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I mentioned in a previous question, when I moved out I accidentally took something that wasn't mine and returned it. Out of curiosity could this be considered theft? What if someone returns something before the owner even realizes it's gone? What if the owner never even realizes it's gone?

In Canada, theft requires "A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable." (source) so does that mean if the defendant claimed it was an accident the plaintiff would have to prove otherwise?

In practice, do thefts smaller than a certain amount usually not go to court? For example if someone steals a coke can from a store, would they really get sued in court?

Also what if someone accidentally steals something consumable. For example you rent a house with a garage and filled up your car with a tank of gas but realized the landlord had an identical one to your own. Would this be an offence, and could you actually be taken to court?

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I'm writing as an American, and a non-lawyer, so I'm assuming that the relevant U.S. and Canadian laws have commom roots in British common law.

"Intent" is the critical element here. The fact that you returned the item voluntarily militates against intent. The party would have high burden or proof to prove otherwise, especially if this was a one-time incident with no "pattern" (unlike the example of ten picked purses with $1,000). As a practical matter, people will likely be grateful enough to get the item back as to not go to the trouble of filing a case in court that they might not win. The main exception I can think of is if the store owner had a grudge against you (e.g. you stole his girlfriend).

In the example with the gasoline and identical containers, again, the requisite intent is lacking.

If you really want to be safe, ask/hire a lawyer to return the item for you, and hide behind attorney-client privilege.

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    But what if you brought the girlfriend back in good condition? – Tim Lymington Oct 30 '17 at 9:05
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As per §322 of the Criminal Code of Canada: (emphasis mine)

Theft

322 (1) Every one 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

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

To be charged is one thing. You can be charged for something that you didn't actually commit. However, to be found guilty of theft in a court of law is another thing. Just because you were charged, doesn't mean that you are convicted of the crime.

As per the Criminal Code, two things need to be proven: that you did commit the actual act of theft, and that you had the intention as well to commit. In your case, the latter is missing.

Not all theft cases need to necessarily go to court. It's important to look at all the circumstances of the crime, and to look at what other options are available. If the stolen property is restored (such as by giving the object back, or by repaying the cost of fuel in your 2nd case), then no charge necessarily needs to be laid. In these cases, there was no damage to the person, or to the public. The cost of the property can also be factored in as a circumstance. 2 dollar chocolate bar? That's minor. A purse snatcher that takes 10 purses with a combined value of 1000 dollars? That's pretty darn serious.

If the person was a youth, then the person may receive a formal police warning, or a Crown Caution, which is essentially a big warning. Police warnings are also often given to adults.

You must also ask, did the crime committed have a criminal nature? Then yes, charges can, and will likely be laid. Then, the court process will start. This will only be done when it is in the interests of the public, and (at times) the interest of the accused to have charges laid.

  • Does it need to be proven the theft was intentional, or to be found innocent is the burden on the defendant to prove the theft was unintentional? – MrMurphy Jul 28 '16 at 6:10
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well as per indian definition it is "Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

To answer your queries n practice, do thefts smaller than a certain amount usually not go to court? For example if someone steals a coke can from a store, would they really get sued in court? No it will not be sued in court as there is writ which can be invoked for small things

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