Theft Under $5,000 and Shoplifting Charges in Canada
Theft under $5,000 is a hybrid offence under section 334(b) of the Criminal Code. When the Crown proceeds summarily, which is common for shoplifting and other minor cases, the general maximum is two years less a day and a $5,000 fine. When the Crown proceeds by indictment, the maximum is two years in prison. Theft over $5,000 is far more serious, with a maximum of 10 years. Many first-time shoplifting charges are resolved without a conviction through diversion programs, such as Ontario's Direct Accountability Program, or through a discharge. Separately, retailers sometimes send civil demand letters asking for money, which are not part of the criminal case.
This article is part of the guide to criminal law in Canada.
The short version
- Shoplifting is usually charged as theft under $5,000.
- It is a hybrid offence, and most cases proceed summarily.
- First-time offenders are often eligible for diversion, which leads to the charge being withdrawn.
- A discharge is another possible outcome that avoids a conviction.
- A conviction creates a criminal record that can affect jobs, immigration and travel.
- A store's civil demand letter is separate from the criminal case.
- Get legal advice before agreeing to anything, including diversion.
What Counts as Theft
Under section 322 of the Criminal Code, theft means fraudulently and without colour of right taking or converting anything with intent to deprive the owner of it, temporarily or absolutely. "Colour of right" means an honest belief that one had a legal right to the property. Theft is complete when the item is moved or the person starts to deal with it, so leaving a store is not always required.
Related Charges
| Charge | Code section | Maximum penalty (indictment) |
|---|---|---|
| Theft over $5,000 | 334(a) | 10 years |
| Theft under $5,000 | 334(b) | 2 years |
| Possession of property obtained by crime, under $5,000 | 354, 355(b) | 2 years |
| Fraud under $5,000 | 380(1)(b) | 2 years |
| Robbery (theft with violence or threats) | 343, 344 | Life |
| Break and enter | 348 | Life for a dwelling house, 10 years otherwise |
When the Crown proceeds summarily on a hybrid charge, the general maximum is two years less a day in jail and a $5,000 fine. Theft under $5,000 is tried in provincial court.
Diversion Programs
Diversion lets an accused person take responsibility outside the court process, usually by completing a program, community service, a donation or restitution. When it is completed, the Crown withdraws the charge, so there is no conviction.
In Ontario, the Direct Accountability Program, often delivered through community agencies such as the John Howard Society, is available for some minor, non-violent offences. Eligible participants complete sanctions such as a charitable donation, community service or a program, and the charge is withdrawn on completion. Other provinces have similar adult alternative measures programs under section 717 of the Criminal Code.
Eligibility usually depends on:
- the seriousness of the offence and the value involved
- whether the accused has a prior record or previous diversion
- whether the accused accepts responsibility
- the Crown's approval
Diversion is a voluntary program, and the accused does not have to accept it. A lawyer or duty counsel can explain whether it is offered and what it involves.
Possible Outcomes
| Outcome | Criminal conviction? | Notes |
|---|---|---|
| Charge withdrawn | No | Weak evidence or public interest factors |
| Diversion completed | No | The charge is withdrawn after the program is completed |
| Absolute discharge | No | Found guilty, but no conviction; recorded for 1 year |
| Conditional discharge | No | Found guilty, with probation; recorded for 3 years after probation begins |
| Suspended sentence, fine or probation | Yes | Creates a criminal record |
| Jail | Yes | Uncommon for first-time, low-value shoplifting; more likely with prior records |
See diversion, withdrawn charges and discharges.
Organized and Repeat Retail Theft
The Bail and Sentencing Reform Act, in force on July 15, 2026, added organized retail theft as an aggravating factor on sentencing. It also created new reverse onus bail situations for some violent or organized property crimes, such as violent or organized auto theft and home break-ins. Repeat or organized theft is treated much more seriously than a single, first-time shoplifting incident.
Civil Demand Letters From Retailers
After a shoplifting incident, some retailers or their law firms send a "civil demand" or "civil recovery" letter asking for a payment, often a few hundred dollars. This is separate from the criminal case:
- paying it does not end the criminal charge
- not paying it does not create a criminal record
- a retailer can only recover money through a civil lawsuit if it can prove its losses
Anyone who receives a letter should get legal advice before paying or responding, and should not discuss the facts of the incident in writing.
Practical Steps After a Theft Charge
- Read the court documents and note the first court date and any fingerprint date.
- Do not contact the store or witnesses if conditions forbid it.
- Speak with duty counsel, legal aid or a criminal lawyer about diversion before the first appearance. See legal aid in Canada.
- Tell your lawyer about your immigration status, if you are not a Canadian citizen.
- Ask about fingerprint and record destruction once the case ends without a conviction.
Frequently Asked Questions
Will I get a criminal record for shoplifting?
Not necessarily. Diversion and withdrawal do not create a conviction, and a discharge is not a conviction either. A guilty plea leading to a fine, probation or jail does create a criminal record.
Do I need a lawyer for a shoplifting charge?
Many people resolve minor shoplifting charges with help from duty counsel. A lawyer can still be valuable, especially for anyone with a prior record, immigration concerns, or a job that requires a clean record check.
Will police records of my charge be destroyed automatically?
Not always. Fingerprints, photographs and records of a withdrawn charge are often kept unless the person applies to have them destroyed. Each police service has its own process.
Does theft affect immigration?
It can. Theft is generally considered a crime involving moral turpitude for U.S. immigration purposes, which can affect entry to the United States, and convictions can affect Canadian immigration status. See criminal records and travelling to the U.S..
Charged with theft or shoplifting? Search LawyerDirectoryCanada.ca for criminal lawyers by province and city.
Sources
- Criminal Code, section 322: theft, Justice Laws Website
- Criminal Code, section 334: punishment for theft, Justice Laws Website
- Criminal Code, section 717: alternative measures, Justice Laws Website
- Direct Accountability Program, John Howard Society of Ontario
- Bail and Sentencing Reform Act (Bill C-14), Department of Justice Canada
- Criminal Records Act, section 6.1: discharges, Justice Laws Website
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