Shoplifting and Theft Under $5,000 in Ontario: What You Need to Know

A theft under $5,000 charge is one of the most common criminal offences in Ontario. It covers everything from shoplifting a few items at a retail store to pocketing cash from an employer. Many people assume this is a minor matter — something a court will dismiss quickly. That assumption is wrong. A conviction for theft under $5,000 results in a permanent criminal record that can affect your employment, your ability to travel, and, if you are not a Canadian citizen, your immigration status.

If you are facing this charge in Barrie, Simcoe County, or anywhere in Ontario, understanding the law and your options is the first step toward protecting your future.

The Criminal Code Definition: Section 334

Theft is defined in section 322 of the Criminal Code of Canada. 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.

Section 334 sets the dividing line based on value:

• Theft under $5,000 (s. 334(b)) — a hybrid offence, meaning the Crown can proceed by summary conviction or by indictment
• Theft over $5,000 (s. 334(a)) — a straight indictable offence carrying a maximum of 10 years imprisonment

The $5,000 threshold is based on the value of the property at the time of the offence. If the value is disputed, the Crown must prove it beyond a reasonable doubt. This distinction matters significantly for sentencing. Theft over $5,000 is always treated as a more serious matter and is prosecuted on indictment. If you are unsure about the difference between summary conviction and indictable offences, it is worth understanding before your court date.

Common Scenarios That Lead to Theft Under $5,000 Charges

Shoplifting

Shoplifting is the most common form of theft under $5,000. It typically involves concealing merchandise in a bag, pocket, or clothing and leaving the store without paying. Some cases involve switching price tags or scanning a lower-priced item at a self-checkout.

Retail stores across Ontario — including large chains and small businesses in Barrie and Simcoe County — invest heavily in loss prevention. Surveillance cameras, electronic article surveillance (EAS) tags, plainclothes loss prevention officers, and receipt-checking policies are standard. Many people are caught before they even leave the store.

Employee Theft

Taking cash from a register, merchandise from a stockroom, or supplies from a workplace is theft. Employers often involve the police, and the breach of trust involved in employee theft can lead to harsher sentencing. In some cases, the Crown may also consider laying fraud charges, particularly where the conduct involves a pattern of deception.

Gas Drive-Offs

Leaving a gas station without paying is theft. Stations have cameras, and licence plate information is reported to police. These charges are straightforward to prosecute.

Other Common Scenarios

• Taking items from a gym locker or communal space
• Eating at a restaurant and leaving without paying (known as “dine and dash”)
• Taking packages from a porch or mailbox
• Removing items from a construction site or shared workspace

How Stores Handle Shoplifting: Loss Prevention and Citizen’s Arrest

If you are stopped by a loss prevention officer (LPO) inside or just outside a store, you should know how the process typically works — and what your rights are.

Under section 494 of the Criminal Code, a property owner or their agent (such as a store employee) can make a citizen’s arrest if they find a person committing a criminal offence on or in relation to their property. In practice, this means LPOs can detain you if they observe you concealing merchandise and attempting to leave without paying.

However, a citizen’s arrest must be carried out within strict limits:

• The person making the arrest must actually witness the offence or have reasonable grounds to believe it was committed
• They must deliver the arrested person to a peace officer (police) “forthwith” — without unreasonable delay
• The force used must be reasonable and proportionate

If an LPO uses excessive force, conducts an unreasonable search, or detains you for an extended period without calling police, your Charter rights may have been violated. This can have real implications for your case, including the potential exclusion of evidence.

Important: you are not required to sign any document, make a statement, or pay a “civil recovery” demand at the store. Anything you say can be used against you in court. You have the right to remain silent and the right to speak with a lawyer before answering questions.

Penalties for Theft Under $5,000

Because theft under $5,000 is a hybrid offence, the available penalties depend on how the Crown elects to proceed.

Summary Conviction

• Maximum penalty: 2 years less a day imprisonment and/or a $5,000 fine
• Most first-time shoplifting cases prosecuted summarily do not result in jail — but a conviction still means a criminal record

Indictment

• Maximum penalty: 2 years imprisonment
• The Crown typically proceeds by indictment when the value is closer to $5,000, there is a pattern of offending, or aggravating factors are present (breach of trust, planning, etc.)

Factors That Influence Sentencing

Courts consider a range of factors, including:

• The value of the stolen property
• Whether the property was recovered
• Your criminal record (or lack thereof)
• Whether the offence involved a breach of trust (e.g., employee theft)
• Evidence of planning versus impulsive behaviour
• Your personal circumstances — employment, mental health, addiction issues, family responsibilities
• Whether you have taken steps toward rehabilitation (counselling, restitution)

For many first-time offenders, the realistic outcomes range from a diversion program or discharge to a suspended sentence with probation. Jail is uncommon for a first offence involving low-value shoplifting, but it is not impossible — particularly where the accused has a prior record or the circumstances are aggravating.

Diversion Programs and Alternative Measures

Ontario offers diversion programs (also called alternative measures or extrajudicial measures) for certain theft under $5,000 charges. These programs allow the accused to take responsibility for the offence and complete specific conditions — such as community service, a letter of apology, a charitable donation, or an anti-theft course — in exchange for the Crown withdrawing the charge.

How Diversion Works

1. Your lawyer requests that the Crown consider diversion — this is typically done at or shortly after your first court appearance
2. The Crown reviews your eligibility based on the nature of the offence, your criminal history, and other factors
3. If accepted, you are referred to a diversion program and given conditions to complete within a set timeframe (usually 4 to 6 months)
4. Once you complete the conditions, the Crown withdraws the charge — meaning no criminal record

Eligibility

Diversion is most commonly available to:

• First-time offenders with no prior criminal record
• Cases involving low-value property
• Situations where the accused accepts responsibility
• Non-violent offences with no significant aggravating factors

Diversion is not automatic. The Crown has discretion, and some Crown offices in Simcoe County and across Ontario apply different thresholds. Having a lawyer advocate for diversion early in the process significantly increases the likelihood of acceptance.

When Is a Discharge Possible?

If diversion is not available — or if the matter proceeds through the court process — a discharge may still be possible. Under section 730 of the Criminal Code, a court can grant an absolute or conditional discharge if:

1. There is no minimum penalty for the offence (theft under $5,000 has no minimum)
2. A discharge is in the best interests of the accused and not contrary to the public interest

An absolute discharge takes effect immediately and results in no criminal record after one year (when the RCMP purges the record). A conditional discharge comes with a probation order — once the conditions are satisfied and the probation period expires, the record is purged after three years.

A discharge is a valuable outcome because it means you are found guilty but do not receive a conviction. For employment, travel, and immigration purposes, this is a critical distinction.

Courts are more likely to grant a discharge when:

• The accused is a first-time offender
• The value of the stolen property is low
• The accused has shown remorse and taken rehabilitative steps
• A criminal conviction would have disproportionate consequences on the accused’s life (e.g., loss of employment, immigration consequences)

Impact on Your Criminal Record and Employment

A conviction for theft under $5,000 results in a permanent criminal record unless you later obtain a record suspension (formerly called a pardon). A criminal record for a theft offence will appear on police background checks, vulnerable sector checks, and CPIC queries.

The practical consequences are significant:

• Employment — Many employers run criminal background checks. A theft conviction raises immediate red flags, particularly for positions involving cash handling, inventory, financial responsibility, or access to client property. Some professions and licensing bodies will deny certification outright.
• Travel — A criminal record can make you inadmissible to the United States and other countries. U.S. Customs and Border Protection has access to Canadian criminal records through shared databases, and theft is a crime involving moral turpitude under U.S. immigration law.
• Volunteering — Organizations that work with vulnerable populations require clean background checks.
• Housing — Some landlords and property management companies conduct background checks on prospective tenants.
• Professional licensing — Regulatory bodies for teachers, nurses, accountants, real estate agents, and many other professions require disclosure of criminal convictions and may refuse to issue or renew licences.

This is why avoiding a conviction — whether through diversion, a discharge, or an acquittal — is so important. If you are wondering whether the stakes justify hiring a lawyer, this guide addresses that question directly.

Immigration Consequences

If you are not a Canadian citizen, a theft conviction can have devastating immigration consequences under the Immigration and Refugee Protection Act (IRPA).

• Permanent residents may be found inadmissible for serious criminality if the offence is punishable by a maximum term of 10 years or more. While theft under $5,000 carries a maximum of 2 years on indictment, Crown election matters — and the interaction between IRPA provisions and hybrid offences is complex.
• Temporary residents, refugee claimants, and those on work or study permits face even broader inadmissibility provisions. A conviction for any offence can jeopardize status, applications for permanent residence, or sponsorship.
• A finding of criminality (as opposed to serious criminality) applies to offences punishable by way of indictment with a maximum term of less than 10 years, and can result in a removal order for non-citizens.

The immigration consequences of a criminal conviction often far exceed the criminal penalty itself. If you are not a Canadian citizen and have been charged with theft, it is essential that your criminal lawyer understands the immigration dimensions of your case.

What to Do If You Have Been Charged

If you have been charged with shoplifting or theft under $5,000 in Barrie, Simcoe County, or anywhere in Ontario, take these steps:

1. Do not discuss the incident with anyone other than your lawyer — statements made to friends, family, or on social media can be used as evidence
2. Do not contact the complainant or return to the store where the incident occurred if your bail conditions prohibit it
3. Obtain and review your disclosure — the Crown’s evidence package — with your lawyer
4. Attend every court date — failing to appear is a separate criminal offence under section 145 of the Criminal Code
5. Consult a criminal defence lawyer as early as possible — the earlier a lawyer is involved, the more options are available to you

Contact Mor Fisher LLP

A theft charge does not have to define your future. Whether you are a first-time offender or dealing with a more complex situation, the criminal defence lawyers at Mor Fisher LLP can assess your case, pursue diversion or a discharge where appropriate, and fight for the best possible outcome.

Call 705-252-2828 or contact us online to schedule a consultation. We represent clients throughout Barrie, Simcoe County, and Ontario.