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Charged, or someone you know
A guilty plea leaves a record behind it, long after the fine is paid.
Theft Under $5,000. Usually Resolvable, Always Worth Advice
A theft charge is often a person's only contact with the criminal courts. This page explains what the Crown must prove, the routes that avoid a criminal record, and why a quick guilty plea is rarely the right move.
Section 322 of the Criminal Code requires proof of a fraudulent taking with intent to deprive. Absent-mindedness, a genuine mistake and an honest belief in a right to the property are all answers to a theft allegation.
Theft Charge Defence
5000$
Statutory Value Threshold
2Years
Maximum, Theft Under by Indictment
730CC
Discharge Provision
717CC
Alternative Measures Provision
Quick Answer
What should I do if I have been charged with theft under $5,000 in Toronto?
Do not give a written statement to store security or to police, and do not respond to any civil demand letter from the retailer. Keep your release paperwork and note your first court date. Speak with a lawyer before that date, because diversion and discharge options are usually decided at the Crown pre-trial and are far easier to secure with counsel involved.
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THE OFFENCE
What the Crown Must Prove
Theft is defined in section 322 of the Criminal Code. A person commits theft when they fraudulently and without colour of right take, or convert to their own use, anything with intent to deprive the owner of it, temporarily or absolutely. Section 334(b) sets the punishment where the value of what was taken does not exceed $5,000: it is a hybrid offence, punishable by up to two years imprisonment if the Crown proceeds by indictment, or by summary conviction. Where the value exceeds $5,000, section 334(a) makes it a straight indictable offence with a maximum of ten years.
The words that carry the weight are fraudulently, without colour of right, and with intent to deprive. Theft is not a strict liability offence. A person who walks out of a store having genuinely forgotten an item in the bottom of a cart has not committed theft, because the required intent is absent. A person who takes property honestly believing they are entitled to it has a colour of right, even if that belief turns out to be legally wrong. These are not technicalities; they are elements of the offence the Crown carries the burden of proving beyond a reasonable doubt.
Related charges often appear alongside theft. Possession of property obtained by crime is charged under section 354. Fraud under $5,000 falls under section 380(1)(b) and covers deceit-based conduct such as price-tag switching or refund schemes. Robbery under section 344 is a distinct and far more serious offence involving violence or threats.
CONSEQUENCES
Why a Theft Record Follows You
The sentence for a first theft under is often modest. The record is not. A theft conviction is an offence of dishonesty, and it is read that way by employers, professional regulators, licensing bodies, volunteer screening processes and immigration authorities long after the fine is paid. That is the real stake in these files, and it is why resolutions that avoid a conviction matter so much more than the size of any penalty.
Outcome
Finding of guilt
Conviction registered
What appears on a record check
Charge withdrawn
No
No
Nothing, once any local police records are addressed
Diversion completed, section 717
No
No
Nothing, once the charge is withdrawn
Peace bond, section 810
No
No
Nothing after the bond expires
Absolute discharge, section 730
Yes
No
Purged from the automated records one year after the decision
Conditional discharge, section 730
Yes
No
Purged three years after the decision, once probation is complete
Suspended sentence or fine
Yes
Yes
A criminal record, until a record suspension is granted
The purge periods for discharges come from section 6.1 of the Criminal Records Act, which requires the Royal Canadian Mounted Police to remove an absolute discharge from the automated criminal conviction records one year after the court decision, and a conditional discharge three years after. That is automatic. No application is needed.
DIVERSION
The Route Most First-Time Files Take
Section 717 of the Criminal Code permits alternative measures where a programme is authorised, the person accepts responsibility, and diversion is not inconsistent with the protection of society. In Ontario this most often runs through a direct accountability or diversion programme administered with the Crown. The usual requirements are some combination of a charitable donation, community service hours, a short educational or decision-making programme, restitution where something was not recovered, and a written apology or reflective statement. On completion, the Crown withdraws the charge.
1
Disclosure requested and reviewed
Counsel obtains the Crown brief, including loss prevention statements, security video and the value of the property. Nothing should be conceded before this.
2
Crown pre-trial
Counsel makes the case for diversion, addressing the value, the absence of a record, personal circumstances and any steps already taken.
3
Programme completed
Donation, community service and any course are completed and documented within the time the Crown allows.
4
Charge withdrawn
The Crown withdraws the charge in open court. There is no finding of guilt and no criminal record.
5
Records addressed
Where appropriate, a request is made to the police service for destruction of fingerprints and photographs taken on arrest.
Diversion is discretionary. Value, any prior record, whether the item was recovered, and the circumstances of the taking all affect whether it is offered. Where it is not, a discharge under section 730 is the next objective, and the court must be satisfied that a discharge is in the accused's best interests and not contrary to the public interest.
DEFENCES AND EVIDENCE
Not Every Theft Charge Should Be Resolved
Some theft charges should be fought. Identification from poor-quality security footage is a recurring problem. So is the reliability of loss prevention evidence where the officer did not maintain continuous observation, where the item was never actually recovered, or where the notes were made long after the fact. Where a citizen's arrest was made under section 494, the manner of the detention and any search may raise Charter issues under sections 8, 9 and 10(b).
Then there is intent, which is where honest cases are won. Distraction, medication effects, cognitive impairment, a genuine dispute about whether an item was paid for, and self-checkout errors are all real and all inconsistent with the fraudulent intent section 322 requires. The Crown does not have to disprove every innocent possibility, but it does have to prove intent beyond a reasonable doubt.
About the civil demand letter
Retailers sometimes send a letter demanding several hundred dollars to settle a civil claim. That letter is separate from the criminal charge. Paying it does not end the prosecution, and not paying it does not affect the criminal case. Do not respond to it, or to any request for a written statement, before speaking with counsel.
RELATED CHARGES
Where the Threshold Changes Things
The $5,000 line in section 334 is significant. Above it, theft becomes a straight indictable offence with a maximum of ten years, the accused elects the mode of trial under section 536(2), and the resolution options narrow considerably. Below it, the offence is hybrid and the Crown's election shapes the exposure. Value is assessed at the time of the offence and is a question of fact the Crown must prove, so where several items are aggregated to cross the threshold, or where a valuation is generous, the figure itself can be contested.
Employee theft raises a further dimension. Where the accused occupied a position of trust, section 718.2(a)(iii) makes abuse of a position of trust or authority a statutory aggravating factor. Where the allegation involves manipulation of records rather than simply taking goods, it may be charged as fraud under section 380 instead, or as theft by a person required to account under section 330. Employers frequently pursue civil recovery and termination in parallel with the criminal complaint, and those proceedings interact: a statement given to an employer during an internal investigation can find its way into the Crown brief.
Related offences that regularly accompany a theft charge include possession of property obtained by crime under section 354, mischief under section 430 where property was damaged, and trespass under Ontario's Trespass to Property Act, which is a provincial offence rather than a criminal one. Where a store has issued a trespass notice, returning to the premises is a separate provincial matter and should be avoided entirely while the criminal charge is outstanding.
AT COURT
What to Expect on Your Dates
1
The first appearance
Administrative. You confirm your identity or counsel appears for you, and disclosure is requested. Nothing is decided, no plea is taken and no evidence is heard.
2
Second appearance
Counsel confirms disclosure has been received and requests a Crown pre-trial date. If material is missing, a further request is made on the record.
3
Crown pre-trial
The substantive discussion. Diversion, withdrawal, a peace bond or a discharge are canvassed here, and this is where preparation makes the difference.
4
Resolution or trial scheduling
If the matter resolves, a date is set to complete it. If not, a judicial pre-trial is held and trial dates are fixed.
A designation of counsel filed under section 650.01 of the Criminal Code allows your lawyer to appear on your behalf for these administrative dates. For someone who cannot take repeated days off work, that is often the most immediately valuable thing counsel does. You must still attend personally for a plea, a trial or a sentencing.
One practical caution about timing. Diversion programmes have their own waiting lists and completion periods, so a matter that resolves by diversion may still take several months from start to finish. That is normal and it is not a sign that anything has gone wrong. What matters is that the requirements are completed and documented within the time the Crown allows, because an incomplete programme returns the charge to the ordinary stream.
MAKING IT RIGHT
Restitution and the Complainant
Where property was not recovered, or was damaged, restitution is frequently part of any resolution. Section 738 of the Criminal Code allows a court to order restitution to a victim for the replacement value of property lost, and restitution is also a standard component of a diversion agreement. Paying it early and voluntarily, through counsel, is one of the most effective steps available to someone hoping for diversion or a discharge, because it demonstrates responsibility in a concrete rather than a verbal way.
What should not happen is direct contact with the complainant. Where the complainant is a retailer, the loss prevention department is not the decision-maker on the criminal charge and communicating with them achieves nothing useful. Where the complainant is an individual, contacting them while a charge is outstanding risks a breach of a release condition and can be characterised as an attempt to influence a witness, which is a far more serious problem than the original allegation. Every communication should go through counsel.
Once a matter has concluded without a conviction, there is a final administrative step worth taking. Fingerprints and photographs taken at the time of arrest are retained by the police service unless destruction is requested. Where the charge was withdrawn, stayed, or resulted in an acquittal or a discharge that has been purged, an application for destruction can be made to the police service that took them. It is discretionary rather than automatic, and it is the difference between a clean file and a lingering entry that can surface on a broader record check years later.
ACTING FOR YOU
A Straightforward Process
Most theft under files follow a predictable path, and counsel can attend the administrative dates on your behalf under a designation filed under section 650.01, which keeps you at work rather than sitting in a courtroom. We obtain and review the disclosure, make the case for diversion or withdrawal, and where a resolution is not available we tell you honestly what a trial would involve.
Theft matters may be handled by Lexaltico LLP or referred to experienced criminal defence counsel within our LexKonnect consortium where that better suits the court or the schedule. Any referral arrangement is disclosed to you in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. The client's interests govern the choice of counsel.
Common Questions
Frequently Asked Questions
What should I do if I have been charged with theft under $5,000 in Toronto?
Do not give a written statement to store security or to police, and do not respond to any civil demand letter from the retailer. Keep your release paperwork and note your first court date. Speak with a lawyer before that date, because diversion and discharge options are usually decided at the Crown pre-trial and are far easier to secure with counsel involved.
Will I get a criminal record for shoplifting?
Not necessarily. Many first-time theft under charges in Ontario are resolved through diversion under section 717 of the Criminal Code, which ends in the charge being withdrawn with no finding of guilt. Where that is unavailable, a discharge under section 730 produces no registered conviction and is purged from the automated records after one or three years.
What is the maximum penalty for theft under $5,000?
Section 334(b) of the Criminal Code makes it a hybrid offence. If the Crown proceeds by indictment the maximum is two years imprisonment; on a summary conviction election the general maximum is two years less a day. In practice, first-time offences involving modest value rarely attract custody.
Do I have to pay the letter the store sent me?
That letter is a civil demand and is entirely separate from the criminal charge. Paying it does not end the prosecution and declining to pay does not worsen it. Speak to your lawyer before responding to it or to any request from the retailer for a written explanation.
Can a theft charge be withdrawn?
Yes. The Crown may withdraw where there is no reasonable prospect of conviction, or on completion of a diversion programme. Diversion typically involves a charitable donation, community service, a short course and restitution where the property was not recovered, and the charge is withdrawn in open court once the requirements are met.
What if I genuinely forgot to pay?
Section 322 requires a fraudulent taking with intent to deprive the owner. Genuine absent-mindedness, a self-checkout error or an honest belief that an item was paid for are inconsistent with that intent. The Crown must prove intent beyond a reasonable doubt, and these explanations are properly raised through counsel rather than in a statement to police.
Will a theft charge affect my job or professional licence?
A conviction for an offence of dishonesty is treated seriously by employers, regulators, licensing bodies and volunteer screening programmes. That is the main reason to seek an outcome without a conviction. Tell your lawyer about your profession and any regulator at the first meeting so the resolution can be shaped accordingly.
Can I get my fingerprints destroyed after the charge ends?
Often yes. Where a charge is withdrawn, stayed or results in an acquittal, you can apply to the police service that took them for destruction of the fingerprints and photographs. It is a discretionary administrative process, not a court order, and it should be done as a final step once the matter has concluded.
Book My 15-Minute Assessment
Talk to Us About Theft Under $5000
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If you contact us
If you are in danger
If you or a child are in immediate danger, call 911.
This website is not an emergency service. Enquiries sent through a form here are read during
business hours and a reply may take up to one business day.
Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
