Markham Theft Lawyer. Theft Under $5,000, Shoplifting & Theft Over $5,000

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Most Markham theft files do not start at a police station, they start in a store's back room. A loss-prevention officer stops you past the last point of sale, walks you to a security office, and calls York Regional Police. What happens over the next few hours, and the off-ramps your lawyer opens in the weeks that follow, usually decide whether one bad moment follows you for years. You are presumed innocent, most first allegations have lawful exits, and this guide walks the whole pipeline, from the mall office to the Newmarket courthouse, stage by stage.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Updated July 2026.

Stage 1. In the Store: Loss Prevention and the Citizen's Arrest

Markham is one of Canada's most diverse cities and one of its busiest retail markets. Its shopping landmarks. CF Markville, Pacific Mall, First Markham Place and the big-box plazas along its main corridors, run professional loss-prevention programs, and that is why the typical Markham theft file begins not with a police officer but with a plain-clothes loss-prevention (LP) officer who has been watching on camera and stops a shopper past the point of sale.

The legal power being used in that moment is the citizen's arrest. Under s. 494 of the Criminal Code, the owner of property, or a person authorized by the owner, which is what an LP officer is, may arrest without warrant a person found committing a criminal offence on or in relation to that property. Parliament broadened the power in 2012 through the Citizen's Arrest and Self-defence Act, so the arrest may also be made within a reasonable time after the offence is committed where it is not feasible for the police to make it. Two strict limits travel with the power: the person arrested must be delivered to a peace officer forthwith, and only reasonable force may be used.

Those limits matter to the defence. Was the arrest actually based on someone observing an offence in relation to the store's property, or on a hunch and a profile? How long were you held in the back room before York Regional Police arrived? Were you searched, and by whom? Was force used, and how much? Everything that happens in the LP office is evidence, and sometimes it is the store's conduct, not yours, that becomes the story of the case.

Stage 2. York Regional Police: What Happens at 5 District

Markham is policed by York Regional Police, and the station that matters for a Markham theft arrest is #5 District at 8700 McCowan Road, which polices Markham together with Whitchurch-Stouffville. Patrol officers respond to the store, take over custody from loss prevention and decide what happens next; follow-up work, multi-incident allegations, workplace files, identity questions, is handled by the #5 District Criminal Investigations Bureau. YRP's non-emergency line is 1-866-876-5423.

For most first-time, lower-value allegations you will not spend the night in a cell. The realistic paths are two. Most people are released at the scene or the station on an undertaking: a release document with conditions that almost always include a no-go term banning you from the store, often the entire mall or plaza, plus a date at the Newmarket courthouse weeks away. Where police have concerns, alleged breaches, outstanding charges, organized-retail-theft allegations, you can instead be held for a bail hearing in Newmarket. If that is happening to someone you love, our Markham bail lawyer guide explains how a York Region bail hearing works and how to prepare to act as a surety.

Expect fingerprints and photographs to be taken as part of processing. They do not automatically disappear if the case ends well: like most of YRP's public-facing services, which now run largely online, from incident-reporting portals to records services on yrp.ca, record checks and fingerprint-destruction requests are processed through defined channels, and applying to destroy prints and photos after a withdrawal, diversion or discharge is a routine final step we build into every retainer.

Stage 3. The Charge on Paper: What Section 322 Actually Alleges

Whatever the store's incident report says, the criminal allegation is defined by s. 322 of the Criminal Code. Theft is committed by a person who fraudulently and without colour of right takes, or converts to their use or the use of another person, anything, with intent to deprive the owner of it, temporarily or absolutely. Three ideas inside that definition decide real cases:

• Fraudulently. The taking must be intentionally dishonest. A distracted parent who walks out with an item under the stroller, or a self-checkout customer who mis-scans one item among thirty in the chaos of bags and payment screens, has not necessarily acted fraudulently at all. Intent is the whole game.
• Without colour of right. If you honestly believed you were entitled to the property, there is no theft, even if that belief turns out to be mistaken. This defence gets its own section below.
• Intent to deprive. Even a temporary deprivation counts, so planning to return the item is not automatically an answer, but the Crown must still prove the intent existed at the moment of the taking, beyond a reasonable doubt.

Two technical points catch people by surprise. First, the offence is complete very early: under s. 322(2), theft is committed the moment the thing is moved, or begins to be caused to move, with the required intent, the Crown does not need to show you left the store. Second, motive is legally irrelevant: s. 322(4) confirms it does not matter whether the taking was for gain. Stress, grief, medication and personal crisis sit behind a remarkable number of shoplifting files; that context matters enormously when negotiating the exit, but it is not, by itself, a defence, which is exactly why the two stages of the work (liability first, resolution second) must both be done properly.

Under $5,000 or Over $5,000: Penalties, and the Charges That Ride Along

The Crown does not charge shoplifting; it charges theft under $5,000 or theft over $5,000, and s. 334 of the Criminal Code sets the punishment by value. Both branches are hybrid offences, the Crown chooses between the indictable route and the summary route:

Charge	Crown election	Maximum penalty
Theft not exceeding $5,000, s. 334(b)	Hybrid	By indictment: up to 2 years. By summary conviction: up to 2 years less a day and/or a $5,000 fine (the general ceiling in s. 787).
Theft over $5,000, or theft of a testamentary instrument at any value, s. 334(a)	Hybrid	By indictment: up to 10 years. By summary conviction: up to 2 years less a day and/or a $5,000 fine.

Real-world sentences for first offences sit far below those ceilings, that is what diversion, discharges and negotiated withdrawals exist for, but the maximums drive everything structural about the case: the gravity of the record, the immigration exposure, and how hard the file has to be fought.

Theft rarely travels alone. The most common companion count is possession of property obtained by crime (s. 354), knowingly possessing property derived from an offence, which mirrors theft's penalties through s. 355: up to 10 years by indictment over $5,000, up to 2 years under, with the same summary option. In retail files the same merchandise often grounds both counts; in resale and online-marketplace files, the knowledge element is the battleground. Where the allegation is that you took money or property you handled for someone else, the Code's deemed-theft provisions take over: s. 330 (theft by a person required to account) and s. 332 (misappropriation of money held under direction), and the Supreme Court confirmed in R. v. Skalbania that an intentional misappropriation supplies the mental element. Where the alleged victim is your employer, sentencing law adds weight: abusing a position of trust or authority is a statutory aggravating factor under s. 718.2(a)(iii), which is why workplace files need early, careful handling, often alongside employment advice. And when a store alleges price-tag switching, refund abuse or self-checkout manipulation, dishonesty counts can be laid under the fraud provisions instead of or alongside theft, our fraud under $5,000 guide explains how those charges work and how they resolve.

Stage 4. The Newmarket Courthouse: Where Every Markham Theft File Goes

There is no criminal courthouse in Markham. Every criminal charge laid anywhere in York Region, a low-value shoplifting allegation from a Markham mall or a six-figure employee-theft file, is prosecuted at the consolidated courthouse at 50 Eagle Street West, Newmarket: home of the Ontario Court of Justice for the region and, in the same building, the Superior Court of Justice for the rare theft matter that proceeds to a jury. For a Markham resident that means one building north of the city handles every stage of the case, from first appearance to trial.

The practical rhythm of an out-of-custody theft file looks like this. A first appearance, administrative, not a trial, followed by case-management appearances that in Newmarket now commonly proceed virtually, over the court's video platform; the courthouse also runs a dedicated out-of-custody plea court. In parallel, your lawyer requests and reviews disclosure, the Crown's constitutional duty under R. v. Stinchcombe to hand over the fruits of the investigation, which in a retail file means the CCTV footage, the LP officer's notes and incident report, receipts and till records, photographs of the merchandise and any statements. Then comes the Crown pre-trial: the structured conversation with the prosecutor where positions are exchanged and the realistic outcome, diversion, withdrawal, a survivable plea, or a trial date, starts to take shape.

Two local features work in a Markham client's favour. First, routine appearances rarely require you personally: counsel can attend, or the appearance proceeds virtually, so the case does not consume your work and school calendar with drives up Highway 404. Second, the courthouse serves one of Canada's most diverse regions and operates accordingly, interpreters can be arranged for proceedings and French-language services are available, so the client, and the family following the case, actually understand what is happening. Legal Aid Ontario duty counsel are available at the courthouse for those who qualify, but a theft charge that touches immigration status, employment or a professional designation deserves dedicated counsel from day one.

The Exits: Diversion, Discharges, Withdrawal, and Trial

Defending a theft charge is not only about winning a trial a year from now; it is about opening the earliest acceptable exit. In rough order of preference:

• Diversion. Ontario Crown offices frequently agree to divert low-value, first-offence theft: you complete community-based accountability, programming, community service, a donation, counselling, and the charge is withdrawn or stayed. There is no single statutory theft-diversion program; what is offered varies by courthouse and is approved case-by-case by the Crown, so whether your Newmarket file is a diversion candidate is assessed on its own facts. Positioning matters: a file arrives at the Crown pre-trial either packaged for diversion, background, context, counselling already underway, restitution addressed, or not.
• Discharges. If a plea becomes the right path, s. 730 of the Criminal Code lets the court grant an absolute or conditional discharge where that is in your interest and not contrary to the public interest. The result is a finding of guilt but no conviction, the statute says you are deemed not to have been convicted. Theft qualifies: it carries no mandatory minimum and is not punishable by 14 years or life.
• Withdrawal after negotiation. Weak identification, equivocal video, an unlawful loss-prevention detention, missing continuity, a complainant who will not attend, files with real problems can end with the Crown withdrawing outright, sometimes on terms.
• Trial. When the Crown will not move and the defence is real, you run it. Theft trials at Newmarket are usually compact, document-and-video cases, which makes preparation, frame-by-frame video review and disciplined cross-examination of LP witnesses, decisive.

The order is deliberate. Every step down the list costs more time, money and risk; every step up preserves more of your future. Early retainer is what keeps the top of the list available.

Defences That Actually Work in Theft Files

Colour of right

Section 322 only captures takings that are fraudulent and without colour of right, and s. 429(2) of the Criminal Code expressly preserves colour of right as an answer to property offences. Colour of right means an honest belief that you were entitled to the property. The belief does not have to be reasonable, and it does not have to be legally correct, it has to be genuinely held, and it can grow out of a mistake about facts or about civil rights such as ownership, debt or an agreement (the leading modern authority is R. v. Dorosh). Property disputes between former partners, roommates, family members and business associates, and employer-employee fights over expenses, equipment and commissions, are classic colour-of-right territory: what looks like theft on an information is often a civil disagreement wearing criminal clothes.

No fraudulent intent

Shoplifting allegations are built on inference: loss prevention watched movement on a camera and inferred a dishonest mind. Distraction, children, phone calls, medication, exhaustion, crisis, honest self-checkout scanning errors, items set in a bag or under a cart and genuinely forgotten: these fact patterns support reasonable doubt on the fraudulent-intent element, and they are far more common than incident reports admit. The Crown must prove dishonesty at the moment of the taking beyond a reasonable doubt; a plausible innocent explanation, properly developed in cross-examination, is often enough for that burden to fail.

Identity and continuity

Mall cases stand or fall on video. Who is actually on the CCTV, and is the person stopped the person recorded? Was the merchandise recovered, catalogued and traced item-by-item, or is the continuity of the exhibits a chain with missing links? Multi-incident allegations, where a store attributes a series of past thefts to the person stopped once, are especially vulnerable: each incident needs its own proof, and cross-store identification evidence is frequently much weaker than the summary in the police synopsis suggests.

Charter breaches

A loss-prevention detention that drags on before police are called, a search that went further than the law allows, a statement taken without proper rights, unreasonable delay getting the case to trial: where the conduct of state actors crossed a constitutional line, the remedy can be the exclusion of evidence under s. 24(2) of the Charter, applying the framework from R. v. Grant, and in delay cases a stay of proceedings. What happened in the back room, the cruiser and the interview room is always worth the forensic look; theft files are won on those details more often than on grand theories.

The Civil Demand Letter: Do You Have to Pay?

Weeks after a shoplifting stop, a letter often arrives from a law firm acting for the retailer, demanding several hundred dollars as civil recovery for security and administrative costs. Two separate systems are at work here, and confusing them is expensive. The letter is a civil claim: it is not the criminal case, it does not come from the Crown or the police, and, as Ontario youth-law clinic Justice for Children and Youth has long explained, simply receiving a demand letter creates no obligation to pay. Paying it will not make the criminal charge go away, and refusing to pay it does not create a criminal problem.

Our advice in almost every case is the same: do not respond, do not pay, and above all do not send the retailer an apology or an explanation, anything you write can find its way into the prosecution file. Bring the letter to your lawyer, let counsel decide whether it needs any response at all, and keep the effort where it changes your life: the criminal exit, diversion, withdrawal, discharge, not the store's invoice.

Organized Retail Theft: York Region's Enforcement Climate

Retail theft is an active enforcement priority in York Region, and Markham files are read against that backdrop. In summer 2026, York Regional Police publicly announced Project Wholesale, a proactive enforcement initiative against organized retail theft run by the #1 District Criminal Investigations Bureau in Aurora and Newmarket, running from June 1 to September 1, 2026. Project Wholesale is not a Markham operation. Markham is policed by #5 District, but it shows precisely how the region's retailers, loss-prevention departments and police are approaching retail theft this season: proactively, in coordination, and with charges rather than warnings. A Markham store that presses charges over a single blouse is operating inside that climate.

The phrase organized retail theft also changes what a file weighs. Allegations of group coordination, resale of stolen merchandise, repeat visits across stores, or a series of incidents attributed to a crew tend to arrive as multiple counts, often with possession-of-property counts layered on, and they are treated more seriously at every stage: release conditions, Crown screening position and sentencing position. If your disclosure references a project, a pattern or intelligence from other stores, the defence has to be built for it: attribution (which person, on which date, in which store), continuity of the merchandise, and the reliability of cross-store identification all become central battlegrounds. The distance between an organized-retail-theft theory and one over-inferred afternoon at a mall is, in our experience, often the whole case.

Collateral Consequences: Immigration, Employment and Your Record

Immigration. For non-citizens, the $5,000 line in s. 334 is a fault line. Theft over $5,000, like possession over $5,000, carries a 10-year maximum, and a conviction for an offence punishable by a maximum of at least 10 years can amount to serious criminality for a permanent resident under immigration law. For foreign nationals the exposure starts lower: because hybrid offences are treated as indictable for immigration purposes, even a theft under $5,000 conviction can ground inadmissibility. None of this is automatic, and every situation is different, but if your status in Canada is anything other than citizen-secure, say so at the first meeting, because the file must then be run to protect both the criminal and the immigration outcome. Resolutions that end without a conviction, diversion, withdrawal, discharge, are often precisely the point.

Employment and volunteering. A theft allegation is a dishonesty allegation, and for many clients the background-check consequences bite harder than any penalty: retail and finance roles, healthcare, education, security clearances and every position of trust. Outcomes without a conviction exist exactly to keep records survivable. What shows on which kind of check, and for how long, depends on how the case ends, we walk every client through that before any decision is made, not after.

The record cleanup. The end of the court case is not the end of the file. After a favourable outcome, applying for destruction of fingerprints and photographs. York Regional Police handles record checks and fingerprint-destruction requests through its established channels, is the housekeeping step that makes the result real on future checks. We diarize it in every theft retainer.

Under 18 and Caught Shoplifting in Markham

When the person stopped is 12 to 17, the whole pipeline changes lanes. The Youth Criminal Justice Act governs, and the case proceeds in youth court at the same Newmarket courthouse, the province's courthouse listing includes a dedicated criminal-youth court there. The YCJA presumes that out-of-court measures are adequate for a first non-violent offence; a completed extrajudicial sanctions program ends in the charge being dismissed; and youth records seal by operation of law after fixed access periods, with no pardon application needed. Parents receive formal notice of an arrest, young people have enhanced rights around statements, and the worst mistake a family can make is letting a frightened teenager just explain to store security or police before getting advice. If your teen has been stopped in a Markham store, call the same day, the earliest decisions matter most, and our Markham criminal defence team handles youth files with the discretion they require.

Why Kazandji Law for a Markham Theft Charge

Kazandji Law defends theft, shoplifting and possession allegations across York Region from our Thornhill office at 7191 Yonge Street, Suite 310, minutes from Markham and purpose-placed for Newmarket court work, supported by our Toronto headquarters at 180 John Street, Unit 320, and offices in North York and Oakville. Founding partner Fadi Matthew Kazandji personally handles the negotiations that decide theft files, diversion positioning, Crown pre-trials, withdrawal discussions, and the firm's approach is built around the pipeline this page describes: intervene early, protect the record, and keep every exit open.

• Free, confidential consultation, 647-588-3234, with same-week movement when a court date is close.
• Virtual Newmarket appearances handled by counsel wherever possible, so your work and school schedule survives the case.
• Defence strategy that protects immigration status, employment checks and professional licensing from the first meeting.
• Deep familiarity with retail-theft evidence: loss-prevention reports, CCTV continuity, civil demand letters and organized-retail-theft allegations.
• One firm for the whole family file, adult, youth and bail matters across York Region and Toronto.

Facing a theft allegation downtown instead? Our Toronto theft defence lawyer guide covers the same Criminal Code provisions as they play out at Toronto's courthouse, the statute is national, but the pipeline is local, and this page is the York Region version.

Markham Theft Charges. Frequently Asked Questions

This page is legal information for people facing theft-related charges in Markham and York Region, it is not legal advice, and reading it does not create a lawyer-client relationship. Criminal Code provisions summarized here (including ss. 322, 330, 332, 334, 354, 355, 429, 494, 730 and 787) were checked against the federal Justice Laws consolidation, and court and police details against Ontario, York Region and York Regional Police sources, as of July 2026; the law, local procedures and enforcement initiatives change, and how any of this applies depends entirely on the facts of your case. For advice about your situation, call Kazandji Law at 647-588-3234.