What You Need to Know About Theft Under $5000 in Canada
Theft is a criminal offence in Canada, and any theft of an item with a value less than $5000 is called “theft under $5000” in section 334(b) of the Criminal Code.
If the value of the items stolen is under $5000, the person will face either no jail time, or jail for up to two years. Two years is the maximum amount of jail time an offender will face if found guilty of theft under $5000. Car theft is not included in the under or over $5000 because it is a separate crime in the Criminal Code.
If you are found guilty of theft under $5000, the offence will appear on your criminal record. Having a criminal record in Canada will affect employment opportunities, because many occupations require applicants to undergo a criminal record check. A criminal record will also affect your ability to travel. For example, you can be denied entrance into the U.S. for having a criminal record. Also, if you ever have to deal with family law or child custody issues, a judge can consider your criminal record as evidence of your character. A criminal record can and will affect your life and future in many other ways. If you are charged with a criminal offence, contact a criminal lawyer at Pyzer Criminal Lawyers to help you avoid a criminal record. We will vigorously fight against your charges to limit the impact of the criminal accusations against you.
What is the Penalty for Theft Under $5000 in Ontario?
If you are convicted of theft under $5000, the judge will either sentence you to no jail time, or up to two years of jail time. The amount of jail time you will face depends on the facts of the case. For instance, if you have a history of similar allegations of theft, even if those previous charges were dropped, the judge will consider those as aggravating factors that will add more time on to your sentence.
Theft under $5000 is a hybrid offence, which means the Crown attorney decides whether to charge you by summary or as an indictable offence. If you are found guilty on summary conviction, you face a maximum of six months in jail. If you are found guilty on an indictable offence charge, you face a maximum of two years in jail.
When considering your sentence, the judge will also look at what was stolen, who you stole the items from, whether you were with anyone when you committed theft, your behaviour when you were caught, any mental or medical state you were under at the time, and any other factors relevant to your case.
What Is Theft?
Theft is under “Offences Against Rights of Property” in the Criminal Code, and defines theft is committed when:
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;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
(2) 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.
In other words, theft occurs when you take another person’s property without permission or entitlement to do so with an intent to:
Not give it back to the owner,
Use the stolen goods as a security,
Take the item from the owner without being able to return it in the same condition, or
Take the item from the owner and destroy it, making it unusable.
You also commit theft if you have an intention to steal and you move the item you are stealing, cause the item to move, or begin to cause the item to become moveable. You commit theft whether you steal from an individual person, or if you shoplift from a company, such as a retail store.
What Types of Theft Are There?
Broadly speaking, there are two distinct categories of theft in Canada, fraud over $5000 and fraud under $5000.
Car theft is a separate offence in the Criminal Code under section 333.1(1). If you are convicted of motor vehicle theft, you are liable to a maximum term of ten years in prison. If you are convicted of stealing a motor vehicle two or more times, the judge will sentence you to a minimum of six months in jail.
Theft Under $5000 vs Theft Over $5000 - Understanding the Differences
The main difference between theft over and under $5,000 is the severity of the penalty if you are convicted. Over$5000 has a maximum penalty of ten years in jail, whereas under $5000 has a maximum penalty of two years in jail. Theft over and under $5000 are hybrid offences, which means the Crown can proceed by indictment or summarily. The Crown will proceed by indictment if the facts of your case are more serious or you have a history of committing similar offences.
What Is Theft Under $5000?
Theft under $5000 is exactly that, theft of goods or cash where the total value is under $5000. Typically, allegations of shoplifting theft result in charges of theft under $5000. Theft under $5000 is still considered a serious criminal offence. Whether you steal an item for one dollar, or $4,999, it is still considered theft in Canada, and “Theft Under $5000” will appear on your criminal record. However, the price of the item is a factor the Crown and judge will take into consideration when assessing how serious your case is.
What Is Theft Over $5000?
Theft over $5000 is also, exactly that. Theft of goods or cash where the total is over $5000. The Crown has discretion to charge theft over $5000 as an indictable offence, or as an offence punishable on summary conviction. The Crown will likely proceed with an indictable offence when the circumstances surrounding the alleged crime are serious and severe, for instance if there were victims involved in the theft.
Typically, the court system treats theft over $5000 more serious than theft under $5000.
What are Possible Defences to Theft?
In any individual case, the outcome will depend on the specific facts and circumstances of your matter. Contacting a criminal defence lawyer right away is the first thing you should do if you are charged with theft. Possible defences that might be available against a criminal conviction for theft include:
Lack of Intent: in order to be found guilty of theft, the Crown needs to prove beyond a reasonable doubt you 1) committed the act of theft, and 2) that you intended to commit that act of theft. This means that the Crown needs to prove you intended to take or steal property without permission and without lawful authority to do so. Therefore, a possible defence to theft is that you did not intend to steal an item, or that you accidentally took possession of something you did not mean to.
Identity: Identity can be a defence if you are not the person who committed the alleged theft. For instance, if there is 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 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.
Color of Right: one of the requirements to be found guilty of theft is to act “without color of rights”. Therefore, a possible defence is if you acted “with color of rights”. Acting with color of rights is when you took the item because you honestly believed you were allowed to take it.
Title to the Items in Question: technically, you cannot steal something that is yours. 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 color of right.
Theft is a serious criminal offence, and you should hire a criminal lawyer to help you argue against a criminal conviction and to navigate the legal system. Contact a lawyer as soon as you can if you have been charged with theft, or if you think you are being investigated for theft. Pyzer Criminal Lawyers are experts in criminal law who vigorously fight for the best outcome in your case so that you do not have a criminal record. If you need a defence lawyer for fraud and theft, call us right away. We will explain your charges and develop the best legal defence.
The best outcome is for the Crown to withdraw, which is the same as drop, the criminal charges against you. If the Crown drops the charges, the legal proceedings against you are over and you avoid having “Theft Under $5000” on your criminal record.
Even if the Crown doesn’t drop the criminal charges against you, there are several other options. Your criminal defence lawyer can negotiate with the Crown a way for you to accept responsibility for your actions without being found guilty and without having a criminal record. For instance, the Crown might agree that having a criminal conviction on your criminal record is not in the best interest of the public, and instead determines alternative measures are appropriate for your case. Measures will vary depending on your case, but some common examples include counselling, community service, writing a letter of apology to the victim, keeping the peace and being of good behaviour. If you fail to abide by any of the conditions, however, you can be charged for breaching your court orders and sent to jail.
At Pyzer Criminal Law, we have the experience and expertise to defend your rights against any criminal offence so that you don’t have a criminal record. Contact us today for a free consultation.
Additional Aggravating Factors for Sentencing
Once you have been found guilty of theft, the judge then has to determine the appropriate sentence. Aggravating factors are characteristics or circumstances that work against you and therefore may lead to a longer sentence. If you are convicted of fraud under $5000, during sentencing the judge will consider aggravating factors including:
Your prior criminal record. This includes any previous convictions, and any prior warnings and charges, even if the charges were withdrawn
Whether other criminal charges are pending against you
The total value of the item(s) you stole
Who you stole from
How you acted when you were caught by store security or police
Whether you were under any mental or medical state
Why you stole
Any other personal characteristics that may be relevant
What is Petty Theft?
In Canadian criminal law, there is no official offence for “petty theft”. There are only the two main categories of theft, theft under $5000 and theft over $5000. Petty theft is a term used in some U.S. states and is used for thefts with a smaller magnitude or that are less serious. In that sense, theft under $5000 in Canada would be equivalent to “petty theft” as it’s used in some areas in the United States.
What Happens if I am Charged with Theft Under $5000?
If you are charged with theft under $5000, the police have the power to fingerprint you. They will either take you to the police station to get your fingerprints right away, or they will issue you a Form 9 which is a document ordering when you must appear in court. The police may also issue a Form 10 with a date to appear in court. If you fail to appear in court on the date stated on the Form 9 or Form 10, the police have the power to find you and arrest you, whether at your work or house.
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, but you have to give them your name if they ask.
If you have been arrested or are being investigated for theft under $5000, call an experienced theft lawyer as soon as you can. We will help navigate you through the court process, and advise you of the best legal strategy to help you avoid a criminal record.
Even if you believe your theft charge is a minor theft, for instance because the item doesn’t have much value, it is still a serious charge because theft under $5000 will appear on your criminal record regardless of the price being $5 or $4990. Having a criminal conviction on your record can and will affect many aspects of your life. Call a criminal lawyer at Pyzer Criminal Lawyers for a free case evaluation immediately if you have been arrested or charged with theft under $5000 and we will advise you of your options, and what the best next step is.
Summer Student and JD Candidate
Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.
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