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Theft Under $5000 Charges in Toronto (GTA), Ontario, Canada

In Canada any theft totaling under $5000 in value is classified as "theft under $5000" as per Section 334 (b) of the Criminal Code.

Theft under $5000 is a Crown elect/hybrid indictable (felony) offence which carries a maximum penalty of two years in prison. If the Crown proceeds summarily (misdemeanor) the maximum punishment is 6 months in a provincial jail. Getting a criminal record for theft under $5000 is a major problem as it renders most people unemployable, can lead to problems with immigration status and IRCC applications, and prevent them from travelling to the U.S. for the rest of their lives.

Many educated professionals (nurses, engineers, teachers, lawyers, physicians, real estate agents, etc.) also are governed by professional regulatory bodies. Being charged with theft under $5000 may have to be disclosed leading to disciplinary actions. Virtually all employment professional colleges/societies in Ontario have provisions for conduct unbecoming.

Those who receive a Form 9 Appearance Notice or Form 10 Undertaking from the police requiring fingerprints and to attend court are being criminally charged with all offences stated on the form (theft, fraud, possession of property obtained by crime, etc.).

If you are charged with a theft related offence the result of your case will be extremely important in determining your future. Those labeled as thieves by society have trouble getting people to trust them ever again, even if it is for a relatively minor one time mistake. Sometimes the theft charge is a result of an out of character one time mistake or even an accident. It is important to note that only intentional theft can support a finding of guilty and conviction.

The most common forms of theft under $5000 charges in the Greater Toronto Area are:

  1. Shoplifting
  2. Theft from an employer
  3. Theft of parcels from doorsteps
  4. Gasoline theft
  5. Theft from locker rooms

How does the Criminal Code of Canada define the crime of "Theft Under 5000"?

The act of theft occurs the moment a person attempts to “move” an item into their possession that is not theirs. In a shoplifting case, for example, a person can be charged prior to leaving a store so long as they moved an item into their possession with the intention to steal. Simply placing an item in your pocket could be enough for them to be criminally charged and a court to convict.

Intent (mens rea) is a required component of the crime. If someone accidentally takes something that is not theirs this would not be sufficient to make out the crime of theft under $5000 aka "theft under 5000" or just "theft under". Mistakes can happen and sometimes people get distracted, forget about things, and truly have an innocent mind. It would be up to the trial judge to decide whether the person intended to steel or not if the case went to trial. Theft under $5000 cases are always heard by a Judge and not a Jury.

What happens at a trial for theft under $5000 charges?

For accused that plead not guilty, they would have an opportunity at their trial to take the stand and testify that they forgot to pay, were distracted by a phone call, did not realize an item was not scanned (at a self-checkout or otherwise), was not in a proper state of mind, was acting inappropriately because of their prescription medication, thought it was okay to leave the store to obtain an item for sale outside (plant, salt, pumpkin) or any other legitimate reason as to why the incident happened.

In attempting to prove their case, the Crown Attorney would likely call to the stand the loss prevention officer(s), the police, and any other eye witnesses to testify as to what they say. Any CCTV video footage would also be entered as evidence along with any statements of confession made by the accused. The Judge would listen to both sides and render a verdict as to whether the accused is guilty beyond a reasonable doubt.

Of course, nobody can read anyone else’s mind. If the trial Judge does not believe that the accused acted accidentally or had no intent to steal they would face tremendous consequences (criminal record, jail etc.). For this reason, many people charged with theft under $5000 try to resolve their case prior to trial. If the charges can be dropped, it is often not worth the risk of potentially losing at trial.

How Crown Attorneys and the courts assess the seriousness theft under 5000 cases in Ontario

While the charge is always the same, each case is assessed differently. The facts of the case along with the personal circumstances of the accused are extremely important in determining the outcome of any particular case. Like any criminal offence, a history of similar allegations will always be considered an extremely aggravating factor. This includes prior theft or fraud charges that were dropped or withdrawn in the past. The Police and the Crown can still see these prior charges and they will take them into consideration when evaluating your case.

Apart from prior charges or warnings, the amount taken, the behaviour of the accused when caught, who the accused was with at the time (children, mentally disabled people, etc.), and the relationship between the accused and the victim are also extremely important. In shoplifting cases, the Crown and Judge will also look at the items that were stolen in evaluating the case. Luxury items such as expensive clothes, make up, or electronics will attract more scrutiny than everyday necessities.

Shoplifting charges stemming from incidents in stores like The Bay, Sephora, Simons, and Saks Fifth Avenue tend to always involve non-necessities while in Superstore or Wal-Mart cases it will depend on the items. Even if the items taken are all food, the value and types of items will also be assessed. Someone stealing expensive steaks will likely be judged more harshly than someone shoplifting Kraft Dinner.

Theft Under $5000 from the workplace / breach of trust

Cases involving a theft from an employer are considered a breach of trust by Canadian courts. The expression “biting the hand that feeds” is often used to describe them. As such it is an extremely aggravating factor for both the Crown and the Judge in sentencing. This means such cases will attract much harsher penalties in terms of jail time, probation, criminal records etc. In retail theft cases it may involve a fraud under $5000 charge as sometimes employees will intentionally steal by wrongly crediting gift cards or credit cards to themselves.

An employer could be a large company such as Wal-Mart, The Bay, Home Depot, Superstore etc. or an individual person. Even if the employer is a large company with lots of resources the offence is still viewed as extremely serious. In cases involving smaller employers, perhaps the most inherently egregious involve a caretaker stealing from an elderly or disabiled person that they were employed to take care of. Even a first time offender could reasonably expect to be sentenced to jail time if found guilty under such circumstances.

In addition to the classification as a breach of trust, the court will also consider the amount of times the theft occurred.

In many cases the accused has been stealing from their employer for a very long time before getting caught. Eventually the employer, their auditor, or loss prevention notices and takes steps to gather evidence that the theft is occuring. This can include video surveillance, cash register logs, and other financial audits (of gift cards, store credits, etc.).

If the theft has been an ongoing thing this is viewed as much worse than a one time incident. The accused may be charged with multiple individual counts of theft or fraud (ie. theft under $5000 x 8 would mean 8 separate counts). It is up to the police how many counts they lay. Sometimes they will just lay one count and include in the disclosure that there were multiple incidents. If the employee both stole items and defrauded the store, they will be charged with at least one count of theft and one count of fraud (under or over $5000 depending on the amount taken).

An accused should exercise their right to silence and not speak to store security or the police.

Since the employer may only have evidence of the most recent incident, it is extremely important for the accused to remain silent and not speak to their employer or the police about what happened. A person could make their case much worse by admitting to many prior thefts (or frauds) that would not otherwise have been able to be proven. Often the store security will meet with the accused in their office prior to calling the police. The accused employee will sometimes talk and admit to prior thefts/frauds hoping that their honesty will prevent them from losing their job or being criminally charged.

Anyone who steals from a large department store in the Greater Toronto Area is virtually guaranteed to be charged if discovered by loss prevention. The security in these stores operate under policies that require them to call the police. Furthermore all GTA police forces (Toronto, York, Peel, Durham, Halton, etc.) will always charge for theft, fraud, possession of property obtained by crime, or a combination thereof when it relates to employee theft.

By talking to loss prevention and admitting to their behaviour the accused is only making the situation worse as their statements and confessions will ultimately become part of the police evidence to be used against them in criminal court.

I have been charged with theft under $5000. How can I get the charges dropped?

Some cases may be able to be dropped (which is the slang term for withdrawn) without having to go to trial. Your lawyer may be able to work out a deal with the Crown Attorney for them not to proceed with the prosecution. This could be because of a lack of evidence (no reasonable prospect of conviction / RPC) or that it is not in the public interest to prosecute the case. In Ontario, the Crown Attorney’s policy manual dictates that the Crown (prosecutor) should not proceed in matters where there is no RPC or where it is not in the public interest. Sometimes the accused may have to take positive steps up front to convince the Crown Attorney to drop the charges.

Positive up front steps can include things such as counselling, community service, letters of apology, essays of reflection, donations to charity and restitution.

The Crown will want to be satisfied that the underlying issues leading to the offence have been addressed and that the accused took steps to mitigate any harm they caused to society. If the victim has not been made whole (did not get their money or property back) then paying restitution is also an extremely important factor in getting the best result. It is in the accused’s best interest to pay this back up front as a court would likely order them to pay it as part of the sentencing process anyway if they are found guilty.

Every Crown and individual Crown Attorney’s office in Ontario handles theft under $5000 cases differently. Strategies that may work with one particular Crown or at one particular office may be ineffective at another. It is important that your lawyer has experience handling such cases at the same courthouse that your case is at. They likely will have dealt with the same Crowns and know who is best to deal with and who to try to avoid. Only the Crown Attorney has the power to drop criminal charges. The trial Judge does not have this power in Canada.

Can I speak to the store manager and ask them to drop the case?


No. In any criminal proceeding in Canada it is the government (ie. the Crown) that is pressing the charges. The victim, a retail store in many theft cases, is simply a witness to the crime and has no control over the proceedings. Once the police are called they take over the investigation and provide the evidence to the Crown which is the only party that can drop the charges.

Can the charges be dropped before going to court and the taking of fingerprints be avoided?

Those who receive a fingerprint and court date are being charged by the police and their case will have to go to court. While in many cases the person’s lawyer will be able to attend court on their behalf the matter still has to go through the court process. The only exception to this is the extremely rare circumstance of the police officer not inputting into the police computer system that the accused is to be fingerprinted and/or not swearing the charging document (called "the information") at the courthouse. This occurs in less than 1% of all cases and the police have the option to restart the case by serving the accused with another Form 9 Appearance Notice or Form 10 Undertaking afterwards.

I am charged with theft under $5000. What is going to happen when I go to court?

In most circumstances your lawyer will attend court for you and attempt to get the disclosure for your case. The disclosure is the evidence against you as submitted by the police. This can include CCTV video footage, eye witness statements, admissions by the accused, police notes, business and other financial records, and anything else relevant to your case. A new court date will be set to allow your lawyer to review the disclosure and conduct a Crown Pretrial (CPT).

The Crown Pretrial is a fancy term for discussions between your lawyer and the Crown Attorney. If a deal can be reached, hopefully to have the charges dropped, then you may have some steps to take upfront to make it happen such as making a donation to charity, attending counselling, or performing community service.

If the case can’t be dropped then at some point in the future you will have to decide to plead guilty or not guilty and have a trial. In cases where the accused decides to plead guilty often their lawyer will have worked out an arrangement for sentencing to be presented to the Judge.

How long do theft under $5000 cases take to complete in Ontario?

Theft under $5000 cases can take anywhere from one single court appearance to over a year to resolve. Some Toronto/GTA area courthouses move more quickly than others. The time it takes to complete the case will also largely depend on how the accused chooses to proceed. Their options are to try and resolve the case by getting it dropped, plead guilty, or plead not guilty and go to trial. Each of these processes takes a different amount of time. Other factors that are beyond the control of the accused can also delay cases such as a lack of disclosure, delays on the part of the Crown Attorney, and systematic delays.

Currently in 2020 all Ontario courts are physically closed due to the COVID-19 pandemic which is also causing significant delays in all cases and in particular for out of custody accused. As of October 2020, all Ontario Court of Justice courts have implemented Zoom video appearances in an effort to move cases along. Many cases have been backlogged since March as a result of the courts being closed.

Theft Under 5000: the fingerprinting and photographs (mugshot) process

Since theft under 5000 is a Crown elect indictable offence the police have a right to fingerprint and take the mugshot of the accused under the Identification of Criminals Act. In addition to taking the fingerprints (full hand and palm prints) and face pictures (front and side) using a digital machine (Ontario police no longer use black ink), they will also ask personal information about where the person was born, their height, weight, race, eye colour, etc. If the accused person has tattoos or scars the police may also take photographs of them in addition to noting their description in their computer system.

As mentioned, theft under $5000 is not a summary offence in Canada. There is a lot of false information online saying that theft under $5000 is a summary offence (often by people who are not lawyers and who do not know the law). It is a hybrid Crown elect indictable offence. While the Crown has the option to elect to proceed summarily (by summary conviction), they are not bound to do so and at the time of being charged the accused is liable to an indictable offence. Since all forms of theft (over and under $5000) are indictable offences the police have a legal right to fingerprint the accused person and as of 2020 all Ontario forces (Toronto, York, Peel, Halton, Durham, Waterloo / Kitchener, Barrie, Hamilton, OPP etc.) currently choose to do so.

For most first or second time offenders the police will provide a future fingerprint and court date on a Form 9 Appearance Notice or a Form 10 Undertaking which may also include terms such as to stay away from the scene of the crime (often a retail store).

Why are they fingerprinting me before the court date if I have not yet been convicted of anything?

The fingerprinting process ensures that the police can properly identify the accused and distinguish them from other people who may have a similar name and date of birth. Once the fingerprints are taken they are immediately uploaded to CPIC meaning all law enforcement agencies in North America will have access to them. The police use this information to solve crimes they are investigating where an unknown fingerprint was collected and stored in the database.

Can I get my fingerprints and photographs destroyed later?

Depending on the outcome of the case you may be able to have the fingerprints and photographs (mugshot) destroyed. Every police force in the GTA has different wait times and procedures but currently Toronto, York, Peel, Halton, and Durham police forces will destroy fingerprints if the charges are withdrawn and the person is otherwise eligible. If the person already has a criminal record relating to something else, other outstanding charges, a family court restraining order, or a history of suicide or mental health holds the police may refuse to destroy the fingerprints. It is important to note that GTA police forces view fingerprint destruction as a courtesy and not a right.

When the fingerprints are destroyed does this erase all the information about the incident in the police databases?

No it does not. The police will keep all of the information relating to the case indefinitely and also will share it with other police forces, IRCC, and U.S. Customs. This means they will always have access to what happened to your case and it can be used against you if it were to happen again. It can also show up on certain background checks, impact immigration applications, and cause problems travelling. This being said, it is always advisable to request that the fingerprints be destroyed once you are eligible to do so.

What is the process in being charged with theft under $5000?

In some cases the police will arrive on scene, take over the arrest, and either provide the accused with a fingerprint/court date (Form 9 Appearance Notice or Form 10 Undertaking) or take them to the station to be later released and possibly held for bail. This is the most common arrest method in shoplifting type cases. Please note sometimes theft under $5000 is simply referred to as "theft under 5000" or "theft under" on police charging forms.

Other times the accused will be contacted by the police after the incident and asked to attend at the police station to be arrested and provided with this paperwork. In shoplifting cases, this is common in circumstances where the accused refuses to go with the security back to their office and instead drives away. The store security will report the licence plate and description of the accused to the police who then use the Ontario Ministry of Transportation database to try and identify the suspect driver with an associated driver’s licence. If they can identify the suspect, the police will either show up at their home or will call from an unknown or blocked number to ask them to turn themselves in.

The investigation, arrest and charging process in theft or fraud from an employer cases.

In cases involving theft or fraud from the workplace the store security will usually ask the accused to attend at their office for an interview / questions and try to get them to confess prior to calling the police. Unfortunately, many accused will choose to talk and incriminate themselves thinking they may not lose their job or may be able to talk themselves out of it. Once the confession is complete, the store security will then call the police to have the accused arrested and charged.

Virtually all large retail companies such as The Bay, Wal-Mart, Winners, Sephora, Amazon, Home Depot, Superstore and others follow a similar procedure when dealing with employees who steal. In cases of employee theft, they all have policies to report the crime to the police after they fire the employee they've caught.

Theft or fraud from an employer is considered an extremely serious crime in Ontario. In fact, the Ontario Court of Appeal, which is Ontario's highest court, has ruled that a jail sentence is usually appropriate in such cases. Please note that this does not mean everyone found guilty of stealing from their workplace will go to jail but they face an uphill battle in trying to avoid such a severe punishment.

Punishments and consequences of theft under $5000 charges

Those who are charged with theft under $5000, whether they are caught shoplifting, stealing from their workplace, or in another scenario, are subject to up to 2 years in prison if the Crown Attorney proceeds by indictment. If the Crown proceeds by summary conviction they face up to 6 months in jail and probation. Anyone who is sentenced to jail or probation will also receive a permanent criminal record unless they are discharged by the court. The judge by law can not order a discharge in cases where the accused is sentenced to jail or is given a conditional sentence aka "house arrest" (even for one day).

In addition to jail and a criminal record, those charged with theft under $5000 (given a Form 9 or 10 with a fingerprinting and court date) also have their identity and charge information uploaded to the RCMP CPIC database which can cause problems with employment background checks, Canadian immigration (IRCC) status and applications, and result in lifelong problems for those wanting to travel to, work in, or move to the U.S. in the future.

Many charged with theft under $5000 are also professionals who are members of regulatory bodies such as physicians, teachers, lawyers, dentists, nurses, engineers, etc. Most professional governing bodies have rules relating to conduct unbecoming. Being charged with a crown elect indictable offence such as theft under $5000 will be cause for an investigation and possible sanctions from most professional societies.

Will the charge of theft under $5000 show up on an employment background check?

There are two main types of employment background checks:

  1. through the local police force, and

  2. through a 3rd party background check company.

If the check is done through the local police force the charge will only show up if it is pending, the person is convicted, or while the person is on probation. In the Greater Toronto Area all police forces currently require you to live in their jurisdiction with the exception of the York Regional Police on their most basic check only. Charges that are withdrawn should not show up on a regular police background check.

It is important to note though that even withdrawn charges can show up on a vulnerable sector screening check but there is a process to try to have them removed if this were to happen prior to the background check being submitted to an employer or volunteer agency. A vulnerable sector check may be required for employment/volunteer positions that relate to working with children, the elderly, and the mentally disabled. Most teachers and healthcare professionals such as Nurses, RPNs, PSWs, and caregivers require a vulnerable sector check.

Employers will usually ask potential employees to consent to a 3rd party company criminal background check. This involves the 3rd party background check company asking the RCMP to check the CPIC database for any entries related to a particular name and date of birth. If there is a match the result will come back as “not clear”. It is important to note that these checks do not state what the charges were (theft) nor are they definitive without fingerprint analysis.

In cases of withdrawn charges, the job applicant may be given the opportunity to provide the above noted police background check to prove they do not have a criminal record if that is the case.

How do theft under $5000 charges impact immigration / IRCC status and applications?

Anyone charged with an indictable offence in Canada who is not a citizen can expect to have the IRCC investigate their case and possibly take action. Theft under $5000 is an indictable offence with a maximum penalty of 2 years in prison. Non citizens who are sentenced to more than 6 months in jail are usually deported from Canada. Normally IRCC will want to ensure that the outcome of the case does not make you inadmissible and deportable from Canada.

Approximately half of our clients are in the immigration system. They are often students, on work permits, or PR card holders. Dealing with IRCC to ensure they do not have immigration problems is therefore a big part of our practice. There is time sensitive paperwork and other actions that should be taken to avoid problems. Sometimes we have to write letters for our clients as well. Ultimately, IRCC wants to ensure that the result of the case does not render the applicant inadmissible. As those who lose their status are subject to deportation it is extremely important that their IRCC applications are handled correctly from the start.

I read somewhere else, or was told by someone else, that theft under $5000 is a summary offence. Is this true?

No. Theft under $5000 is not a summary offence. Like most crimes it is a Crown elect indictable offence. This means the Crown Attorney has the option to proceed summarily or by indictment. When you are charged you are liable to an indictable offence. If it were not indictable the police would not have the authority to fingerprint you. Unfortunately there is a lot of misinformation about this particular issue and it is often circulated by people who are not lawyers and do not know the law (and should not be relied on for legal advice).

For reference Section 334 (b) of the Criminal Code reads as follows:

334 Except where otherwise provided by law, every one who commits theft

  • (b) if the value of what is stolen is not more than $5,000, is guilty

    • (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

    • (ii) of an offence punishable on summary conviction.
Theft Under $5000 is clearly not a straight summary conviction offence in Canada. It is a hybrid indictable offence.

Can theft under $5000 charges cause problems travelling to the United States?

Theft under $5000 is considered a crime of dishonesty and is classified by the United States as a moral turpitude offence for which a person can be denied entry. The maximum penalty for the offence is 2 years in prison if the Crown proceeds by indictment which is beyond the U.S. standard 1 year maximum penalty exemption. The U.S. therefore considers theft under $5000 to be the equivalent of a felony conviction.

The U.S. Immigration and Nationality Act (INA) also specifies that a person can be denied entry simply for admitting to theft. This means that a conviction is not needed for them to refuse admission into the country. Just being charged alone can cause people to be denied entry at the border even if the charges were withdrawn. For this reason, it is extremely important for anyone charged with theft under $5000 to get immediate legal advice as there are several things a person can do to proactively prevent problems. Once a person is denied entry their refusal is documented in the U.S. Customs computer system leading to potential lifelong refusals of entry at the border.

How would the U.S. know if I was charged if the case was withdrawn? Does it show up when they swipe my passport?

Canada gives U.S. Customs access to all police databases including the RCMP CPIC database which compiles information from all police forces in Canada. In addition, the information about those who are charged is stored in local police force databases indefinitely. All of this information is accessible to U.S. Customs.

It is not known for sure what exactly shows up when U.S. Customs swipes a passport. Historically they would have to manually query the person's name in the computer system but this process may have been refined as of 2020. Often they will ask whether you have ever been arrested before conducting a search. Anyone who has been charged with theft under $5000 (given a fingerprinting and court date) has been arrested even if they are released on a Form 9 or 10 without being handcuffed. For those held for bail and released via a Release Order the fact that they were under arrest is much more obvious.

If you are looking for even more specific information, please see lawyer Mark Zinck's separate website on theft under $5000 and shoplifting related charges or give us a call at 647-228-5969 for a free case review.



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