Take motor vehicle without consent (s. 335) Charges in Canada: Offences, Defences, Punishments

Take Motor Vehicle without consent  falls under Section 335 of the Criminal Code of Canada. It prohibits a person from taking a motor vehicle that is the property of another person, without consent.  Take motor vehicle without consent differs from theft in that the accused does not intend to deprive the owner of their property and convert it to their own. Rather, take motor vehicle without consent requires the accused only had the intention to use or drive the vehicle, perhaps for a brief period of time only.

Take Motor Vehicle without consent is a summary conviction offence.

Examples

An example of a charge of Take Motor Vehicle without consent may include the following:

• A child took a vehicle belonging to their parents without their consent (often referred to as “joyriding”).
• A roommate or acquaintance of a person while access to vehicle keys took their vehicle and drove it for a short period of time without their consent.

Defences

The defences available to a charge of Take motor vehicle without consent are entirely dependent on the facts of your case.

However, some defences to a charge of Take motor vehicle without consent may include:

• The accused did not have knowledge that the registered owner of the vehicle had not given consent, perhaps was relying on the hearsay of a third party
• The accused reasonably believed that the owner of the vehicle had given consent
• The courts accept a defence of intoxication, therefore the accused was unable to for the specific intent required to convict.

Punishment

A charge of take motor vehicle without consent is a summary conviction offence, therefore the maximum penalty is up to six months in jail or a fine of up to $5000.

Overview of the Offence 

According to s. 355 (1) of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of Take Motor vehicle without consent under s. 335 is established by proof, beyond a reasonable doubt, of the following:

• The accused took control of an operated a motor vehicle, without obtaining prior consent from the owner of the vehicle

The Guilty Mind (Mens Rea)

The mens rea for a charge of Take motor vehicle without consent under s. 335 includes proving, beyond a reasonable doubt, that:

• The accused knowingly took the motor vehicle, knowing they did not have the consent of the owner.

Defences

How to Beat a Charge of Take Motor Vehicle without consent

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a charge of Take Motor vehicle without consent:

Factual innocence

A strong defence against a Take Motor vehicle without consent charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support the charge.

Lack of Intent/Mistake

If you can show that you were never seeking to commit the offence of Take motor vehicle without consent, this may be a defence. For you to be convicted of Possession of prohibited or restricted weapon with ammunition, the crown must prove the elements of the offence beyond a reasonable doubt

Identity

Depending on the circumstances of your case, a possible defence to a take motor vehicle without consent charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed the prohibited acts.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than six months, and a fine of up to $5000.

Frequently Asked Questions  

What does Take Motor vehicle without consent mean?

Take Motor vehicle without consent under section 335 of the Criminal Code of Canada pertains to the taking of a motor vehicle without the consent of the owner. It is commonly referred to in Canada as “joyriding”. A prosecutor must prove that the accused’s intention was to driver, use, or navigate and operate the vehicle without first obtaining consent from the owner..

Is Take vehicle without owners consent an indictable offence?

No, take vehicle without owner’s consent is a summary conviction offence.

Can you go to jail for Possession of prohibited or restricted weapon with ammunition?

If you are convicted of Take vehicle without owner’s consent, the maximum punishment is six months imprisonment. Therefore, there is a possibility that you can go to jail if convicted.

Published Decisions  

R v. Lafrance 1973 CanLii 35 (SCC)

The accused was drinking with some friends, and sought to return a vehicle his friend had driven from a motel parking lot the night before back to its original location. The accused was stopped by police en route, and charged accordingly. The accused was acquitted at trial on the basis of his intention to return the car, which later resulted in the matter being brought to the Court of Appeal.

You can read the full decision here.

 R v. H. (P.), 2000 CanLII 5063 (ON CA)

The accused was charged with being the occupant of a motor vehicle taken without consent contrary to section 335 of the Criminal Code. This resulted from a stolen vehicle (from Toronto) driven to the York Region, where the accused was an occupant of the vehicle. Shortly after, a Jeep was stolen in York region, at which time police located the accused as a rear seat occupant of that vehicle. The accused appealed based on the charge of section 335 relating to occupancy. The courts upheld the constitutionality of section 335, and that it does not infringe upon ss. 7 or 11(d) of the Charter.

You can read the full decision here.

R v. Commodore 1991 CanLII 12024 (MB PC)

The accused was charged with taking a motor vehicle without the consent of the owner, after taking the vehicle and subsequently getting into a collision/accident. The accused was a sibling of the owner, and they reside together at the same residence. The accused testified to being intoxicated to the point he did not recall what had occurred. The accused was ultimately acquitted by the judge who, although was satisfied beyond reasonable doubt that the accused took the vehicle without the consent of the owner, that there was reasonable doubt as to whether the accused was capable of forming specific intent to drive required for conviction due to his condition from alcohol intoxication.

You can read the full decision here.

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