. For example, you could take your friend’s car with the honest but mistaken belief that he was lending it to you, even though he was not. If you can provide a factual basis that shows that you honestly and reasonably believed in this particular state of affairs, you can use the defence of colour of right.

However, when raising colour of right as a defence, it is very important to note that the mistaken belief must be related to a mistaken understanding about the legal status of property, not your moral right to property. That is, you would not be justified in taking something because you were of the view that the person ‘owed you’ or that you were entitled to the property, so you decided to compensate yourself by taking it without consent.

You Had Title To The Goods In Question:

Because you need to take goods that belonged to someone else in order to be found guilty of theft, you may be able to defend your charges by showing that you had a proprietary or possessory interest in the item. Essentially, you cannot steal what is actually yours. However, even if you have a proprietary or possessory right in the good, if you take it from another person by fraudulent means, you could still be charged with theft. For example, you could not use the proprietary interest you have in your vehicle to steal it from an impound lot without paying a fee. If your car was legally towed and was impounded, you would still be legally required to pay a fee to recover your vehicle even though it is your property.


In the circumstances where your offence was not recorded, or the recording of the alleged offence is of dubious quality, you may be able to raise identity as a defence. That is, you can assert that you were not the person who commit the offence, and that the authorities made a mistake when identifying you as the perpetrator. In order to effectively raise this defence, it is important that you have some sort of corroborative evidence, for example, an alibi or evidence that suggests you could have not commit the offence because you were somewhere else at the time.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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