Understanding a theft charge in Ontario
If you have been charged with theft, or you are worried that a store, an employer, or the police are looking into something you did, the first thing to understand is that "theft" in Canadian law is a specific, defined offence with specific elements the Crown has to prove. It is not just a label attached to anything that looks bad. Theft is set out in section 322 of the Criminal Code, and it happens when a person fraudulently and without colour of right takes, or converts to their own use or to the use of another person, anything, whether animate or inanimate, with intent to deprive the owner of it, either temporarily or permanently. That definition matters, because every phrase in it is something the Crown must establish beyond a reasonable doubt: that you took or converted property, that you did so without any honest claim to a right to it, and that you intended to deprive the owner of it.
Being charged does not mean you did any of that. It means a police officer, or a loss prevention officer working with police, formed a belief that there were reasonable grounds. Charges get laid every day in situations that turn out to involve misunderstandings, mistaken identity, disputes about who actually owned something, or conduct that does not meet the legal definition of theft even if it looks suspicious on a security video. Understanding what you are actually up against, and what the Crown will need to prove, is the starting point for figuring out how to respond.
Theft over $5,000 and theft under $5,000
Canadian law splits theft into two tiers based on the value of the property involved, and the tier your charge falls into has a real effect on how the case proceeds and what is at stake.
- Theft over $5,000 is charged under section 334(a) of the Criminal Code. It is a straight indictable offence, meaning it is treated as a more serious matter procedurally from the outset, generally proceeds toward the Ontario Court of Justice or, depending on election, a higher route, and carries a maximum sentence of up to 10 years of imprisonment.
- Theft of $5,000 or under is charged under section 334(b). This is a hybrid offence, meaning the Crown can choose to proceed by summary conviction or by indictment. Most theft under $5,000 charges, including typical shoplifting cases, proceed summarily, but the Crown retains the discretion to elect indictment depending on the circumstances, including prior record, the nature of the items, or whether violence or a weapon was involved in a related charge.
The $5,000 threshold is based on the fair market value of the property at the time of the offence, not the price a store paid for it or an inflated retail estimate. This can matter more than people expect: if you are accused of taking multiple items and the total valuation pushes the charge over $5,000, you are facing a materially different offence than if the same facts had been valued at $4,900.
Related and overlapping offences
Theft charges often arrive alongside, or get confused with, several other property offences. It helps to understand how they differ:
- Shoplifting is not a separate offence in the Criminal Code. It is simply theft, almost always charged as theft under $5,000 under section 334(b), arising from retail premises. Loss prevention officers and store policies use the word "shoplifting," but the charge on your record will say theft.
- Possession of property obtained by crime, under section 354, is a different offence from theft itself. It applies where a person possesses property knowing it was obtained through the commission of an offence, even if they were not the one who originally took it. Someone can be charged with possession without ever being alleged to have stolen anything personally.
- Break and enter, under section 348, applies where a person enters a place without authorization with intent to commit an indictable offence, or actually commits one once inside. Where the place is a dwelling-house, the maximum sentence rises to life imprisonment, reflecting how much more seriously the law treats an intrusion into a home.
- Robbery, under sections 343 and 344, is theft accompanied by violence or threats of violence used to accomplish the taking, or to overcome resistance. Because the offence layers violence onto theft, the maximum sentence is also life imprisonment.
- Taking a motor vehicle without consent, under section 335, addresses situations where a vehicle is taken or used without the owner's consent, which can arise in circumstances that look like theft but are treated as a distinct offence with its own elements.
If you have been charged with more than one of these offences arising from the same incident, or you are not entirely sure which one applies to your situation, that distinction is worth sorting out early, because the elements, the maximum penalties, and the available resolutions differ considerably between them.
Penalties and sentencing for theft
One of the first questions people ask after being charged is simple: what happens to me now, and how bad could this get? The honest answer is that it depends heavily on the specific facts, the value of the property, whether you have a prior record, and how the case is resolved. But understanding the legal maximums and the realistic range of outcomes helps put the situation in perspective.
Maximum penalties by tier
- Theft over $5,000 (section 334(a)): up to 10 years of imprisonment, as an indictable offence.
- Theft of $5,000 or under (section 334(b)), proceeding by indictment: a higher maximum than the summary route, reflecting the Crown's decision to treat the matter more seriously.
- Theft of $5,000 or under (section 334(b)), proceeding summarily: up to 2 years less a day of imprisonment, and/or a fine, as is typical for summary conviction offences.
These are legal maximums, not typical outcomes. The vast majority of theft charges, particularly first offences involving modest amounts of property, do not result in anywhere close to the maximum sentence. Courts in Ontario, including the Ontario Court of Justice where most of these matters are heard, exercise considerable discretion, and sentencing for theft depends on an individual assessment of the circumstances, the person's history, and the principles of sentencing set out in the Criminal Code, including proportionality and restraint.
Discharges
For many first-time or lower-level theft matters, Ontario courts have the option of imposing a discharge rather than a conviction, provided it is in the accused's best interests and not contrary to the public interest.
- An absolute discharge means the person is deemed not to have been convicted, and after a set period the record becomes eligible for removal from the automated systems most background checks rely on.
- A conditional discharge comes with a probation order and conditions to satisfy over a period of time, but on successful completion, the person is also deemed not to have been convicted.
Discharges are not available for every offence in the Criminal Code, and they are not guaranteed for theft either, but where the offence and the circumstances make one realistic to pursue, it can make a significant difference to a person's future, because it avoids a formal criminal conviction while still holding the person accountable through the terms imposed.
Diversion programs
Depending on the circumstances, particularly for first-time, lower-value theft allegations, the Crown may agree to refer a matter to a diversion or alternative measures program instead of proceeding with a prosecution to conviction. These programs typically involve some combination of community service hours, a charitable donation, an educational session, or other conditions. On successful completion, the Crown withdraws the charge. Diversion is not automatic and is not available in every case; it depends on the value involved, whether there is a prior record, and the specific policies applied by the Crown's office handling the file. Where it is available, it is often one of the most favourable ways to resolve a theft charge, because it avoids both a conviction and a formal finding of guilt altogether.
Restitution and other terms
Courts can also order restitution, meaning repayment to the person or business who suffered the loss, as part of a sentence, a condition of probation, or a term of a diversion agreement. Restitution addresses the financial harm caused, separate from any other penalty imposed. Depending on the resolution, a sentence may also include probation, a period of custody in more serious or repeat cases, or a combination of these along with ancillary orders. Every case is different, and the right approach depends closely on the facts, the value involved, and the person's history.
Beyond the sentence: the consequences of a theft record
For most people facing a theft charge, the sentence itself is only part of what worries them. A criminal record for theft, even a relatively minor one, can follow a person into parts of life that have nothing to do with the courtroom. Understanding these consequences is part of understanding why the outcome of the case matters so much, beyond whatever specific penalty a judge might impose.
A criminal record
A conviction for theft, whether under section 334(a) or 334(b), results in a criminal record. That record can show up in background checks conducted by employers, landlords, volunteer organizations, and licensing bodies, sometimes for years after the matter is concluded. Pardons, formally called record suspensions, are available after a waiting period, but they take time, cost money, and are not automatic. This is one of the central reasons that resolutions like discharges or diversion, where realistic, are worth pursuing seriously: they can avoid a formal conviction altogether.
Employment and positions of trust
A theft charge or conviction can be especially damaging for people who work in, or hope to work in, positions involving trust, money handling, or fiduciary responsibility. Employers in banking, retail management, accounting, healthcare, and many regulated professions often ask directly about criminal history, and a theft-related record raises particular concerns given the nature of the offence. Some professional bodies require members to disclose charges or convictions, and a finding related to honesty or theft can affect licensing, bonding eligibility, or standing within a regulated profession. Even where a formal disclosure requirement does not apply, many employers conduct background checks as a matter of course, and a theft record can close doors that might otherwise have been open.
Bonding and insurance
Certain jobs, particularly ones involving cash handling, financial responsibility, or access to client property, require an employee to be bondable, meaning an insurer is willing to cover the employer against losses caused by that employee's dishonesty. A theft conviction is one of the most common reasons a person becomes difficult or impossible to bond, which can foreclose entire categories of employment even where the individual conviction seems minor in isolation.
Immigration consequences
For people who are not Canadian citizens, a theft charge or conviction can carry serious immigration consequences. Depending on the outcome and the specific circumstances, a conviction can affect a person's status, their ability to become a permanent resident or citizen, or in some cases their ability to remain in Canada at all. Because immigration law and criminal law intersect in ways that are highly fact-specific, anyone who is not a Canadian citizen facing a theft charge should treat the immigration dimension as seriously as the criminal one, and should raise it early so that any resolution takes those consequences into account.
Travel to the United States
A theft conviction, even a relatively minor one, can also affect a person's ability to enter the United States. American border officials have their own criteria for admissibility, and a criminal record, including one involving what is classified in some contexts as a crime of moral turpitude, can result in a person being refused entry or needing a waiver to travel. Even a discharge, while it does not amount to a conviction under Canadian law, can sometimes still surface in cross-border databases and cause complications at the border. This is another reason the specific way a theft matter is resolved, not just whether it results in "a record" in a loose sense, deserves careful attention.
None of this is meant to cause alarm for its own sake. It is meant to explain why theft charges, even ones involving modest amounts of property, are worth taking seriously and addressing thoughtfully rather than simply hoping the problem goes away on its own.
Defences and strategy in theft cases
Every theft case turns on its own facts, and there is no single approach that applies to every charge. That said, there are recurring categories of defence and strategic considerations that come up again and again in theft prosecutions, and understanding them can help you make sense of your own situation.
Colour of right
Section 322 specifically requires that the taking or conversion be "without colour of right." Colour of right refers to an honest, even if mistaken, belief in a legal right to the property in question, whether that belief arises from a claim of ownership, a right to possession, or a genuine misunderstanding about an agreement, debt, or arrangement between the parties. If a person genuinely believed they were entitled to take or use the property, whether that belief was legally correct or not, the Crown's case can fail on this element alone, because theft requires the absence of any honest claim of right, not just factual disagreement about who was "really" entitled to something.
Honest mistake
Closely related to colour of right is the broader category of honest and reasonable mistake. This can include situations where a person misunderstood which item belonged to them, forgot an item was in a cart or bag, was distracted by children or other circumstances at a till, or misread a pricing or self-checkout system. Because theft requires proof of intent to deprive the owner of property, an honest mistake that negates that intent can be a complete answer to the charge, even where the Crown can prove the physical act of taking occurred.
Mistaken identity
In retail and public settings, identification of the person alleged to have committed a theft is not always as solid as it first appears. Security footage can be low quality, loss prevention officers can be mistaken about who they observed, and in busy stores more than one person can be wearing similar clothing. Where identity is genuinely in question, this becomes a central issue for the Crown to prove.
Absence of intent
Beyond simple mistake, the Crown must prove the specific intent to deprive the owner of the property, even if only temporarily. Circumstances that undercut that intent, such as an intention to pay before leaving, a plan to return an item, or confusion about the transaction, can all be relevant to whether the necessary intent existed at the time.
Duress
Where a person's actions were the result of a threat of harm compelling them to act against their will, the defence of duress may be available, depending on the specific circumstances and how closely they fit the legal requirements for the defence.
Charter and evidentiary issues
Theft cases frequently involve evidence gathered by store security, loss prevention staff, or police, and how that evidence was gathered matters. Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure, and issues can arise around how a person was detained, questioned, or searched, whether by store staff acting with police involvement or by police directly. Where evidence was obtained in a way that breached Charter rights, an application to exclude that evidence can significantly affect the Crown's ability to prove its case. Beyond Charter issues, straightforward evidentiary weaknesses, gaps in the chain of continuity for recovered property, inconsistent witness statements, or incomplete documentation, can also be significant.
Strategy beyond trial
Not every case is suited to a trial, and not every good outcome comes from fighting the charge to a verdict. Sometimes the strongest path forward is negotiating a resolution, whether that is diversion, a discharge, or a reduced or withdrawn charge, particularly where the evidence is strong but the circumstances of the person and the offence support a more lenient resolution. Assessing which approach fits your specific case, trial, negotiated resolution, or diversion, requires a careful look at the evidence, your record, and what matters most to you, whether that is avoiding a record, minimizing cost and time, or contesting the allegation outright.
The court process: from arrest to resolution
Not knowing what happens next is often one of the most stressful parts of being charged with an offence. Here is a general outline of how a theft matter typically moves through the system in Ontario, recognizing that the specific path in your case will depend on its particular facts.
Arrest, detention, and release
Theft matters often begin with a store detaining someone under citizen's arrest powers and calling police, or with police responding directly to a reported theft. Depending on the circumstances, a person may be released by police with a promise to appear, an undertaking with conditions, or, in more serious or repeat circumstances, held for a bail hearing before a justice. Conditions imposed at this stage, such as staying away from a particular store or area, can matter for day-to-day life and should be understood clearly.
First appearance
The matter proceeds to the Ontario Court of Justice for a first appearance, where the charge is confirmed, disclosure from the Crown is requested or reviewed, and the matter is generally set over for further steps rather than resolved immediately. This is typically a procedural step rather than a moment where evidence is argued.
Disclosure and review
The Crown is required to provide disclosure, meaning the evidence it intends to rely on, including any security footage, witness statements, and police notes. Reviewing disclosure carefully is a central part of assessing the strength of the case, identifying weaknesses, and figuring out what defences or arguments are realistically available.
Crown pre-trial and resolution discussions
Before a matter proceeds to trial, there is typically an opportunity for discussions with the Crown about how the case might be resolved, whether through diversion, a plea to a reduced charge, a joint submission on sentence, or withdrawal of the charge where the evidence does not support conviction. These discussions are a routine and important part of the process, not a sign of weakness in a case.
Diversion, where available
Where the Crown agrees the matter is suitable, it may be referred to a diversion or alternative measures program at this stage, generally requiring the completion of certain conditions in exchange for withdrawal of the charge upon completion.
Trial
If the matter is not resolved short of trial, it proceeds to a trial in the Ontario Court of Justice, or in more serious indictable matters, potentially with an election as to court level. At trial, the Crown must prove every element of the offence beyond a reasonable doubt, and the defence can test the Crown's evidence, call evidence of its own, and make legal arguments, including Charter applications where appropriate.
Sentencing
Where a matter results in a finding of guilt, whether by plea or after trial, the court moves to sentencing, considering the specific facts, any victim impact information, the person's circumstances and record, and the applicable sentencing principles, before imposing a sentence that may range from a discharge to a period of custody depending on the severity and circumstances of the offence.
How Gambriani Law defends theft cases
Gambriani Law PC is a criminal defence practice based in North York, serving clients across Toronto and the Greater Toronto Area, with services available in both English and Farsi. The firm is led by Sourena Sarbazevatan, who has more than 10 years of experience and appears at all levels of Ontario's courts. When it comes to theft charges specifically, the general approach follows a consistent structure, adapted to the facts of each individual case.
Understanding the full picture first
Before any strategic decisions are made, the starting point is a careful review of the charge itself, the disclosure provided by the Crown, and your own account of what happened. This includes looking closely at how the allegation arose, whether through store security, loss prevention involvement, or a police response, and identifying what evidence actually exists to support the charge, as opposed to what is simply asserted.
Assessing the evidence critically
Security footage, loss prevention reports, and police notes are not automatically reliable just because they exist. Footage can be incomplete, ambiguous, or open to more than one interpretation. Loss prevention officers can make mistakes about identification or about what they actually observed. Police notes can be inconsistent with other evidence in the file. Part of defending a theft case involves scrutinizing this evidence rather than accepting it at face value.
Identifying the right defences
Depending on what the evidence shows, this can mean exploring colour of right, honest mistake, absence of intent, identification issues, or Charter arguments relating to how evidence was gathered. Not every defence applies to every case, and identifying which ones genuinely fit the facts, rather than raising arguments that do not, is central to an effective approach.
Weighing resolution options honestly
Where the evidence is strong, or where a negotiated resolution genuinely serves your interests better than proceeding to trial, that option is discussed openly, including the realistic availability of diversion, a discharge, or a reduced charge given your specific circumstances and the policies of the Crown's office handling the file. Where contesting the charge is the right path, the case is prepared accordingly, including bringing any appropriate Charter or evidentiary applications.
Communicating clearly in English and Farsi
Because Gambriani Law PC serves clients in both English and Farsi, communication happens in whichever language you are most comfortable with, so that decisions about your case are made with a full and clear understanding of your options, rather than through a language barrier that leaves things unclear.
Nothing here is a promise about how any particular case will turn out. Every theft matter depends on its own facts, and this description is meant to explain the general approach taken to these cases, not to predict or guarantee any specific result.
Why representation matters, and why language matters too
Facing a theft charge without a clear understanding of the process, the evidence against you, and your realistic options is a difficult position to be in. Theft charges are common enough that it can be tempting to assume they are simple or minor, but as the sections above make clear, the consequences can extend well past whatever sentence a court imposes, touching employment, professional licensing, immigration status, and even the ability to travel. Having someone review the disclosure, assess the strength of the Crown's case, and walk you through the realistic paths forward, whether that is diversion, a negotiated resolution, or a trial, allows you to make decisions from a position of understanding rather than guesswork.
Every level of Ontario's courts
Theft matters can proceed through different levels of court depending on how they are charged and how the Crown elects to proceed. Sourena Sarbazevatan appears at all levels of Ontario's courts, which means representation does not change or need to be handed off depending on which court a particular matter ends up in.
Ten years of experience with these cases
With more than 10 years of experience in criminal defence, the review of disclosure, the assessment of evidence, and the identification of realistic defences or resolutions draws on years of familiarity with how theft matters are typically handled by Crown offices in the Toronto and GTA area, and with the Ontario Court of Justice process specifically.
Serving North York, Toronto, and the GTA
Gambriani Law PC is based in North York and serves clients throughout Toronto and the broader Greater Toronto Area, meaning representation is available close to where the charge arose and where the court proceedings will take place.
Farsi-language representation
For many people in the Persian-speaking community, discussing a criminal charge, especially one involving allegations of dishonesty, can be more comfortable and more precise in their first language. Being able to explain the charge, the evidence, and the options in Farsi as well as English removes a barrier that can otherwise make an already stressful situation harder to navigate. Legal concepts, evidentiary nuances, and the practical implications of different resolutions are not always easy to convey across a language gap, and being able to communicate directly in Farsi helps ensure nothing important gets lost in translation.
If you are dealing with a theft charge, whether it involves an allegation of shoplifting, a workplace dispute over missing property, or something else entirely, understanding your options is the first step, and getting a clear explanation of the case against you, in a language you are fully comfortable in, is part of taking that step seriously.