Theft Under $5,000 in Ontario

The short answer

Theft under $5,000 covers taking property worth $5,000 or less, and it is set out in s. 334(b) of the Criminal Code. It is a real criminal charge, and a conviction creates a criminal record that can affect your job, your travel and, for non-citizens, your immigration status. However, many first-time cases in Ontario end in diversion, a withdrawal or a discharge, and none of these outcomes is a criminal conviction. The steps you take in the first few weeks after the charge often decide which of these options the Crown will be willing to consider.

What counts as theft

Under s. 322(1), theft means taking or converting something that does not belong to you, fraudulently and without colour of right, while intending to deprive the owner of it, even for a short time. "Converting" means using property you already have in a way the owner never allowed, such as selling an item you were only permitted to borrow. "Colour of right" means an honest belief that you had a legal right to the property, even if that belief later turns out to be mistaken.

The offence is complete as soon as the item is moved with the intent to steal it (s. 322(2)). For example, placing an item in your bag while you are still inside a store can amount to theft, even though you have not yet walked past the checkout or reached the exit.

Theft under $5,000 covers far more than shoplifting, which is usually charged this way (see shoplifting and petty theft). Police also lay this charge in many everyday situations:

• An employee is accused of taking cash, supplies or small equipment from a workplace without permission.
• A person keeps a borrowed item and refuses to return it after the owner asks for it back.
• Roommates, partners or family members disagree about who actually owns certain belongings after a separation.

What the Crown must prove

What happens after you are charged

Most theft cases in Peel Region follow a similar path through the court system, and knowing the steps in advance can make the process much less stressful.

1. Release: Most people are released by police with an appearance notice or an undertaking, which lists a first court date and often a separate date for fingerprints and photographs. Missing either date is a separate criminal offence.
2. Conditions: Your release papers may tell you not to return to the store or workplace involved, or not to contact certain people. You must follow these conditions exactly until a court or the Crown agrees to change them.
3. First court date: Charges laid in Mississauga and Brampton are generally heard at the Brampton courthouse. Your lawyer can usually appear on your behalf and ask the Crown for disclosure, which is the evidence police have gathered against you.
4. Meeting with the Crown: After reviewing the disclosure, your lawyer can discuss diversion, a withdrawal or another resolution directly with the assigned Crown prosecutor.
5. Resolution or trial: If the case does not resolve, it is scheduled for trial in the Ontario Court of Justice, where a judge will hear the evidence.

Even when the Crown proceeds by indictment, the case remains with an Ontario Court judge because of s. 553 of the Criminal Code. As a result, there is no jury trial available for theft under $5,000.

The evidence in a typical case

The Crown's case usually relies on a combination of video footage from the store or building, statements from loss prevention staff or employees, inventory records, receipts or till reports, and anything you said to security staff or police.

Video evidence is often far less clear than people expect. It may not show exactly what was taken, when it was taken or who took it, and those gaps can matter a great deal when a judge decides whether the Crown has proven its case.

Penalties

If the Crown proceeds by indictment, the maximum sentence is 2 years in jail. If the Crown proceeds by summary conviction, the maximum is 2 years less a day, a fine of up to $5,000, or both (s. 787). There is no minimum sentence for theft under $5,000, which means the judge has a wide range of options.

Returning the item does not erase the offence, but it can help the outcome. The court can also make a restitution order under s. 738, which requires you to repay the owner for any financial loss the theft caused.

How these charges often end

• Diversion: You complete a task, such as community service or a charitable donation, and the Crown then withdraws the charge. See diversion for theft charges.
• Withdrawal: The Crown may withdraw the charge if there is no reasonable prospect of conviction based on the evidence.
• Discharge: You are found guilty, but no conviction is entered. An absolute discharge is removed from the national police database after 1 year, and a conditional discharge after 3 years, if you stay out of trouble (Criminal Records Act, s. 6.1).
• Conviction: For a first offence, the sentence is usually a fine or a period of probation rather than jail.
• Trial: The Crown must prove every element beyond a reasonable doubt, and the judge will acquit you if it cannot.

Common defences

• Honest mistake: You forgot an item at the bottom of your cart or picked up the wrong bag, without any intent to steal.
• Colour of right: You honestly believed you were entitled to the property, even if that belief was legally wrong.
• Identity: The video footage or witness accounts do not clearly show that you were the person involved.
• Charter issues: Police may have breached your rights during the arrest, search or questioning, which can lead the court to exclude evidence.

Effects beyond the sentence

A theft conviction can affect your life well beyond the courtroom. Theft is treated as a crime of dishonesty, so employers in retail, banking, care work and security often screen applicants for it. U.S. border officers can refuse entry to Canadians convicted of dishonesty offences unless they obtain a waiver. For temporary residents, such as international students and foreign workers, a theft conviction can lead to inadmissibility under Canadian immigration law.

What to do now

• Do not contact the store or the complainant about the charge, even to apologize or offer payment.
• Do not pay a civil demand letter or sign any document before you receive legal advice.
• Write down what happened while the details are still fresh in your memory.
• Keep every fingerprint date and court date listed on your release papers.

How we can help

We can ask the Crown for diversion at an early stage, review the evidence for weaknesses and work to protect your record. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.

Frequently asked questions