Defending Theft Under $5,000 and Shoplifting Charges in Toronto, Brampton, Newmarket, Milton, Hamilton and Barrie
Theft under $5,000 — including shoplifting — is one of the most commonly charged offences in Ontario. It affects people from every background, and a single lapse in judgment can result in a criminal record that follows you for years. Employment, travel, immigration status, and professional licensing can all be affected by a theft conviction, even when the value of the property taken was small.
Our lawyers have defended theft and shoplifting charges across Ontario and regularly appear in courts throughout the GTA including Toronto, Newmarket, Oshawa, Brampton, Milton, Hamilton, and Barrie.
Daniel Brown is among a small number of Ontario criminal lawyers certified as a specialist in criminal law by the Law Society of Ontario. The firm is ranked among Canada's Top Criminal Law Boutiques by Canadian Lawyer Magazine, recognized by Best Lawyers, and named one of Canada's Best Law Firms for 2026 by The Globe and Mail.
Frequently Asked Questions About Theft and Shoplifting Charges
What is the difference between theft under $5,000 and theft over $5,000?
What does the Crown have to prove?
Can a theft charge be diverted?
What defences are available to a theft charge?
What are the penalties for theft?
What is theft?
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 own use, anything — whether animate or inanimate — with the intent to permanently or temporarily deprive the owner of it. The offence covers taking property, using someone else's property without authorization, and receiving or possessing property knowing it was obtained by theft.
What is the difference between theft under $5,000 and theft over $5,000?
The distinction is based on the value of the property taken. Theft under $5,000 is a hybrid offence — it can be prosecuted summarily or by indictment. Theft over $5,000 is a straight indictable offence carrying a maximum of ten years. The value threshold affects not only the maximum penalty but also how the Crown approaches the file. Theft under $5,000 is far more likely to be resolved through diversion, a withdrawal, or a discharge. Theft over $5,000 is treated as a more serious matter at every stage.
What is shoplifting?
Shoplifting is not a separate offence in the Criminal Code. It is simply theft under $5,000 in a retail context. A person is charged with theft under $5,000 if they are alleged to have taken merchandise from a store without paying. The charge is the same whether the item was worth five dollars or five thousand — what matters is the value of the property taken and the intent of the person taking it.
Loss prevention officers frequently detain people they suspect of shoplifting and involve police. The manner of the detention, the evidence collected, and the statements made during that process all become relevant to the defence.
What does the Crown have to prove?
To obtain a conviction for theft, the Crown must prove beyond a reasonable doubt:
- The accused took or converted property belonging to another person.
- The taking was fraudulent — meaning it was dishonest and without the owner's consent.
- The accused had no colour of right — no honest belief that they were entitled to the property.
- The accused intended to deprive the owner of the property, whether permanently or temporarily.
In shoplifting cases, the Crown typically relies on store video, loss prevention testimony, and the recovery of unpaid merchandise. Each piece of evidence is open to challenge.
Can a theft charge be diverted?
Many theft under $5,000 charges are eligible for diversion, particularly where the accused has no prior criminal record and the value of the property was modest. Diversion programs vary by jurisdiction, but they generally require the accused to complete community service, make a charitable donation, attend a program, or some combination. Once the conditions are met, the charge is withdrawn and no criminal record results.
Not every case qualifies. The Crown considers the circumstances of the offence, the accused's background, and the position of the complainant. A defence lawyer can identify whether diversion is available and present the strongest possible application for it.
What defences are available to a theft charge?
The defences depend on the facts. Common approaches include:
Colour of right. If the accused honestly believed they were entitled to the property — even if that belief was mistaken — it negates the mens rea required for theft. This defence arises in disputes between former partners, business associates, or family members over shared property.
No intent to deprive. Borrowing something with the intention to return it, or taking it by mistake, can negate the intent element. The Crown must prove the accused meant to permanently — or at least temporarily — deprive the owner.
Identity. In retail theft cases, the quality of video evidence and the reliability of loss prevention identification can be challenged. Crowded stores, poor camera angles, and delayed confrontations all affect the strength of the identification.
Charter violations. Where police or loss prevention conducted an unreasonable search, failed to advise the accused of their right to counsel, or obtained statements improperly, the evidence may be excluded.
What are the penalties for theft?
Theft under $5,000, prosecuted summarily, carries a maximum of two years less a day. By indictment, the maximum is two years. Theft over $5,000 carries a maximum of ten years. In practice, most first-time offenders charged with theft under $5,000 do not receive jail sentences. Common outcomes include absolute or conditional discharges, fines, probation, and restitution orders.
The real cost of a theft conviction is often the criminal record itself. A theft conviction in the CPIC database can disqualify a person from employment in finance, healthcare, education, and government. It can prevent entry to the United States, delay or derail immigration applications, and affect custody proceedings. For many people charged with a minor theft, keeping the record clean is the primary objective — and it is often achievable with experienced counsel.
Related Charges
Theft charges sometimes accompany other allegations. If you are facing related charges, the following pages may be relevant:
If you or someone you know has been charged with theft or shoplifting, contact Daniel Brown Law at (416) 297-7200. Many theft charges can be resolved without a criminal record — but the earlier you get legal advice, the more options are available.