Theft under Canadian criminal law is classified according to the monetary value of the subject of the offence. A hybrid offence, theft under $5,000 may be prosecuted as either a summary or indictable offence, with maximum penalties of six months and two years in prison, respectively. Also a hybrid offence, theft over $5,000 carries a maximum penalty of ten years in prison. Penalties for theft depend on the value of the subject of the offence, the accused’s criminal history and personal circumstances, and the presence of aggravating factors.

Theft Definition

Theft under Canadian criminal law is a non-violent property offence that covers both shoplifting and taking or converting another person’s property without their consent. Classified according to the value of the subject of the offence, theft under $5,000 is distinguished from that over $5,000.

What is Theft?

You may be charged with theft if you intentionally take another person’s property without lawful authority to do so. The monetary value of the subject of the offence dictates whether you will be charged with theft under $5,000 or theft over $5,000.

To yield a conviction of theft, the Crown Prosecutor must prove beyond a reasonable doubt:

  • You took or converted property
  • You moved (or tried to move) something that belonged to someone else
  • The subject of the offence is owned by someone
  • The owner of the property did not give you permission to take or convert it
  • The property was not given to you
  • You intended to deprive the owner of their property
  • The value of the subject of the offence (and whether it’s over or under $5,000)

The Crown Prosecutor must also prove:

  • Your identity
  • The date and time of the offence
  • The location of the offence

Theft Over $5,000

While the elements of theft under $5,000 and theft over $5,000 are the same, the consequences for theft over $5,000 are notably more severe. Generally speaking, the value of the subject of the offence is positively correlated with the severity of punishment upon conviction.

Shoplifting

Shoplifting occurs when you take merchandise from a retail store without paying for it. Since the stolen property is almost always low ticket items, most shoplifting results in a charge of theft under $5,000 — which is why shoplifting and theft under $5,000 are sometimes used interchangeably.

You cannot be charged with shoplifting if you did not intend to remove the merchandise from the store. Forgetting to pay for an item or forgetting that you were carrying an item does not qualify as shoplifting, and these are therefore common defenses to such charges — especially where there is CCTV footage of the alleged act.

Theft vs. Fraud

Theft is similar to fraud in that both involve the deprivation of money or property, and both are classified according to the value of the subject of the offence (under or over $5,000). But while property is taken in theft, it’s offered in fraud. That is, victims of fraud willingly forfeit their property to fraudsters under false pretenses.

If you were to hotwire a car, drive it away and strip it for parts, that would be theft. If you instead gained access to this car by posing as a parking valet to whom the owner voluntarily gave their keys, that would be fraud. The deliberate act of deception — absent in theft — is what separates fraud from theft.

Theft in the Criminal Code of Canada

Section 322 of the Criminal Code states that every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

  1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
  2. to pledge it or deposit it as security;
  3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
  4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Section 334 of the Criminal Code states that except where otherwise provided by law, every one who commits theft

  1. if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of
    1. an indictable offence and liable to imprisonment for a term of not more than 10 years, or
    2. an offence punishable on summary conviction; or
  2. if the value of what is stolen is not more than $5,000, is guilty
    1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
    2. of an offence punishable on summary conviction.

Theft Penalties

Penalties for theft depend on the value of the subject of the offence, the accused’s criminal history and personal circumstances, and the presence of aggravating factors. In determining what sentence to seek, the Crown will assess the value of the stolen items, the level of trust breached, whether you have a criminal history, and the situation from which the theft arose.

Stealing from an employer and other breaches of trust are considered aggravating factors on sentencing and generally result in harsher sentences. Having an existing criminal record with theft charges will also increase the severity of your sentence. For less severe offences, like most shoplifting cases (under $5,000), you may be eligible for an alternative measures program.

Alternative Measures Programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, the Crown will direct a stay of proceedings and you will not receive a criminal record.

Alternative measures may include:

  • Compensation for the loss or damage
  • An apology
  • Community service work
  • Culturally-based practices for Indigenous people

Theft Under $5,000/shoplifting Penalties

  • Up to two years in prison if charged indictably
  • Up to six months in prison if charged summarily
  • Possible referral to an alternative measures program
  • Criminal record
  • Travel restrictions to the United States
  • Probation
  • Fines
  • Restitution
  • Possible revocation of immigration status
  • Reputational damage

Theft Over $5,000 Penalties

  • Up to 10 years in prison
  • Criminal record
  • Travel restrictions to the United States
  • Probation
  • Fines
  • Restitution
  • Possible revocation of immigration status
  • Reputational damage
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