Understanding Theft
Theft falls in the category of property offence that covers different illegal acts, such as shoplifting or taking the personal property of a friend, stranger, family member, or company without their permission.
Most theft investigations occur at the request of the victim who has discovered the theft. They will call the police and report the incident.
In many shoplifting situations, the suspected thief may be at the scene. If the thief is absent, police must check the footage or other records to determine who committed the offence.
Consequences of Theft Under $5,000
Only the theft offence exceeding $5,000 is considered chargeable by the government. For such charges, the accused has the right to choose trial by a judge alone in the Canadian Court of Justice, alone in the Superior Court of Justice, or by judge and jury in the Superior Court of Justice.
Penalties for theft exceeding $5,000 may involve imprisonment for ten years. In Toronto, the judge will consider multiple factors regarding both the offence and the offender when sentencing for theft charges, including;
- Number of thefts alleged
- Any prior criminal history
- The value of the goods stolen
- Whether there was a breach of a position of trust, such as theft from an employer
What Happens if you Charged with Theft
After gathering all the evidence, if police believe you are the suspect, they arrest you. If you are absent, they eventually track you or issue a warrant of arrest against you.
If you have been charged, you need to contact Kazandji Law immediately, depending on the value of the theft. The Crown will try to move the case to the court quickly as it is not considered a crime.
Kazandji Law will provide you with options based on the evidence. In your first session, we will guide you on how the legal system works and what options may be available.
How to Beat a Theft Charge
Every situation is unique when it comes to theft. Following are some of the questions that need to be asked to understand what options are available to you.
- Was it a first offence?
- How much was the value of the theft?
- Were there unusual circumstances?
Possible defences rely on the concept that you believed the item was always yours. In other cases, if you return the item or financially compensate the victim, it may be sufficient to avoid a criminal record.
Investigation of Theft Charges in Toronto
When someone reports a theft in Toronto, the investigation usually starts with a complaint from a witness. This could be someone who saw it happen, like a store security guard or someone who had their things taken.
To start looking into it, the police come to where it happened and ask the witnesses to write down what they saw.
Most theft investigations start in the first place. Sometimes, the person suspected of stealing is still available when the police show up, especially in shoplifting cases.
If the suspect is not there, the police will check the security cameras or the other records to determine who did it.
Once the police are done collecting all the evidence, they will arrest you if they think you are the one who did it. If you were not there when it happened, the police will try to find you or get a warrant to arrest you.
After you are charged, the police will gather all the evidence they have, which they will give to the crown lawyer in a package called ‘disclosure package.’ You have all the rights to see this package to know their evidence against you.
When you hire one of our lawyers, our lawyer will help you get this package and go through it with you. He will look into the case’s strengths and weaknesses against you and see if any legal defences can be used.
Negative Effects of a Theft Charge
If there is any criminal record against you that has arisen from theft, it will negatively impact your future. You might lose your current job and need help finding new ones.
Anyone who knows about the criminal record against you may develop a negative opinion of you that can easily damage your social standings and create long-term distance from your community.
Best Defenses for Theft
The following are the best defences for theft;
No Mental Intent
In theft cases, a common defence is you did not mean to take something. But you accidentally left the store with something you should have paid for.
Identity
Sometimes, if there is no clear video or the video they have is of bad quality, you can argue you did not commit the crime. They might believe the authorities wrongly identified you because the footage was too blurry. You should prove where you were when the crime happened to support this argument.
Violation of Constitutional Rights
Canadian Charter of Rights and Freedoms lists your rights before and after you get arrested in the case. If the police do not follow these rights, it could help your defence.
Colour of Right
This defence may be helpful when you honestly believe that you had a lawful right to property when, in reality, you did not have the right. For example, if you took your friend’s car with honesty but mistakenly believed that he was lending it to you.
Bail Process for Theft Charges in Toronto
If you get charged with theft in Toronto, the police might let you go with a release order. They will give you a paper on which charges are listed or any dates of the court that you need to remember.
This paper might have rules you must follow until you get bail, like staying away from where the theft happened.
If you have any criminal record or the crime allegations are very serious, a formal hearing is required to secure your release.
To conduct a bail hearing, you will be taken to the Toronto Police Service Division, which is responsible for the crime committed. The bail hearing must be held within 24 hours.
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Theft Law Foundations: What Section 322 Actually Requires
Every Toronto theft prosecution starts from s. 322(1) of the Criminal Code. A person commits theft who fraudulently and without colour of right takes, or converts to their use or the use of another, anything with intent to deprive the owner of it, temporarily or absolutely, or to pledge or deposit it, part with it under a condition they may be unable to perform, or deal with it so that it cannot be restored in its original condition. Each of those words is an element the Crown must prove beyond a reasonable doubt, and each is a place a defence can take hold: an honest mistake is not fraudulent; a genuine claim to the property is colour of right; and absent-minded walking-out is not intent to deprive.
Under s. 322(2), theft is complete the moment a person, with the required intent, moves the thing or begins to cause it to become movable, no need to leave a store or profit in any way, and the Code adds that the purpose of the taking is not material. That is why shoplifting allegations so often crystallize at the shelf or the change room rather than the exit. But the same timing rule cuts both ways: what the accused was actually intending at that instant is the live question, and video that shows ambiguous handling proves movement, not fraudulent intent.
Colour of right, the theft defence most people have never heard of
Colour of right is an honest belief in a legal entitlement to the property, that it was yours, that you had a right to take or hold it, that a debt or agreement entitled you to it. The leading authority, R v Dorosh (2003, Saskatchewan Court of Appeal), confirms the belief need not be reasonable or even correct: an honest belief arising from a mistake of fact or of civil law negates the mental element. Section 429(2) expressly preserves legal justification and colour of right as answers to property offences. Disputes between former partners, roommates, contractors and employers over who owned what are fertile ground for this defence, a civil dispute is not a crime.
Under $5,000 or over: how s. 334 grades the charge
| Charge | Crown election | Maximum penalty |
|---|---|---|
| Theft over $5,000 (or of a testamentary instrument), s. 334(a) | Hybrid, indictment or summary | 10 years’ imprisonment on indictment; on summary conviction, the general s. 787 limit, a fine of up to $5,000, up to two years less a day in jail, or both |
| Theft under $5,000, s. 334(b) | Hybrid, indictment or summary | 2 years on indictment; the same s. 787 limits on summary conviction |
Two details are routinely misstated. First, since 2019 both branches are hybrid, even theft over $5,000 can proceed summarily. Second, the summary-conviction ceiling comes from s. 787’s general penalty provision, not from s. 334 itself. The dollar line is jurisdictional, not moral: a $5,100 allegation and a $4,900 allegation are the same conduct with very different maximum exposure, which matters for elections, plea positions and immigration analysis.
Deemed theft: ss. 330 and 332
The Code also reaches situations with no taking at all. Section 330 makes it theft to fraudulently fail to account for money or valuable security received with directions, the provision behind many employee and bookkeeping allegations. Section 332 covers misappropriation of money held under direction, applied fraudulently and contrary to the direction. In R v Skalbania (1997), the Supreme Court of Canada confirmed that intentional misappropriation, without mistake, supplies the mental element. These cases rise and fall on documents, ledgers, instructions, authority, and on whether what looks like misdirection was actually authorized, mistaken or merely sloppy.
From Loss Prevention Office to Criminal Charge: How Shoplifting Cases Start in Toronto
Most Toronto theft files do not begin with a police investigation. They begin with a loss prevention officer, a private employee, watching a floor or a camera bank at an Eaton Centre retailer, a grocery anchor or a big-box store. Loss prevention officers are not police. Their power to detain comes from s. 494 of the Criminal Code, the citizen’s arrest provision: a property owner or a person authorized by the owner may arrest someone found committing a criminal offence on or in relation to the property, and since the 2012 Citizen’s Arrest and Self-defence Act, within a reasonable time afterward where it is not feasible for police to make the arrest. The law requires anyone making a citizen’s arrest to deliver the person to a peace officer forthwith, and only reasonable force may be used.
Everything about that detention is reviewable later: whether you were actually found committing anything, how long you were held in the back office, what was said to you, whether force or threats were used, and whether any statement you made there was voluntary. Do not argue, resist or explain in the loss prevention office, identify yourself, stay calm and wait for police. When Toronto Police Service officers attend, most low-value first-offence cases end that day with release on an appearance notice or an undertaking, commonly with a condition not to return to the store; only a minority are held for a bail hearing. The charge then proceeds at Toronto’s consolidated Ontario Court of Justice courthouse at 10 Armoury Street, which since 2023 has absorbed the city’s former OCJ criminal locations.
The letter that follows you home. After a shoplifting allegation, many national retailers send a civil recovery demand letter, often from a law firm, typically demanding several hundred dollars, whether or not the merchandise was recovered. That demand is a civil matter, entirely separate from the criminal charge: paying it does not make the charge go away, and receiving it does not create any obligation to pay. Get legal advice before responding to it at all.
Theft, Robbery, Fraud. Where the Lines Are
Charges that sound alike carry very different stakes, and Crown offices sometimes lay them in combination. Theft is a taking or conversion without colour of right. Robbery is theft plus violence, force, threats or a weapon connected to the taking, and it transforms a property case into a crime against the person with radically higher exposure; see our Toronto robbery defence page. Fraud alleges deprivation by dishonest means, deceit rather than taking, and, like theft, splits at the $5,000 value line; see our Toronto fraud under $5,000 page. And possession of property obtained by crime under s. 354, knowing possession of property derived from an indictable offence, carries penalties that mirror theft’s under s. 355: a 10-year indictable maximum over $5,000, two years under. The dividing lines matter because the defences differ: colour of right, dishonesty, knowledge and identification each belong to a different charge, and part of counsel’s job is holding the Crown to the elements of the count it actually laid. For the province-wide picture, see our Ontario theft defence guide.
Diversion for First-Time Theft: Real Options, No Promises
People charged with a first-offence, low-value theft often assume a conviction is inevitable. In Toronto practice, that is usually wrong, but the alternatives have to be identified and pursued early. Ontario has no single theft diversion statute; instead, Crown policy supports resolving suitable low-value, first-time cases through diversion, programs that go by names like direct accountability or alternative measures and vary from courthouse to courthouse. The shape is consistent: the person completes agreed steps, and the charge is withdrawn or stayed, ending the prosecution without a conviction. Eligibility is the Crown’s call, influenced by the value involved, the circumstances, prior record and, often, defence advocacy that puts context in front of the right prosecutor. Nothing here is automatic and no outcome can be promised, but failing to ask, or pleading guilty before diversion was even canvassed, gives away the most valuable exit in the building.
Where diversion is not on the table, s. 730 of the Criminal Code allows a court, after a finding of guilt, to grant an absolute or conditional discharge instead of convicting, available for theft because it carries no mandatory minimum and its maximums fall below the statutory cut-off. A discharged person is deemed not to have been convicted of the offence. Between Crown diversion and judicial discharges, a first theft allegation has realistic paths that end without a criminal conviction, which is precisely why the first weeks after a charge matter more than most people realize.
Immigration, Records and Background Checks
For non-citizens, the value line in s. 334 is not a technicality. A conviction for an offence punishable by a maximum of at least 10 years, which includes theft over $5,000 and possession of property over $5,000, can constitute serious criminality under the Immigration and Refugee Protection Act for a permanent resident, putting status itself at risk with limited or no appeal rights. For foreign nationals, workers, students, visitors, even lower-value theft can raise inadmissibility concerns. If you are not a Canadian citizen, tell your lawyer immediately: in these files, avoiding a conviction through diversion or a discharge can matter far more than whatever sentence might follow one.
For everyone else, the practical currency of a theft file is the record check. A conviction appears on checks used by employers, licensing bodies and volunteer organizations, a lasting honesty-offence entry that overshadows the sentence itself. Resolutions that end without a conviction, withdrawal after diversion, or a discharge, are the reason to defend these cases properly rather than treat them as paperwork.
First Steps After a Toronto Theft Charge
- Stop talking about the incident. Nothing to loss prevention, police, the store or social media, identification aside, you have the right to remain silent and explanations become exhibits.
- Write down everything while it is fresh, what happened, what was said in the loss prevention office, how long you were held, names and details.
- Keep your paperwork, the appearance notice or undertaking, receipts, bank records, anything showing payment, permission or mistake.
- Follow release conditions exactly, including any term not to attend the store, a breach is a new criminal charge.
- Do not pay a civil demand letter before getting advice, it is separate from the criminal case.
- Flag immigration status, licensing and employment screening issues to your lawyer at the first meeting, they drive strategy.
- Get counsel involved before your first appearance at 10 Armoury Street, disclosure, diversion and Crown discussions all start earlier with a lawyer on the file.
Toronto Theft Charge FAQ
Is theft under $5,000 a serious criminal charge?
Yes. It is a hybrid offence: on indictment the maximum is two years, and on summary conviction the general Criminal Code limit applies - a fine of up to $5,000, up to two years less a day, or both. Beyond the sentence, a conviction creates a criminal record with employment, travel and immigration consequences. Many first offences can resolve without a record, but that outcome has to be worked for, not assumed.
What does the Crown have to prove for a theft conviction?
Under s. 322, the Crown must prove a taking or conversion done fraudulently, without colour of right, and with intent to deprive the owner. Theft is complete once the item is moved with that intent - but honest mistake, distraction, a genuine claim to the property, or lack of fraudulent intent each defeat an element of the offence.
What is colour of right?
Colour of right is an honest belief that you were legally entitled to the property - because you believed it was yours, that you had permission, or that a debt or agreement gave you a right to it. The courts have confirmed the belief does not need to be reasonable or legally correct, only honestly held; it can rest on a mistake of fact or of civil law, and it negates theft.
Can store security legally detain me for shoplifting?
Loss prevention officers rely on the citizen's arrest power in s. 494 of the Criminal Code: an owner or authorized person may arrest someone found committing an offence on or in relation to the property, or within a reasonable time afterward where police arrest is not feasible, and must deliver that person to police forthwith using no more than reasonable force. How the detention was actually carried out is reviewable and can affect the case.
Do I have to pay the civil recovery demand letter from the store?
No obligation arises just because you received it. The civil demand is separate from the criminal charge - paying it does not end the prosecution, and ignoring it does not add criminal consequences. Speak with a lawyer before paying or responding to one of these letters.
Will a first-time theft charge leave me with a criminal record?
Not necessarily. Ontario Crowns frequently agree to diversion for low-value first offences, which typically ends in withdrawal of the charge, and s. 730 discharges mean a person found guilty is deemed not to have been convicted. Whether those routes are available depends on the facts, your history and the Crown's position - early legal advice is the best way to protect your record.