Theft is one of the most commonly charged offences in Ontario, ranging from taking a low-value item to large-scale fraud-adjacent schemes. How a theft charge is classified and prosecuted depends heavily on the value of what was taken. This guide explains how theft is defined under section 322 of the Criminal Code, the distinction between theft under and over $5,000, potential penalties, and what generally happens after this kind of charge in Ontario. It is general legal information, not legal advice about a specific case.
What Is Theft?
Section 322 of the Criminal Code defines theft as taking or converting, fraudulently and without colour of right, anything, whether animate or inanimate, with the intent to deprive the owner, or a person with a special property or interest in it, of the item, either temporarily or permanently. This broad definition covers everything from taking merchandise from a store, which is discussed in more detail on our shoplifting page, to taking money or property that was entrusted to someone for a specific purpose and used differently, to taking a vehicle, tools, or equipment without the owner's permission. The item taken does not need to have obvious resale value or be physical currency; the definition extends to anything capable of being the subject of theft under this general property-offence framework.
Why the $5,000 Threshold Matters
The Criminal Code draws an important line at $5,000 in value. Theft of property valued at $5,000 or less is charged under section 334(b), while theft of property valued over $5,000 is charged under section 334(a). This distinction affects both the classification of the offence and the maximum penalty that applies. The value used is generally the fair market value of the property at the time of the theft, which can itself become a contested issue in some cases.
Classification and Penalties
Theft under $5,000 is a hybrid offence, while theft over $5,000 is a straight indictable offence with no summary conviction option.
Theft (Section 334) at a Glance
- Classification – $5,000 or under
- Hybrid offence (Crown elects summary conviction or indictment)
- Maximum penalty – $5,000 or under
- Up to 5 years on indictment; up to 2 years less a day and/or a $5,000 fine on summary conviction
- Classification – over $5,000
- Indictable offence only
- Maximum penalty – over $5,000
- Up to 10 years imprisonment
- Mandatory minimum sentence
- None for ordinary theft; see motor vehicle theft below for an exception
These figures reflect the Criminal Code as of this page's last update. Actual sentences depend heavily on the value taken, the method used, whether the person was in a position of trust, and their record. A criminal lawyer can confirm the current state of the law for a specific case.
Motor Vehicle Theft
In response to rising rates of vehicle theft in parts of Ontario, Parliament created a specific provision, section 333.1 of the Criminal Code, for theft involving a motor vehicle. Like general theft, it is a hybrid offence with a maximum penalty of up to 10 years on indictment. Unlike general theft, a mandatory minimum sentence of 6 months applies where the person is convicted of a third or subsequent offence of motor vehicle theft, whether earlier convictions were prosecuted by indictment or summary conviction. This reflects a specific legislative response to organized and repeat vehicle theft, distinct from the general theft provisions.
How This Relates to Other Property Charges
Theft frequently overlaps with, or is charged alongside, other property offences, depending on the facts:
- Shoplifting is theft that occurs in a retail setting and is prosecuted under the same theft provisions, though it is often treated somewhat differently in practice given the typically lower values involved.
- Fraud is a distinct offence involving deceit or dishonesty to obtain property or a financial benefit, rather than simply taking something without authorization.
- Possession of stolen property applies to someone who knowingly possesses property that was obtained through a crime, even if they did not personally steal it.
- Where theft occurs alongside violence or the threat of violence, the applicable charge becomes robbery, which carries much higher maximum penalties.
- Where property is taken from a building through unlawful entry, the charge may instead, or also, be break and enter.
A theft charge, even for a relatively low-value item, still results in a criminal record if a person is convicted, which can affect employment and travel. Getting legal advice early, even for what seems like a minor charge, can matter significantly.
Theft charges can also arise in workplace settings, such as an employee accused of taking cash, merchandise, or company property. These cases can involve additional complexities, including internal investigations conducted before police are ever involved, and often benefit from early legal advice before a person makes any statement to an employer or investigator.
Possible Defences
Theft cases often turn on whether the Crown can prove the required fraudulent intent, since taking something under a genuine, honest mistake about ownership or entitlement, sometimes described as a claim of right, can be a defence in appropriate circumstances. Other issues that commonly arise include whether the person can be identified as the one responsible, particularly in retail settings relying on surveillance footage, whether the value of the property was accurately assessed, and whether any statement made to store security or police was properly obtained. A criminal lawyer should review the specific disclosure before advising on which defences may apply.
What Happens After This Charge
Many theft charges, particularly at the lower end of the value scale and for a person with no record, are resolved without a contested bail hearing and without significant jail exposure, and many people charged with a lower-value, first-time theft are released directly by police with a future court date rather than being held for a hearing. See our page on what happens after an arrest for the general process. From there, the case follows the standard path through Ontario's courts, including a first appearance, disclosure, and either a resolution or a trial. Outcomes for lower-value, first-time theft charges can include a discharge, diversion where available, or a fine, while higher-value or repeat offences carry a greater likelihood of a custodial sentence. See our sentencing overview and our criminal records overview for more.
Where a theft is valued near the $5,000 threshold, how the value is established can have a direct effect on the maximum penalty a person faces, since it determines whether the charge proceeds under the lower or higher maximum. This can make expert or appraisal evidence about value more important in cases involving items such as jewellery, electronics, or vehicles, where market value may not be immediately obvious from a receipt or invoice.
Diversion or extrajudicial-style resolutions, where available, can allow a first-time offender charged with a lower-value theft to avoid a formal conviction by completing conditions such as community service, restitution to the store or owner, or educational programming. Availability and eligibility for these programs vary by jurisdiction and by the Crown's assessment of the case, and they are not guaranteed. A criminal lawyer can advise on whether this kind of resolution is realistic for a specific charge.
Frequently Asked Questions
Is theft under $5,000 a minor charge?
It is treated less seriously than theft over $5,000, but it is still a criminal charge that can result in a criminal record if a person is convicted. Outcomes vary depending on the value involved, the circumstances, and the person's record.
How is the value of stolen property determined?
Generally, courts look at the fair market value of the property at the time of the theft. In some cases, the value of the property can be a contested issue at trial.
What is a "claim of right" defence?
A claim of right applies where a person honestly, even if mistakenly, believed they had a legal entitlement to the property in question. If established, it can negate the fraudulent intent required for a theft conviction.
Is stealing a car treated differently than other theft?
Motor vehicle theft is prosecuted under a specific Criminal Code provision and carries a mandatory minimum sentence of 6 months for a third or subsequent offence, which does not apply to general theft charges.
Can a first-time theft charge be resolved without a criminal record?
In some cases, yes, particularly through a discharge or a diversion program where one is available and appropriate for the circumstances. Whether this is realistic depends on the specific facts and the Crown's position.