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. Both offences are defined in sections 322–334 of the Criminal Code.
| Theft Under $5,000 (s. 334(b)) | Theft Over $5,000 (s. 334(a)) | |
|---|---|---|
| Offence type | Hybrid | Hybrid |
| Maximum (indictment) | 2 years | 10 years |
| Maximum (summary) | 2 years less a day | 2 years less a day |
| Mandatory minimum | None | None |
| Discharge available | Yes | Yes (max under 14 years) |
| Diversion eligible | Commonly available | Rare |
| Typical first-offence outcome | Diversion, discharge, or fine | Conditional sentence or probation |
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.
How Theft Charges Get Dropped in Ontario
Theft charges are withdrawn, stayed, or otherwise resolved short of trial in the majority of cases. Understanding the mechanisms gives you a realistic picture of what defence counsel can accomplish.
Diversion. Ontario’s direct accountability programs allow first-time offenders charged with low-value theft to have their charges withdrawn upon completing conditions — community service, a charitable donation, a letter of apology, or an educational program. Diversion is not available for everyone, but when it is, it produces the best possible result: no guilty plea, no conviction, no criminal record.
Peace bond. The Crown may agree to withdraw theft charges in exchange for the accused entering a peace bond under section 810 of the Criminal Code. A peace bond is not a conviction — it is a court order to keep the peace for up to 12 months. For more on how this works, see our guide to peace bonds in Ontario.
Evidentiary weaknesses. Theft cases frequently rely on circumstantial evidence — surveillance footage, witness identification, or fingerprints — that may not withstand scrutiny. If the Crown cannot prove identity or intent beyond a reasonable doubt, it may stay or withdraw the charge rather than proceed to trial. The Supreme Court of Canada in R v. Lifchus, [1997] 3 SCR 320 established the standard instruction on reasonable doubt that governs every theft trial.
Charter violations. If the police obtained evidence through an unlawful search or arbitrary detention, that evidence may be excluded under section 24(2) of the Charter. In theft cases, this most commonly arises when police search a vehicle, bag, or residence without a warrant and without lawful authority. The landmark decision in R v. Grant, 2009 SCC 32 sets out the framework courts use to decide whether unconstitutionally obtained evidence should be excluded.
Restitution and resolution. In some cases, the Crown will consider withdrawing charges where the accused has made full restitution to the complainant and the complainant supports the withdrawal. This is not an entitlement — the Crown decides independently — but it is a factor that defence counsel can present effectively in negotiations. If you are facing theft charges in the Toronto area, an experienced criminal lawyer can assess whether a withdrawal is realistic in your case.
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. As the Supreme Court of Canada held in R v. Lilly, [1983] 1 SCR 794, 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.
- R v. S.W. — Client charged with robbery had charges withdrawn at 2201 Finch Court. The defence raised issues with respect to client’s involvement as a party to the offence and the Crown chose not to proceed.
- R v. K.E. — Client charged with theft under had charge withdrawn at College Park.
How a Theft Case Moves Through Ontario Courts
Understanding the process helps you make better decisions at each stage. A theft charge in Ontario follows a predictable path from arrest to resolution.
- Arrest and release. For minor theft (shoplifting, theft under $5,000), police typically release you with an appearance notice or undertaking. For more serious offences (theft over $5,000, break and enter), you may be held for a bail hearing.
- First appearance. You appear in court, usually at the Ontario Court of Justice in the jurisdiction where the offence occurred. In Toronto, this means Old City Hall or the Toronto courthouse at 2201 Finch Avenue. Do not plead guilty at this stage. A lawyer can appear on your behalf and request disclosure.
- Disclosure review. Your lawyer reviews the Crown’s evidence — police reports, witness statements, surveillance footage, forensic evidence. This is where the strength of the Crown’s case becomes clear.
- Crown pre-trial. Defence counsel meets with the Crown attorney to discuss the case. This is the stage where diversion eligibility is assessed, peace bond resolutions are proposed, and plea negotiations occur.
- Resolution or trial. The majority of theft charges resolve before trial through diversion, a peace bond, a guilty plea to a lesser charge, or a withdrawal. If no resolution is reached, the case proceeds to trial where the Crown must prove every element beyond a reasonable doubt.
For a straightforward theft under $5,000, the entire process from charge to resolution can take three to six months. Complex cases involving multiple counts, higher values, or break and enter charges may take longer.
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. For a complete overview of how convictions affect employment, travel, and daily life, see our guide on criminal records in Canada. 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.