Diversion for Theft Charges in Ontario

The short answer

Diversion allows some people charged with theft to avoid a trial and a criminal conviction. You complete a task, such as community service or a charitable donation, and the Crown then withdraws the charge. In Ontario, diversion is most often offered for first-time, low-value thefts like shoplifting. It is a decision for the Crown rather than a right, so the way the request is made can make a real difference to the result.

How diversion works

1. The offer: The Crown decides whether to offer diversion, usually at or before the first court date.
2. Responsibility: You accept responsibility for what happened, but you do not plead guilty in court.
3. The task: You complete the agreed task within the time the Crown or the program allows.
4. The withdrawal: You provide proof of completion, and the charge is usually withdrawn at your next court date.

Diversion tasks can include community service, a charitable donation, repayment to the victim, a letter of apology or a short educational program. Ontario's adult diversion programs include the Direct Accountability Program, which is run together with community agencies.

Who may qualify

Diversion is more likely when you have no recent criminal record, the value of the property is low, there was no violence, weapon or breach of trust involved, and the property was recovered or the loss can be repaid. It is much less likely for large thefts, thefts from employers or repeat offences, although every case depends on its own facts.

What the Crown looks at

When deciding whether to offer diversion, the Crown usually reviews the facts in the police report, your criminal record if you have one, whether the property was recovered, and the views of the store or complainant. The Crown may also consider information that your lawyer provides about you.

That last point can make a real difference. A short package that shows your work, school, family situation and any steps you have already taken, such as counselling or repayment, can help the Crown see diversion as the right outcome for your case.

What diversion asks of you

• Accepting responsibility: You acknowledge what happened as part of the program, without pleading guilty in court.
• Completing the task on time: Missing a deadline can end the diversion and return the case to court.
• Staying out of trouble: A new charge during the process can cancel the offer.
• Providing proof: You give your lawyer or the program written proof that you have finished the task.

If you complete every requirement, the charge is withdrawn at your next court date.

If you do not finish

If you do not complete the task, the case goes back on track toward trial. The charge is not withdrawn, and the Crown may not be willing to offer diversion a second time. If something gets in the way, such as illness or a change in your work schedule, tell your lawyer right away, because extensions are sometimes possible when there is a good reason.

Why diversion matters

A withdrawn charge is not a conviction, which protects your record for employment, travel and immigration purposes. Police may still keep records and fingerprints from the charge, but you can usually ask the police service to destroy your fingerprints and photographs after a withdrawal. See our criminal records page.

Diversion compared with other outcomes

• Diversion: There is no plea, no finding of guilt and no conviction, because the charge is withdrawn.
• Peace bond: There is no plea and no conviction, but you must follow conditions for up to 12 months.
• Discharge: You plead guilty or are found guilty, but no conviction is entered, and the discharge stays in the national police database for 1 or 3 years.
• Conviction: You have a criminal record until a record suspension is granted by the Parole Board of Canada.

For most people, diversion is the strongest outcome available short of a full withdrawal or an acquittal at trial.

If diversion is not offered

Other options may still allow you to avoid a conviction. The Crown may withdraw the charge if the evidence is weak, or agree to withdraw it in exchange for a peace bond in some cases. If the case goes ahead, a discharge under s. 730 is often still possible, which means a finding of guilt without a conviction. See theft sentences in Canada.

The complainant's views

The Crown often asks the store or complainant whether they object to diversion, and their views can carry some weight. However, the final decision belongs to the Crown, not the complainant. A store's general policy of opposing every resolution does not prevent the Crown from offering diversion when the facts and your circumstances support it.

Diversion for young people

For people who were 12 to 17 at the time of the alleged offence, the Youth Criminal Justice Act requires police to consider warnings, cautions and referrals before laying a charge. Extrajudicial sanctions, which work much like adult diversion, are also available. See our youth criminal justice page.

What to do now

• Keep your first court date and your fingerprint date.
• Do not contact the store or complainant about the charge.
• Gather proof of your work, school, volunteering and any counselling you have started.
• Ask a lawyer to request diversion before your first court date if possible.

Diversion, employment and immigration

Because a completed diversion ends in a withdrawn charge, it does not create a criminal conviction that employers can see on a standard criminal record check. That makes diversion especially valuable for people who work in jobs that require background checks, such as health care, education or finance. For people who are not Canadian citizens, a withdrawal is also much safer than a conviction or even a discharge, although it is still wise to get immigration advice before accepting any resolution.

How we can help

We can ask the Crown for diversion, explain why you are a strong candidate and make sure the terms are fair. Call (647) 223-1980 for a free consultation.

Frequently asked questions