Theft under $5,000 is one of the most common charges in the criminal justice system. Despite being relatively minor compared to more serious offences, it can still result in significant consequences, including a criminal record, fines, and jail time.
Understanding what constitutes theft under $5,000 and how the court process works – from initial proceedings to resolution options – can help you navigate your case.
This article provides an overview of theft under $5,000 in Ontario and explains how the offence typically proceeds through the courts.
What is Theft Under $5,000 in Ontario?
Under section 334 (b) of the Criminal Code, any theft involving a value totalling less than $5,000 is classified as “theft under $5,000.”
Theft itself is defined in section 322 of the Criminal Code as taking or using property without having a legal right to do so, with the intent to dispossess the owner of their property, even if temporarily. Many people do not realize that theft occurs as soon as a person moves property with intent to steal.
This means that even if the theft is unsuccessful, a charge may still be laid.
- Take shoplifting, a common example of theft under $5,000. If you try to take an item from a store and do not intend to pay for it, you could be charged with theft even if you do not leave the store.
While the definition of theft is the same regardless of the dollar value involved, the consequences of a charge can be very different.
This is because theft is split into two categories in the Criminal Code: theft over $5,000 and theft under $5,000.
- When the total value of the property exceeds $5,000, theft is classified as an indictable offence, carrying a maximum punishment of up to ten years in prison.
- However, theft under $5,000 is a hybrid offence, meaning the prosecution, or the Crown, has discretion as to how the case will proceed – they may elect to proceed summarily or by indictment. If the Crown proceeds summarily, the maximum jail term a judge can give is six months. Proceeding by indictment is more serious and carries a maximum jail sentence of two years less a day.
The Crown’s election affects how a case is handled and how the defence proceeds. Not only is this because each category attracts different punishments, but because it impacts procedural rights, timelines, and trial processes. For instance, proceedings for summary offences must begin within twelve months of the offence date. If the Crown fails to elect, they are deemed to have made a summary election.
As such, if the Crown pursues a theft under $5,000 charge summarily or fails to make an election and lays charges after the twelve-month period, those charges are invalid.
Unlike theft over $5,000, where an accused may choose to have a trial by judge alone or by judge and jury, theft under $5,000 is an absolute jurisdiction offence, meaning it must be tried in Provincial Court – the Ontario Court of Justice.
Regardless of whether the Crown proceeds summarily or by indictment, the trial cannot be moved to a superior court.
Resolution and Sentencing Options
While the charge is the same whether the property in question is worth $20 or $4999.00, the dollar value, the context of the theft, and whether the Crown proceeds summarily or by indictment influence potential penalties.
Sometimes, a case is resolved without going to trial or sentencing.
Ontario courts offer diversion, which is a pre-trial program where an individual is given an opportunity to complete specific conditions such as community service or counselling. When successfully completed, the criminal charge may be withdrawn (permanently dropped) or stayed (put on hold for up to one year).
Diversion is generally offered to first-time, low-risk offenders and is found to be an appropriate resolution where the value of the property is low.
If the matter is not appropriate for diversion, one sentencing option available for theft under $5,000 is a suspended sentence. This occurs when an individual is convicted and an entry on their criminal record is made, but the passing of a sentence is suspended until certain probation conditions are completed.
Successful completion fulfills the sentence, but failure to meet the conditions may lead to serving jail time.
The most lenient sentencing outcomes following a finding of guilt, either by a guilty finding through trial or a guilty plea, are an absolute discharge and a conditional discharge. An absolute discharge does not impose any probation conditions and remains on a person’s criminal record for one year before being removed. A conditional discharge, however, requires an individual to comply with probation conditions for a specified period.
Conditions may include reporting to a probation officer, paying restitution or completing community service. Once successfully completed, the discharge is finalized and removed from an individual’s criminal record after three years. A conditional sentence is also an available penalty for theft under $5,000 in Ontario. It allows an individual to serve a custodial sentence in the community, rather than in jail, under conditions ranging from staying away from a particular store to house arrest.
Ontario courts may also impose fines, probation, jail time, or a combination of these penalties for theft under $5,000, all of which result in a permanent criminal record.
If the Crown proceeds summarily, the fine cannot be over $5,000. While there is no limit on the fine that may be imposed when the Crown proceeds by indictment, it must be proportionate to the offence and the individual’s ability to pay. As mentioned, the maximum punishment is six months in jail if the Crown proceeds summarily or 2 years less a day if they proceed by indictment.
The Court Process for Theft Under $5,000 in Ontario
Police Investigation
- Allegations of theft under $5,000 are investigated by the Ontario Provincial Police, who interview witnesses and gather evidence to establish if there are reasonable grounds to believe a crime occurred.
- If they decide to proceed, an officer will lay an information in court, formally starting the legal process.
- A Justice of the Peace will issue a summons, notifying you of your first appearance date.
- You will also receive a court date whether you were arrested and either released by police or held for a bail hearing.
- The police send evidence to the Crown prosecutor, who represents the state in court, negotiates resolutions with your lawyer, and presents the case at trial.
- At the first appearance, the court confirms your identity, formally advises you of the charge against you, and determines whether you have legal representation. It is important to appear on this date as failing to appear may result in a warrant for arrest and an additional criminal charge.
- The court will also ask if you have received a disclosure package, which is a collection of evidence related to the case. It might include video surveillance footage, police notes, witness statements, photographs, and The Crown Screen Form which outlines potential resolution options, including whether you qualify for diversion.
- If you have a lawyer, they will request disclosure from the Crown office.
- If you are self-represented, you can access disclosure by registering with the Digital Disclosure Hub or make an arrangement to pick up the package at the Crown office during the first court appearance. Reviewing disclosure allows you and your lawyer to understand the evidence, prepare a defence, and determine how you want to proceed with the case.
Disclosure
- The matter will proceed to a Crown pre-trial meeting. This occurs outside of the courtroom and involves your lawyer and the Crown prosecutor handling the case.
- You may also meet with the Crown lawyer if you are assisted by duty counsel.
- The purpose of the Crown pre-trial is to explore all resolution options and determine whether the case can be resolved without going to trial. Your lawyer will discuss the options with you, including whether to enter a guilty plea, participate in a diversion program if you are eligible, or proceed to trial.
Failure to Resolve
- If the case is not resolved during the Crown pre-trial meeting, the matter proceeds to a judicial pre-trial, which is a meeting that involves a judge, the Crown lawyer and your lawyer. You may attend this meeting if you are self-represented. The goal of the judicial pre-trial is to resolve the case or narrow the issues for trial.
- Resolution options will be discussed, as well as any procedural or evidentiary issues to ensure trial time is used efficiently.
- If the case is not resolved, the meeting will conclude by setting a date for a entering a guilty plea and sentencing, or for trial. Choosing to plead guilty means you give up your right to a trial.
- Once you plead guilty, you will be sentenced with one of the penalties discussed above. This may be jointly presented to the judge by your lawyer and the Crown if they have negotiated an agreed-upon sentence, or the Crown and your lawyer may each provide submissions to the judge regarding an appropriate sentence.
- The judge will consider these submissions, along with factors such as your criminal history and the value of the property stolen before issuing the final sentence. Generally, the sentence is given without delay.
Trial
- If the case proceeds to trial, it will occur in the Ontario Court of Justice without a jury. The purpose of the trial is to determine whether you are guilty or not guilty of committing theft under $5,000 based on the evidence presented.
- Trials for theft under $5,000 are relatively short, usually lasting less than a day or taking a few days if there are disputed facts and multiple witnesses.
- The Crown will present evidence against you and you, or your lawyer may present evidence of your own, challenge the admissibility of Crown evidence, and cross-examine Crown witnesses.
- The judge will review the evidence and decide whether you are guilty or not guilty.
- The case is dismissed if the judge finds you not guilty, and the matter will be scheduled for sentencing if you are found guilty.
- While the judge might take a short amount of time to make their decision, the court process, from the first appearance to sentencing, typically concludes within one year.
Defences to Theft Under $5,000 Charges
There are several possible defences to theft under $5,000 charges that may apply depending on the circumstances of the case. One possible defence is an honest but mistaken belief about the property or the situation. The Crown must prove that you intended to steal the property, and if you explain that you believed the property was yours or that you forgot you were in possession of it, you can negate the required intent.
For example, you might place an item in your bag while shopping and later leave the store genuinely believing the item had been paid for. If the court accepts that this belief was honestly held, it raises a reasonable doubt about whether you intended to steal. When reasonable doubt exists, you will be found not guilty.
Closely related to honest but mistaken belief is the defence of colour of right. This defence applies when you believe you have a legal right to the property. Imagine you are a store employee who takes merchandise thinking it was meant to be given to you as a sample or reward but your boss reports this as theft. You might argue that you had a colour of right – that you genuinely believed the property was yours to take.
Another defence to theft under $5,000 charges involves challenging the value of the property alleged to have been stolen. If the Crown cannot demonstrate the value of the property, their case is weakened. For example, if the Crown claims you stole an item worth $500 but you have evidence that it was worth $50, the penalties you might face would be reduced, and in some cases, the charge could be dismissed entirely.
Contacting a Lawyer
Being charged with theft under $5,000 in Ontario can have life changing consequences and Strategic Criminal Defence is here to help. The lawyers at Strategic Criminal Defence have experience representing people who have been charged with theft under $5,000 in Ontario, and they can help guide you through the legal process.
