Theft under $5,000 in Ontario

Facing a theft under $5,000 charge in Ontario can be overwhelming, especially when you do not know what comes next. This guide breaks down everything you need to know, from the charges and penalties to the legal defences that could apply to your case. You’ll learn about your rights, options for first-time offenders, and how programs like diversion, conditional discharges, and other alternative resolutions could help you avoid a criminal record. 

Pyzer Criminal Lawyers is a highly experienced criminal law firm in Toronto with extensive experience handling theft-related charges and the legal processes surrounding them. A criminal defence lawyer can make a real difference in how your case is resolved. The earlier you get legal advice, the more options you’ll have.

Key Takeaways

• Theft under $5,000 is a serious criminal offence regardless of the value of the item stolen.
• First-time offenders may qualify for diversion programs or a discharge, depending on the facts and their record.
• The Crown can proceed by summary conviction or indictment. That election affects the maximum sentence.
• A theft conviction can affect employment, travel, housing, immigration status, and family matters.
• Early legal advice can improve the odds of a withdrawal, diversion, or a non-conviction outcome.

Understanding Theft Under $5000 in Ontario

Theft is defined in Section 322 of the Criminal Code of Canada. “Under $5,000” is the punishment category in Section 334(b), which applies when the value of the property is $5,000 or less. This includes conduct such as shoplifting, petty theft, or taking property without permission.

The offence is considered a hybrid offence, meaning the Crown has discretion to proceed either by summary conviction or indictment, depending on the circumstances of the case. A summary conviction is typically used for less serious cases and may carry lighter penalties, while an indictable offence is more serious and can result in longer imprisonment.

The $5,000 threshold determines whether the allegation is theft under $5,000 or theft over $5,000. That value category affects the maximum penalty on indictment. Separately, the Crown’s election (summary conviction or indictment) affects the maximum penalty that applies in your case.

Regardless of the value of the property involved, theft under $5,000 is a serious criminal offence. A conviction can have significant legal and personal consequences, including fines, probation, or imprisonment.

“Colour of right” can matter in theft cases. If you honestly believed you had a legal right to the property, that belief can undermine the intent the Crown must prove.

What Happens if You’re Charged with Theft

If you are charged with theft under $5,000, police may require fingerprinting. You may also receive paperwork such as a Form 9 appearance notice or a Form 10 undertaking with a court date. Your paperwork may include instructions about fingerprinting and where to attend. You have the right to legal representation, and you should exercise this right as soon as you can.

If you fail to appear in court, the court can issue a bench warrant, and police can arrest you on that warrant. A lawyer can help you understand the process, request disclosure, and explore early resolution options such as diversion or a discharge, where available.

If the police arrest you, they must advise you of your right to a lawyer. When you are under arrest, you do not have to talk to the police. You should get legal advice before giving a statement. If you have been arrested or are being investigated for theft under $5,000, speak with a criminal defence lawyer as soon as you can.

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Penalties for Theft Under $5000 in Ontario

Under Criminal Code Section 334(b), theft under $5,000 carries different penalties depending on whether the Crown proceeds by summary conviction or as an indictable offence. For summary conviction, the maximum penalty is 2 years less a day in jail and/or a $5,000 fine or both. For indictable prosecution, the maximum penalty is 2 years in jail. The actual sentence depends on case-specific factors, including your criminal history, the value of items stolen, the nature of the theft, and your conduct when caught.

Importantly, a criminal record is not automatic in every case. Depending on the facts and your record, you may be eligible for diversion or a discharge. In some cases, the Crown may agree to withdraw charges after alternative measures are completed.

If you receive a discharge (absolute or conditional), the court finds you guilty but does not register a conviction. A discharge can still appear on some record checks for a period of time. For an absolute discharge, that period is generally one year from the date of sentence. For a conditional discharge, that period is generally three years from the date of sentence.

When sentencing, the court considers factors such as the value and circumstances of the offence, any planning or breach of trust, your prior record, proven loss and restitution, and your conduct after the incident.

Having a theft conviction can affect employment opportunities because many roles involve record checks, trust, or access to money, property, or vulnerable people. A theft conviction can also create travel and immigration issues, and it can be raised in certain family-law contexts where credibility, safety, or the best interest of the child is relevant.

Theft Under $5000 vs Theft Over $5000: Understanding the Differences

The main difference between theft under and theft over $5,000 is the value category and the maximum penalties that attach to that category. Both are hybrid offences, which means the Crown can proceed by indictment or summarily. 

For theft under $5,000, the maximum penalty on indictment is two years in jail. For theft over $5,000, the maximum penalty on indictment is ten years in jail. When proceeding summarily, both carry lower maximum penalties. 

The Crown will proceed by indictment if the facts of your case are more serious or if you have a history of committing similar offences. In cases involving theft over $5,000, an indictable prosecution is more likely when the circumstances are serious, such as grave harm to victims or large-scale theft. Car theft is not included in the under or over $5,000 categories because it is a separate crime in the Criminal Code (under Section 333.1).

First Offender Options: Diversion Programs & Discharges

If you are a first-time offender, you may have options to resolve the matter without a conviction, depending on the facts and your record.

Possible Defences to Theft Charges

The offence of theft is set out in Section 322(1) of the Criminal Code of Canada. To convict, the Crown must prove beyond a reasonable doubt that the accused fraudulently and without colour of right took or converted property, and did so with the intent to deprive the owner, or a person with a special property or interest in it, temporarily or absolutely.

Possible defences depend on the evidence in your case. Common defence themes include:

• Lack of Intent. To be found guilty of theft, the Crown needs to prove beyond a reasonable doubt that you: 1) committed the act of theft, and 2) that you intended to commit that act of theft. This means the Crown needs to prove you intended to take or steal property without permission and without lawful authority to do so. A defence may apply where you did not intend to deprive the owner (even temporarily), or where you honestly believed you had a right to take the property.

• Identity can be a defence if you are not the person who committed the alleged theft. For instance, if there is a video of the alleged theft, you might be able to argue that the person in the video isn’t you. If, on the other hand, there is no video of the alleged theft, you can argue that the police made a mistake identifying you as the alleged suspect. Corroborative evidence of where you were during the alleged theft will assist you in this defence. This includes an alibi or video evidence.

• Colour of Right. One of the requirements to be found guilty of theft is to act “without colour of right”. Colour of right usually means an honest belief in a legal right to the property, even if that belief turns out to be mistaken. For example, under an agreement, someone may take an item they think belongs to them. Even if that belief is later shown to be wrong, the person did not act dishonestly if the belief was genuinely held.

• Title to the Items in Question. Technically, you cannot steal something that is yours. If you have ownership of the item, it is not theft. However, even if you “take back” something that is yours from someone else, you can still be charged with theft if you took it from that other person fraudulently and without colour of right.

• Duress may apply where a person commits theft under a threat of immediate harm. If the accused reasonably believed that they or someone else would suffer death or serious bodily harm unless they committed the theft, and there was no safe way to escape, the law may excuse the conduct. That said, duress is a narrow defence and turns on factors like the seriousness of the threat, whether there was a safe avenue of escape, and whether the accused’s response was proportionate.

Necessity. The defence of necessity may apply where a person commits theft to avoid an immediate and serious danger. If the accused reasonably believed that theft was the only way to prevent significant harm, and the harm avoided outweighed the harm caused by the theft, the law may excuse the conduct. Necessity is a narrow defence and only applies in truly urgent situations where there were no reasonable legal alternatives.

Why You Need a Criminal Defence Lawyer for Theft Charges 

If you are facing criminal charges, contact a criminal lawyer as soon as you can. Early legal advice can help you understand your options and avoid mistakes that can hurt your case. A theft conviction can affect:

• Employment. A criminal record for theft will show up on background checks. Many employers will not hire someone with a theft conviction, and it can cost you a job you already have.
• Travel. Countries like the United States can deny you entry at the border if you have a criminal record, even for a minor theft conviction.
• Volunteering. Organisations that work with vulnerable populations require criminal record checks. A theft conviction will disqualify you from most volunteer positions.
• Renting a home. Landlords routinely run background checks. A theft conviction can make it difficult to secure housing.
• Family matters. In custody disputes, a criminal record can be used against you and may affect a court’s decision about parenting arrangements.
• Obtaining a mortgage. Financial institutions may view a theft conviction as a risk factor, making it harder to get approved for a mortgage.

A lawyer can request disclosure, assess the Crown’s evidence, and negotiate for outcomes such as diversion, withdrawal, or a discharge where appropriate. In some cases, the Crown may withdraw or stay charges, or the matter may resolve through diversion or another alternative measur If you are charged, a criminal defence lawyer can explain the allegation, the process, and the resolution paths that may be available in your circumstances. 

At Pyzer Criminal Lawyers, we represent clients facing theft and related charges. Contact us today for a free consultation.

Our Approach to Defending Theft Cases

Pyzer Criminal Lawyers brings over 23 years of experience in criminal defence, with a reputation for vigorous advocacy and an unwavering commitment to achieving the best possible outcomes for our clients. We navigate the criminal justice system with care and precision, ensuring our clients’ rights and interests are protected at every stage.

No two cases are the same. We focus on the facts, the evidence, and the resolution options that make sense for your situation.

Our primary objective is always to avoid a criminal record wherever possible. To work toward this goal, we conduct a thorough review of the evidence, request and analyse full disclosure, develop tailored defence strategies, and maintain clear, consistent communication with our clients. Above all, we prioritise individualised attention and compassionate representation throughout the process.

Case Results & Client Outcomes

How Common is Theft in Toronto?

In 2020, there were 37,695 reported cases of theft under $5000. Police charged a suspect in 6,343 of the cases.

Source: Toronto Police Service Public Safety Data Portal

Frequently Asked Questions About Theft Under $5000

We get asked a lot of questions about theft under $5,000 charges. Here are some of the most common ones and what you need to know.

Take Your Theft Under $5000 Defence Seriously

Even if you believe your theft charge is minor, it is still serious. A conviction for theft under $5000, regardless of the value of the item, will result in a criminal record. However, as discussed, outcomes like a discharge can help you avoid a conviction. 

Having a criminal conviction on your record can and will affect many aspects of your life. Long-term impacts on life include issues with employment, immigration, and travel. Call our theft defence lawyers at Pyzer Criminal Lawyers for a free case evaluation immediately if you have been arrested or charged with theft under $5000. We will advise you of your options and the next steps.