Theft & Shoplifting are covered under  s.322 and  s.334 of the Criminal Code of Canada

There are two main categories of theft in Canada.

  1. Theft under $5000
    If the amount of the theft is over $5000.00 and the Crown must proceed by indictment and the maximum penalty is 10 years and/or a fine.
  2. Theft over $5000
    If the amount of the theft is over $5000.00 and the Crown must proceed by indictment and the maximum penalty is 10 years and/or a fine.
    If the Crown proceeds by summary conviction the maximum sentence is 6 months and/or a fine of not more than $5,000.00


Shoplifting is the most common criminal theft charge in Canada.  It is encompassed under the “theft under $5000.00” provisions of the Criminal Code.

Although in most cases the theft is minor in nature, a conviction or even a finding of guilt can have a significant impact on an individual’s future employment opportunities and possible travel plans.

There are a number of defences to this charge but most commonly we see the defence of “I didn’t intend to take it, I just forgot”.  In fact almost every person can at some time in their life identify with that occurrence; mistakes do happen.

Shoplifting cases where the  “theft under $5000”  is minimal the Crown will often offer up diversion.  The diversion program will require either community service or a charitable donation in exchange for the withdrawal of the charge.  Unfortunately this program also requires an acknowledgement of guilt.  You will not get a criminal record, but your file will contain a notation that diversion was granted.

The lawyers at Daley, Byers have been successful negotiating diversion on numerous occasions, in some cases where the theft has been over $1000.  More importantly, we have defended numerous clients where we have been able to negotiate an informal diversion, where community service or a donation is made without any acknowledgement of responsibility.  The criminal charge is simply withdrawn.

Theft from an Employer

Any theft involving a breach of trust is very serious.  The courts view a theft by a person in a position of trust as extremely aggravating.   At Daley, Byers we have defended cashiers, bookkeepers, accountants, sales people and treasurers of charitable organizations who have found themselves facing theft charges resulting from their position.  In some cases we have been retained prior to charges being laid and through negotiations have avoided criminal charges altogether.  In other cases where clients have retained us after being charged we have successfully negotiated the withdrawal of all charges. In many cases it is very difficult for the Crown to prove a theft that has taken place over many months or years.  The necessary records must be available and reveal the unlawful conduct.

Penalty after conviction in cases involving breach of trust

There are a number of factors that will influence sentence in these cases;

  1. Circumstances of the accused
  2. Criminal record of the accused
  3. The length of time that the theft has been ongoing
  4. The amount that was stolen
  5. The nature of the position of trust
  6. Was there a trial or a guilty plea – is the accused remorseful?
  7. Has restitution been made?

Jail terms have traditionally been the norm for breach of trust theft involving substantial sums of money.  However, where restitution has been made, real jail can sometimes be avoided.  House arrest and/or probation are options.  In addition if there is some type of explanation for the conduct (e.g. gambling or drug addiction) the Courts can be somewhat sympathetic.

The Criminal Code allows for a wide range of penalties upon a finding of guilt or conviction.

  1. Absolute discharge
  2. Conditional discharge with probation
  3. Fine
  4. Jail

In all cases we make it our job to get the best result possible – withdrawal of the charge – acquittal – lightest sentence available in the circumstances

Possible Defences to the Charge of Theft

  1. It was an accident
  2. It was a gift, or I thought it was a gift
  3. I thought it was abandoned
  4. It wasn’t me – I did not do it (this defence often arises in corporations when the accused does not have the sole ability to take the funds and the funds cannot be traced to the accused)

There must be intent to deprive temporarily or absolutely. The Crown must also prove a loss of property.

We recently defended an accused person who was seen to load 10 boxes into a car from a distance.  However, the Crown could not prove that there was anything in the boxes and therefore they could not prove that anything was stolen (except perhaps empty boxes).  The charges were dismissed.

It is important when facing a theft charge that you consult a lawyer immediately.  Sometimes it may be helpful to provide a statement, but in most instances it is important to exercise your right to remain silent.

You can contact Daley, Byers 24/7. Call or email Daley, Byers now.