Theft Charges in Ontario: Defence Lawyers from Shoplifting Stops to Theft Over $5,000

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Theft, under section 322 of the Criminal Code, is taking or converting anything, fraudulently and without colour of right, with intent to deprive the owner of it, even temporarily. The offence is complete the moment the item moves with intent to steal. You do not need to leave the store, keep the thing, or sell it. Kazandji Law defends theft charges across Ontario, from a first shoplifting stop to employer theft allegations built on months of records, and this page walks through the process from the moment security stops you to the day the file ends.

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

What counts as theft in Ontario

Section 322(1) defines theft with two loaded phrases. A person commits theft who fraudulently and without colour of right takes, or converts to their own use or someone else's use, anything, whether animate or inanimate, with intent to deprive the owner of it.

Unpack the pieces, because each one carries defence weight. Fraudulently means the taking has to be dishonest, not mistaken or absent-minded. Colour of right means an honest belief in a legal entitlement to the property: if you genuinely believed the thing was yours, or that you had a right to take it, the charge fails even if you were wrong about the law of ownership. Takes or converts covers two different situations, the classic taking and the conversion case, where you came by the item lawfully, a borrowed tool, a deposit, a company card, and then treated it as your own.

The intent branches surprise people most. Intent to deprive the owner temporarily is enough. Taking something planning to return it later is still capable of being theft. So is pledging someone else's property as security, or dealing with it so it cannot be restored to its original condition. And s.322(3) adds that a taking or conversion can be fraudulent even though it happened in the open, with no secrecy and no attempt at concealment.

What separates theft from its neighbours: theft is a dishonest taking, while fraud is obtaining through deception, and files that involve deceit, cards or accounts often carry both charges. We keep a full guide to fraud charges in Ontario for exactly that overlap.

I never left the store. Is it still theft?

This is the most common misunderstanding in shoplifting files, so let the statute answer it.

So the store detective who stops you before the doors is not confused about the law. But notice what does all the work in that subsection: with intent to steal. Movement is easy for the Crown to prove. Intent is not. People walk around stores with items in their hands, in strollers, in reusable bags, while distracted by children and phones. Self-checkout misses happen at every store, every day. An honest mistake, a genuine intention to pay, a moment of distraction: these are not crimes, and courts know it.

A word about the stop itself. Store security can detain a suspected shoplifter in limited circumstances and must involve the police, and how those stops unfold varies. Whatever happens at the door, the safe course is the same: stay calm, do not fight anyone, and do not sign statements or give explanations while embarrassed and rattled in a back room. Identify yourself to police, take your paperwork, and call a lawyer before you explain anything to anyone.

The distance between moved an item and intended to steal it is where these cases are won, and the earlier the intent story gets built, with receipts, bank records and the store's own video, the better it holds.

Theft under $5,000 vs theft over $5,000: what the split changes

Since the 2019 amendments to s.334, both tiers of theft are hybrid offences. Plenty of websites still describe theft over $5,000 as straight indictable. The current statute says otherwise, and the difference matters for how a file can resolve.

Three things to read off that table. First, the Crown elects on either tier, and a summary election caps exposure at the s.787 default of two years less a day. Second, the indictable maxima diverge sharply: two years on the under tier, 10 years on the over tier, which is why the value alleged deserves scrutiny rather than acceptance. Third, and unlike fraud, the discharge column says yes on both rows. Neither theft tier carries a minimum sentence or a 14-year maximum, so absolute and conditional discharges under s.730 remain legally available even on theft over $5,000, and conditional sentences under s.742.1 do too.

The 10-year maximum on the over tier still does quiet damage in the background: it is the number that triggers immigration consequences for non-citizens, which is covered further down this page.

Why am I also charged with possession of stolen property?

Look at your paperwork and you may find a second count you did not expect: possession of property obtained by crime under s.354. People charged after a shoplifting stop, a search of a car, or a police visit to a home routinely face both charges arising from the same items.

Section 354 targets possessing any property, thing or proceeds knowing that all or part of it was obtained by or derived from an indictable offence. The punishment under s.355 mirrors the theft tiers exactly: hybrid, with up to 10 years on indictment where the value is over $5,000 or the property is a testamentary instrument, and up to two years where it is not. For vehicles, the statute even builds in a presumption arising from an obliterated identification number.

Why do police lay both? Because the counts give the Crown two routes to a finding: if it cannot prove who took the item, it may still try to prove who knowingly kept it. And that is exactly where the defence usually lives, in the word knowing. Buying second-hand goods at a price that seemed fine, storing a friend's things, sharing a home or a car with someone whose property you never inventoried: none of that proves knowledge that the items were stolen. Possession cases collapse when the Crown cannot put real evidence of knowledge, or of control over the item, on the accused person specifically.

Doubled counts also change resolution dynamics, since a plea discussion can resolve both, and sometimes the possession count is the sensible landing spot for a file that started as theft. That is a strategy conversation, not a default.

Who decides the value, and what if it is close to the $5,000 line?

The tier is set by the value of what was allegedly stolen, so the obvious question is who does the valuing. The answer: the Crown alleges a value, usually from the complainant, and the court ultimately needs evidence to support it.

In a retail file the number is usually just the price tags, and there is little to argue. In everything else, value gets soft fast. Used equipment claimed at replacement cost. Inventory counted from memory. An employer's estimate that blends suspected losses with proven ones. A dispute over one item's worth can move a file across the $5,000 line, and the line moves real consequences with it: the available maximum jumps from two years to 10, the Crown's election posture hardens, and the immigration exposure changes character for non-citizens.

So near-line files deserve a valuation fight. What was actually taken, what was it actually worth, what can be proven rather than asserted? Wills and other testamentary instruments are the one exception to the arithmetic: they sit in the higher tier at any dollar value, because of what they are rather than what they cost.

One more reason precision matters: restitution. The value the file settles on tends to become the number a restitution discussion starts from, and inflated claims should not get a free pass into a court order.

Can a shoplifting charge be diverted instead of prosecuted?

Often, yes, and for first-time, low-value theft charges diversion is frequently the outcome worth aiming at.

Diversion, where the Crown offers it, works like this: instead of prosecuting, the Crown agrees that if you complete certain conditions, commonly counselling, community service, a charitable donation or an educational program, the charge is withdrawn. There is no guilty plea, no finding of guilt and no conviction. The charge simply ends. A peace bond is a cousin of that outcome: the charge is withdrawn after you enter into a court order to keep the peace for a period, again without any admission of the offence.

Two honest caveats. Diversion is a discretionary offer, not a right, and availability and terms vary by courthouse and by Crown office. And eligibility screening happens early, based on the synopsis and your record, which means the way the file is presented in its first weeks can influence whether the offer comes at all. That is a place where counsel earns their keep: context about the person, the circumstances and the weaknesses in the case, delivered to the right prosecutor at the right time, changes screening outcomes.

For students and young people, the calculus is even more important, because a first file handled well can vanish, and a first file handled badly can follow them into every application they ever make. Our youth theft and fraud page covers how these principles apply to people under 18.

The store's lawyers sent me a demand letter. Do I have to pay it?

Weeks after a shoplifting stop, a letter often arrives from a law firm acting for the retailer, demanding a payment described as civil recovery for the store's losses and costs. It lands while the criminal charge is pending, which is exactly why it causes panic.

Separate the tracks. The letter is a civil demand. It is not from the police, not from the Crown, and it has no direct role in the criminal prosecution. Paying it does not make the criminal charge go away, and ignoring it does not add a criminal consequence. The two processes run on different rails, and conflating them is how people make decisions they regret.

Should you pay? That is a legal question about a civil claim, and it deserves advice before any response, because what you write back, or the fact of a payment made in a particular way, can surface later while the criminal matter is alive. Our practice is to manage both tracks together so that nothing said on the civil side does damage on the criminal side, and nothing about the criminal resolution gets complicated by the letter.

The short version: do not panic, do not pay reflexively, do not write an apologetic explanation to anyone, and bring the letter to the same lawyer who has the criminal file.

What happens when the allegation is theft from your employer?

Employer theft files are a different animal from shoplifting, and everyone in the courtroom treats them that way.

The legal reason sits in s.718.2(a)(iii) of the Criminal Code: evidence that the offender abused a position of trust or authority in committing the offence is a deemed aggravating factor at sentencing. An employee trusted with the till, the inventory, the deposits or the accounting starts from a harder position than a stranger who took the same value of goods, and Crown offices screen these files accordingly.

The practical texture differs too. These allegations are usually built by the employer before police ever hear about them: point-of-sale reports, inventory reconciliations, camera footage, banking records, sometimes a private investigator's file. That means the case arrives looking organized. It also means there is a documented version of events assembled by one side, with all the blind spots that implies. Authorizations that existed, informal practices everyone followed, chaotic record-keeping, other people with the same access: the employer's package rarely tells the whole story, and pulling it apart is core defence work.

The employment fallout usually lands before the court date: termination, a final paycheque dispute, sometimes pressure to sign acknowledgements. Sign nothing without advice. And because these files often involve larger values, longer time frames and restitution questions, they resolve differently: the valuation fight, the repayment structure and the trust-breach narrative all need to be managed together rather than one at a time.

What sentence actually follows a theft conviction in Ontario?

Start with the outcomes that avoid a conviction altogether, because in low-value first-offence files they are realistic: withdrawal, diversion completed and the charge pulled, a peace bond, or a discharge under s.730 after a finding of guilt. A discharge, absolute or conditional, is available on both theft tiers, since neither carries a mandatory minimum or a 14-year maximum, and it leaves you without a conviction.

Where a conviction does enter, the menu runs from a suspended sentence with probation, to a fine, to a conditional sentence served in the community, to jail. No theft offence carries a minimum sentence, so conditional sentences remain legally available on either tier where the sentence imposed is under two years. Jail in practice belongs to the serious end: high values, breaches of trust, sophisticated or repeated conduct, and records that show the lighter tools have already been tried.

Restitution runs through all of it. Under s.738 a court can order restitution on conviction or discharge where the amount is readily ascertainable, and under s.739 an order can reach situations involving innocent third parties who bought or lent against the property. Voluntary repayment, timed and structured properly, is real mitigation, and in resolution discussions it often does more work than anything else in the file.

We do not publish average sentences or ranges here, because they mislead more than they inform. The variables that actually move a theft sentence are the value proven, the trust involved, the record, the restitution, and the person the court sees in front of it. Every one of those can be worked on before anyone stands up to speak.

Will a theft charge show up on background checks, and can I clear it?

Theft is a charge employers care about, so this question decides careers. The answer depends on how the case ends.

While a charge is pending, it exists in police records, and some enhanced screening can surface it. A conviction creates a criminal record that standard checks for employment and volunteering will find, and theft convictions read badly on any application involving money, goods or trust. A discharge is a finding of guilt without a conviction, which is precisely why we chase discharges in these files. Withdrawn, diverted and peace-bonded charges are not convictions at all.

Two practical cautions. First, being processed on a theft charge normally involves fingerprints and photographs, and records of an arrest can persist even after a charge ends well. Depending on the outcome and the police service, follow-up steps may be available to tidy that footprint, and it is worth asking about them specifically rather than assuming everything vanished. Second, what appears on a check depends on the kind of check: a basic criminal record check, a judicial matters check and a vulnerable sector check pull different layers.

The strategic point comes first, though: the cheapest record to clean is the one that never gets created. That is why the first weeks of a theft file, when diversion screening and Crown positions are still forming, matter more than almost anything that happens later.

What do theft charges mean for immigration status?

For non-citizens, a theft file has a second docket number in Ottawa, and the analysis comes straight from the statute.

Under s.36(1)(a) of the Immigration and Refugee Protection Act, serious criminality means conviction for an offence punishable by a maximum of at least 10 years, or an offence for which a sentence of more than six months in jail was imposed. Theft over $5,000, with its 10-year indictable maximum, meets the first branch on its own, whatever sentence follows. Theft under $5,000, with a two-year maximum, does not, but a jail sentence over six months on any theft charge triggers the second branch.

Section 36(3)(a) then removes a common false comfort: a hybrid offence is deemed indictable for immigration purposes even when the Crown proceeds summarily. A summary election helps in criminal court and changes nothing in the inadmissibility analysis. For foreign nationals, the bar sits lower still: under s.36(2), a single conviction for an indictable-punishable offence, which the deeming rule makes theft, can ground ordinary criminality inadmissibility.

The tool that keeps people in the country is often sentence structure. In Tran v Canada, 2017 SCC 50, the Supreme Court held that a conditional sentence order served in the community is not imprisonment for the six-month branch. Keeping a sentence in the community, or a custodial term at or under six months, can preserve status or appeal rights that a slightly longer jail term would destroy. In any theft file involving a non-citizen, we run that analysis before taking any position on resolution, not after.

Where will my theft case be heard, and how does it start?

Most theft files begin with paperwork rather than a cell. People stopped for shoplifting are usually released from the store or the police station with a form of release setting out a first court date and conditions, often including a term not to attend the store involved. Police can hold someone for bail where there is a record, outstanding charges or other concerns, and in Toronto those hearings run at the Toronto Regional Bail Centre, 2201 Finch Avenue West.

Toronto charges are then heard in the Ontario Court of Justice at 10 Armoury Street. York Region files, including Markham, Vaughan, Richmond Hill and Aurora, run through the Newmarket courthouse at 50 Eagle Street West; our Markham theft lawyer page covers that courthouse's practice in detail.

The first appearance is administrative, not a trial. Disclosure gets ordered and collected, the Crown's screening position arrives, and in many theft files counsel can appear on your behalf so you do not miss work for routine dates. The early rhythm is disclosure, a position from the Crown, and then the real decision: pursue diversion or a resolution, or set the matter down to fight. Nothing about that rhythm is automatic, and the file's first impression, the synopsis a screening Crown reads, is being formed while you are still deciding whether to hire anyone.

How Kazandji Law defends theft charges across Ontario

Theft files reward specific work. We get the store or employer video early, before retention policies eat it, and watch all of it rather than the clips selected to support the charge. We rebuild the intent story with receipts, banking records and the layout of the day. We test the valuation instead of accepting it. In possession files, we press on knowledge and control until the Crown's inference collapses or survives on evidence rather than suspicion.

Charter issues get the same attention: how the stop happened, how a bag or car came to be searched, whether statements were taken properly. And where the right answer is resolution, we position files for it deliberately, with the context, the counselling and the repayment plan assembled before we ask a Crown for anything. Our case results page shows what that preparation produces.

Why people across Ontario call Kazandji Law

Kazandji Law is a criminal defence firm led by founding partner Fadi Matthew Kazandji, with four offices so clients are never far from counsel:

• Toronto, head office: 180 John St, Unit 320, minutes from the Ontario Court of Justice at 10 Armoury Street and the Superior Court at 361 University Avenue.
• Thornhill: 7191 Yonge St, Suite 310, serving Markham, Vaughan, Richmond Hill and the York Region files heading to Newmarket.
• North York: covering the northern parts of the city and bail matters at 2201 Finch Avenue West.
• Oakville: for Halton and the western GTA.

Consultations are free, and the first conversation is about your options. Beyond theft, the firm defends the full range of criminal allegations, including assault charges across the province, and our criminal defence hub collects the full practice.

The defences that actually work in theft cases

Every theft file gets tested against a short list of defences, and most good outcomes trace back to one of them.

• No dishonest intent. The Crown must prove a fraudulent taking. Distraction, honest error, a genuine intention to pay, the self-checkout item that never scanned: these are explanations, not confessions, and courts accept them when the surrounding facts support them.
• Colour of right. An honest belief that you were legally entitled to the property, taking back what you understood to be yours, or acting on a claim you believed valid, answers the charge even if your belief about the law turns out to be wrong.
• No knowledge. In possession files, the Crown has to prove you knew the property was obtained by crime. Second-hand purchases and shared spaces rarely prove that on their own.
• Identification and continuity. Busy stores, partial camera coverage, merchandise that moved through many hands. Both the person and the property have to be proven, precisely.
• Valuation. Near the $5,000 line, the difference between an asserted value and a proven one changes the tier, the exposure and the leverage.
• Charter breaches. A bad detention, an overreaching search, a statement taken without proper rights: evidence obtained in breach can be excluded, and theft files have collapsed on exactly that.

Which defence fits is a question about facts, not hope. That is what the free consultation is for: an honest read of which of these doors is actually open in your file.

Theft charges in Ontario: frequently asked questions

This page is general legal information for people facing theft charges in Ontario, not legal advice about your specific case. Every file turns on its own facts. Criminal Code and IRPA references are current to July 2026. If you have been charged, get advice on your own situation. Kazandji Law, 180 John St, Unit 320, Toronto, Ontario. Free consultations: 647-588-3234.