About being charged with theft under $5000 in Ontario, Canada

Those who are caught shoplifting or stealing from their workplace will normally be charged with theft under $5000.

Everyone charged with the offence of theft under $5000 will receive both a fingerprinting date and a court date usually written on an Appearance Notice (Form 9) or Undertaking (Form 10). If you have received either one of these papers from the police you have been criminally charged and should hire a lawyer immediately to begin working on your case.

Theft under $5000 is a Crown elect hybrid offence the punishment of which is codified in Section 334(b) of the Criminal Code which reads:

Punishment for theft

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 not a summary offence because the Crown Attorney has the option to proceed by indictment under s. 334(b)(i). If the Crown chooses to proceed by summary conviction, the maximum punishment is 6 months in jail and a criminal record.

It is therefore a Crown elect hybrid indictable offence. Since it is a hybrid offence, the accused can lawfully be required to provide fingerprints and their mugshot to the police. There is no statute of limitations for theft under $5000 meaning charges can be laid anytime after the offence occurred (even years or decades later).

What happens at a Zoom remote/virtual court appearance date for theft under $5000 charges?

Usually a new court date will be set to allow time for the accused’s lawyer to receive the disclosure, review it, and conduct a Crown pre-trial (and ask the Crown to consider dropping the charges). If the accused has not yet hired a lawyer, a new date will be set to allow them time to do so. Criminal cases are time sensitive matters and it is in their best interest to hire a lawyer as soon as possible to start working on their case.

Almost all criminal court appearance dates are now conducted virtually in Ontario, including for those charged with theft under $5000.

The Form 9 or 10 will list the physical address of the courthouse but the accused will also be provided with instructions as to how to login to Zoom court remotely. While this is extremely convenient compared to actually having to attend in person at the courthouse, the case will still be heard and decided in the same way it would have prior to the remote court system being implemented in 2020.

An accused who is charged with theft under $5000 is facing potentially severe irreversible consequences including:

1. jail,
2. a criminal record,
3. denial of immigration/IRCC applications,
4. deportation, and
5. being banned from travelling to the USA

The court may be conducted virtually, but the potential consequences are not. There is no such thing as virtual jail or a virtual deportation. Don’t make the mistake of letting things go or not taking the charges against you seriously.

If you received an Appearance Notice or Undertaking with theft under $5000 charges your information will be shared via CPIC with all police forces in Canada, IRCC, and U.S. Customs and Border Protection.

While sometimes people who work for the government try to downplay the seriousness of being charged with theft under $5000, those who are charged should know that their name, date of birth, fingerprints, pictures, etc. are being stored and shared among all all law enforcement agencies including IRCC and U.S. Customs (CBP).

For immigrants who have outstanding IRCC applications it is imperative that the result of the case does not cause problems with their immigration status. Further, just being charged with theft under $5000 can cause a person to be denied entry to the USA as U.S. immigration law (INA) states that someone can be denied entry even if they are ultimately not convicted of a moral turpitude offence. Theft under $5000 is considered a moral turpitude offence in all circumstances.

While it may be easy for people who work for the government to say to you it is “no big deal”, in reality it is really only no big deal for them. They are not the ones whose information is being taken and shared. They are not the ones who face the potential of getting a criminal record and having the charges show up on employer background checks, IRCC applications, and at the U.S. border. It is no big deal to them because unlike you they have nothing to lose.

I offered to pay for all the items but the police still charged me?

A lot of theft under $5000 charges relate to shoplifting incidents. Usually the accused is stopped by security (loss prevention) shortly after leaving the store in the parking lot or mall hallway. They will normally be asked to go back inside to the security office where they will be identified, searched, and detained while they wait for the police to arrive. Once the police arrive the store security will provide them with all of the evidence gathered. The police will take over the investigation and decide whether or not to charge the accused.

How can someone avoid being charged with theft under $5000/shoplifting if they get caught?

As of 2023, there is an element of luck involved in whether someone will actually be charged with theft under $5000 or not in shoplifting cases. Depending on the location, amount of items involved, the police history of the accused, along with several other factors the responding officer will use their discretion whether to lay charges or not. There is a bit of luck of the draw in some locations as officers across Ontario respond to shoplifting calls differently even within the same police forces.

While you can’t control which police officer will show up and whether they will decide to press charges or not, it is always in the accused’s best interest upon arrest or detention to:

1. be polite, respectful, and not have an attitude; and,


2. not raise their voice or speak aggressively to the security or the police.

When you get caught shoplifting and the police arrive you are hoping they will do you a favour and not charge you. Acting irate, difficult, annoying, disagreeable, argumentative etc. will not be helpful to your cause.

Taking a “know it all” or un-cooperative approach/attitude with the police will, if anything, increase the likelihood that you will be charged. Your lack of cooperation will also be noted in the file and considered an aggravating factor by the Crown Attorney when the case goes to court.

The police are not intimidated by aggressive people. If anything, they will be more motivated to criminally charge them.

The police won't go out of their way to help or accommodate rude, aggressive people. They are not the ones taking the potential losses when charges are laid. You are the one taking the loss. In some cases they may both choose to press charges and take the accused into custody and hold them for a bail hearing the next day.

Acting aggressively and disrespectful with the police may be the difference between you going home with a warning, or you going to jail and having serious criminal theft charges hanging over your head for months as the case goes through court.

Those who are charged will receive the Appearance Notice or Undertaking document. Others may be let off with a warning/caution and may or may not also receive a $65 trespassing fine which is not a criminal charge. Please note it is also possible to receive both the $65 trespassing fine and also be charged criminally. Anyone who has to submit fingerprints has been criminally charged whether they have been fined or not.

The store got all the items back (property was recovered). Will I be charged?

First of all, if you have an Appearance Notice or Undertaking document you have been charged and your case is going to court (the decision has already been made). In most cases where the accused was stopped by security and detained prior to police arrival the store will have recovered all of the stolen merchandise. Having the property recovered and available for resale is quite common and won’t change the fact that charges have been laid.

In cases where the accused refuses to go back inside the store and be held for the police they may be in possession of stolen property at the time they are charged. The accused may face additional charges for possession of property obtained by crime and escaping lawful custody. Restitution may be sought in such cases when the matter goes to court.

I received a Form 9 Appearance Notice or Form 10 Undertaking for theft under $5000. Can I just go back to the store and talk to the manager or owner to ask that the charges be dropped?

It is already too late to plead with the store to drop the charges because they are no longer in control of the case. Once the police issue the accused a Form 9 or 10 the only decision maker on the case will be the Crown Attorney who is eventually assigned to the file at the courthouse. The only person you should be talking to about your case is a criminal lawyer working on your behalf. Any statements you make to the store owner, the police, or anyone other than your lawyer can be used against you as evidence.

All accused in Canada (including non-citizen immigrants) have a right to remain silent and should respectfully exercise this right with the police. It is in your best interest to consult with a criminal lawyer immediately as all conversations with your lawyer are subject to solicitor-client privilege meaning they can never be used against you.

I have been given an Appearance Notice (Form 9) of Undertaking (Form 10) for theft under $5000. How can I get the charges dropped?

If the police have given you this paperwork you should hire a lawyer immediately to review and discuss your case with the Crown Attorney to see if they will drop the charges. Each courthouse in Ontario operates differently with regard to processing theft charges. It is essential that your lawyer have experience dealing with similar people and situations to know what steps to take and how to avoid potential problems.

When you are charged with theft under $5000 it is not just the outcome of the case and a criminal record that you need to be worried about. Your lawyer should also have experience dealing with information management, file destruction, and mitigating/avoiding potential problems with the charges showing up on employment background checks, IRCC immigration applications, and problems with future U.S. travel.

The charges can still show up and cause problems later even if they are ultimately dropped/withdrawn. It is important that upfront steps be taken to reduce these risks.

There are several proactive steps that an accused and their lawyer can take to minimize problems with background checks, travelling, and immigration.

Some things that can be done to reduce the likelihood of problems are time sensitive and therefore it is imperative that the accused consult with a lawyer who has experience and knowledge dealing with these issues as soon as possible.

Our lawyer has handled over 2000 shoplifting cases and is able to assist with all elements of being charged with theft under $5000. Approximately half of our clients are in the immigration system and we are well versed with how to proactively mitigate and avoid potential problems with background checks, IRCC, U.S. Customs, etc.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with all forms of theft and fraud related offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on theft and fraud related charges protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a theft or fraud related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

---