Theft Under the Criminal Code
Theft is defined in section 322 of the Criminal Code. A person commits theft when they fraudulently and without colour of right take, or convert to their use, anything with the intent to deprive the owner of it — either temporarily or permanently. The offence requires two elements: the act of taking someone else’s property and the intent to deprive the owner of it.
Intent is the critical element. If you honestly believed you had a right to the property (known as colour of right), you have a defence to the charge. If you took an item by mistake, or were given permission to take it, the Crown cannot prove theft. This is why the specific circumstances matter enormously — a fact pattern that looks straightforward to the police often has significant legal issues when examined by a criminal defence lawyer.
Theft Under vs. Theft Over $5,000
The Criminal Code draws a sharp line at $5,000. This threshold determines the classification of the offence and the maximum penalty.
Theft under $5,000 (section 334(b)) is a hybrid offence. If the Crown proceeds by indictment, the maximum sentence is two years imprisonment. By summary conviction, the maximum is two years less a day. There is no mandatory minimum, and the full range of sentencing options — including discharges, fines, suspended sentences, and conditional sentences — is available.
Theft over $5,000 (section 334(a)) is more serious. If prosecuted by indictment, the maximum is 10 years imprisonment. The Crown is more likely to proceed by indictment for theft over $5,000, particularly where the value is substantially above the threshold. Bail may be more difficult to obtain, and the Crown’s sentencing position will be more aggressive.
Shoplifting
There is no separate offence of “shoplifting” in Canadian law. Taking merchandise from a store without paying is prosecuted as theft under $5,000 under section 334(b) of the Criminal Code. It is a criminal offence that results in a criminal record upon conviction.
Shoplifting charges are among the most commonly laid theft charges in Ontario. They are also among the most commonly resolved without a conviction — particularly for first-time offenders. Diversion programs are widely available for shoplifting and low-value theft charges. If the accused has no criminal record, accepts responsibility, and completes conditions set by the Crown (such as community service, a charitable donation, or a letter of apology), the charge is withdrawn and no criminal record results.
Even where diversion is not available, a discharge under section 730 of the Criminal Code is a realistic outcome for first-time shoplifting. A discharge means the accused is found guilty but not convicted, and no criminal record results after the applicable period.
Possession of Property Obtained by Crime
Theft charges are frequently accompanied by a charge of possession of property obtained by crime under section 354 of the Criminal Code. The Crown must prove three elements: that the property was obtained by the commission of a criminal offence, that the accused had possession of the property, and that the accused knew the property was obtained by crime.
Knowledge is often the key issue. The Crown can establish knowledge through direct evidence or through inference — but wilful blindness or deliberate ignorance is not the same as actual knowledge. If the accused had no reason to suspect the property was stolen, the Crown will struggle to prove this element.
Like theft, possession of stolen property is divided by value: under $5,000 (maximum two years) and over $5,000 (maximum 10 years by indictment).
Break and Enter
When theft occurs from a home or building, the police frequently charge break and enter under section 348 of the Criminal Code. This offence is treated far more seriously than simple theft.
Breaking and entering a dwelling house is a straight indictable offence carrying a maximum sentence of life imprisonment. “Breaking” does not require physical force — opening an unlocked door or window is sufficient. “Entering” means crossing the threshold of the premises.
Breaking and entering a non-dwelling (commercial premises, storage unit, garage) is a hybrid offence with a maximum of 10 years by indictment.
Break and enter cases often turn on identification evidence. The Crown must prove the accused is the person who entered the premises. Fingerprints, surveillance footage, and witness identification are common forms of evidence — and each has well-documented reliability problems that experienced defence counsel can challenge.
Sentencing Ranges
Sentencing for theft and property offences varies widely depending on the value of the property, the accused’s criminal record, the circumstances of the offence, and the impact on the victim.
For a first offence of theft under $5,000, the most common outcomes are: an absolute or conditional discharge, a fine, a suspended sentence with probation, or diversion (resulting in withdrawal of the charge). Jail is uncommon for a first offence involving low-value property.
For theft over $5,000, the range begins to include conditional sentences and custodial sentences, particularly where the value is significantly above the threshold or the offence involved a breach of trust.
For break and enter, sentencing varies from probation and conditional sentences for first offenders to substantial jail terms for repeat offenders. Break and enter into a dwelling house is treated as a particularly aggravating factor.
Defence Strategies
Property offences are defended on several fronts, depending on the facts of the case.
Lack of intent. The Crown must prove the accused intended to permanently or temporarily deprive the owner of the property. If the accused believed they had permission to take the item, took it by mistake, or intended to return it, the intent element is not made out.
Colour of right. Under section 322(1), an honest belief in a legal right to the property is a complete defence. The belief does not need to be reasonable — it must be honestly held. This defence arises in disputes over ownership, property held as security, or items taken in the context of a business or personal relationship.
Identity. Property offences frequently rely on circumstantial evidence — fingerprints, surveillance footage, witness identification. Each of these has known reliability issues. Fingerprints prove presence, not timing. Surveillance footage may be unclear. Witness identification has been shown to be one of the leading causes of wrongful convictions. Defence counsel challenge the Crown’s identification evidence at trial.
Charter violations. If the police obtained evidence through an unlawful search (violating section 8 of the Charter), an arbitrary detention (section 9), or a failure to provide the right to counsel (section 10(b)), the evidence may be excluded under section 24(2). This is particularly relevant in possession of stolen property cases, where the property is often discovered during a vehicle or home search.
Representative Results
The following are representative cases from our practice involving theft and property offences:
- R v. K.P. — Youth client charged with break & enter to commit and possession of property obtained by crime had his charges withdrawn at 2201 Finch Court. The break and enter involved the theft of over $10,000 from a home. The Crown withdrew the charge due to credibility issues with respect to the main witness and the difficulty in proving involvement in the theft that were raised prior to trial as well as an unconstitutional search of my client.
- R v. B.F. — Client charged with break and enter to commit and theft over had charge stayed by the Crown at Old City Hall in Toronto. The Crown alleged that my client was responsible for a break & enter into a home and the theft of $50,000 worth of contents. As a result of forensic inquiries by the defence that weakened the Crown’s case, the Crown chose not to proceed to a preliminary inquiry.
- R v. T.C. — Client charged with theft under x 9 had charges withdrawn in Newmarket.
- R v. W.M. — Client charged with possession of property obtained by crime over $5,000 was acquitted after a judge alone trial in Brantford. The defence raised identification issues and knowledge issues by cross-examining the investigating officer and the Judge was not satisfied that the charge was proven beyond a reasonable doubt.
Diversion and First-Offence Outcomes
Diversion is one of the most important outcomes available in theft cases. Ontario’s direct accountability programs allow eligible accused persons to have their charges withdrawn upon successful completion of conditions. Eligibility typically requires: no prior criminal record, a relatively low-value theft, and the accused accepting responsibility.
The conditions may include community service hours, a charitable donation, a letter of apology, and participation in an educational program. The timeline is typically three to six months. Upon successful completion, the Crown withdraws the charge — no guilty plea, no conviction, no criminal record.
Where diversion is not available (for example, because of a prior record or a higher-value theft), defence counsel negotiate for discharges, suspended sentences, and other non-custodial outcomes. The goal in every theft case is to avoid a criminal record where possible, or to minimize the consequences where it is not.
Collateral Consequences
A theft conviction is classified as a crime of dishonesty — a category that carries particularly severe collateral consequences. Regulated professionals (lawyers, accountants, real estate agents, financial advisors, nurses, teachers) must disclose all crimes of dishonesty to their regulatory bodies, which may result in suspension or revocation of their professional licence.
A criminal record for theft also affects employment, international travel (particularly to the United States), immigration proceedings, and volunteer screening checks. These consequences often outweigh the sentence imposed by the court, which is why avoiding a conviction — through diversion, a discharge, or an acquittal — is the primary objective in most theft cases.