There is no crime called “shoplifting” in the Criminal Code. If you were stopped leaving a store at Bramalea City Centre or Shoppers World, what you’ll see on your papers is theft under $5,000, under section 334(b). Many people who end up reading this are embarrassed and scared, and quite a few have never met a police officer before in this way. Some are parents of a teenager, some are newcomers worried about their status, and some honestly did not realize they’d left an item unscanned.
Even so, this is a real criminal charge, and it needs to be taken seriously. At the same time, many first-time cases have a path that doesn’t end in a conviction. Which path is open to you depends on the facts, the prosecutor, and what you do in the coming weeks.
Everything below is general information on Ontario practice for adults. It is not legal advice, and young people under 18 are dealt with under a separate law, the Youth Criminal Justice Act, so that a parent should get advice specific to that situation.
What the Crown Has to Prove
Theft is defined in section 322. Stripped of its old-fashioned wording, it means fraudulently and without colour of right taking something, or converting it to your use, with the intent to deprive the owner of it, even temporarily.
Three parts of the definition often come up in store cases:
The act is complete sooner than people expect. Under section 322(2), theft is committed when a person, with the intent to steal, moves the item or causes it to move. It doesn’t always matter that you hadn’t yet left the store. Security will often wait until you pass the doors, because that helps show intent, but the legal test doesn’t depend on it.
Intent is essential. Forgetting an item at the bottom of a cart, or missing a scan at a busy self-checkout, is not theft if there was truly no intent to steal. Still, the evidence matters. Video of concealing a product, removing a tag or scanning a cheaper item is what prosecutors point to as proof that the act wasn’t an accident.
Colour of right refers to an honest belief in a legal right to the item, like thinking something was already paid for by your spouse. It must be a genuine belief, and it can’t be just an excuse raised afterward.
A person doesn’t need to have succeeded in keeping the goods, and returning them doesn’t undo the offence, though it can matter a lot later in the process.
How a Typical Case Starts
Store loss prevention staff, or a security guard, may arrest you. Section 494 of the Criminal Code lets a property owner, or someone authorized by them, arrest a person found committing a criminal offence on or in relation to that property, and they must then hand the person over to police right away. Expect to be escorted to a back office, where they may ask you for ID and may ask you to sign a form.
Be careful in that room. Staff often ask for a written admission, and it’s natural to want to apologize and make it all go away. You don’t have to sign a confession, and anything you write can end up as evidence. It is better to be polite, give your name if asked, and say that you’d like to speak with a lawyer before explaining anything.
Peel Regional Police may then attend, and in most minor cases, you’d be released with an appearance notice or an undertaking listing a date for fingerprints and a date for court. Stores vary. Some call police every time, while others have their own thresholds.
You may also receive notice that you’re banned from the store, under Ontario’s Trespass to Property Act. Respect it. Going back, even to buy groceries or to return the item, could lead to a separate provincial charge. If it’s the only pharmacy in your area, that’s a problem to raise with your lawyer.
Letters Demanding Money
Weeks later, some people get a letter from the retailer or a company acting on its behalf, demanding payment of a fixed amount as a civil claim for the theft. This is separate from the criminal case. Paying won’t end the prosecution, and ignoring it does not make you guilty of anything further. Paying could also be taken as an admission in some contexts. Don’t respond until you’ve spoken with someone who can review the letter, and if you’re ever served with an actual Small Claims Court claim, deal with it promptly, as a claim has its own deadlines.
The Penalties on Paper
Section 334(b) makes theft under $5,000 a hybrid offence. The Crown can proceed in two ways:
- By indictment: up to two years in prison.
- On summary conviction: up to two years less a day in prison, a fine of up to $5,000, or both.
Those are maximums, and they aren’t typical outcomes for a first-time shoplifter. A provincial court judge has absolute jurisdiction over this charge under section 553, meaning the case will be tried at the Ontario Court of Justice in Brampton, at 7755 Hurontario Street. You won’t have a jury trial on it.
The value matters. Over $5,000, the offence is punishable by up to 10 years and is much more serious. Prosecutors also take a harder look where the theft was part of a pattern, was against an employer, or was organized. Federal sentencing law now treats organized retail theft as an aggravating factor, and a group of people working together to take large amounts of merchandise won’t be treated like someone who put a lipstick in a pocket.
Diversion: The Option Most People Ask About
Ontario has a diversion option called the Direct Accountability Program, available in most jurisdictions, and it’s described in the province’s directive on community justice programs. Theft under $5,000 is not on the list of excluded offences, so it may be considered if the prosecutor agrees.
Here’s what that typically involves:
- You must accept responsibility for what you did. This isn’t quite the same as pleading guilty, but you can’t deny the conduct.
- The Crown must be satisfied that there’s a reasonable prospect of conviction.
- You complete a plan, which may include counselling, community service, a charitable donation, or restitution. The plan is meant to address the reasons behind the offence.
- When the plan’s done, the prosecutor can withdraw or stay the charge.
Your prior record, your age, your remorse, and the nature of the offence are all considered, and acceptance into a program isn’t guaranteed. If you have reason to deny the allegation, such as a real self-checkout error, you shouldn’t assume diversion is your only choice. Taking responsibility for something you didn’t do has its own consequences.
Do not go to your first appearance and agree to something simply because it sounds fast. Get the disclosure, which may include store video and an inventory list, and find out what the program would require.
Other Possible Outcomes
Withdrawal or stay. Besides diversion, the Crown can withdraw a charge if there’s no reasonable prospect of conviction or if a prosecution isn’t in the public interest.
Peace bond. In some cases, a section 810 recognizance might be an available resolution, although this is more common in matters involving a particular person who fears harm.
Trial. You’re entitled to a trial. The question will usually be intent and identity, and video may be decisive one way or the other. The disclosure should show what the store actually recorded and how the value of the goods was determined.
Guilty plea with a discharge. Under section 730, a judge can grant an absolute or conditional discharge if that’s in your best interests and not contrary to the public interest. It’s a finding of guilt, but you aren’t convicted. A conditional discharge usually comes with probation. Under the Criminal Records Act, the record of an absolute discharge can’t be disclosed without approval after one year, and a conditional discharge after three years.
Conviction. This may lead to a fine, probation, and a criminal record, and it’s the outcome that most people are trying to avoid. In the case of repeat offences, jail becomes more likely.
Reasons a “Small” Charge Can Have Big Effects
The dollar value may be small, yet the consequences might not be.
Immigration. For someone on a work or study permit, a conviction for theft can raise inadmissibility issues. Even a hybrid offence is treated as indictable for these purposes, whichever way the Crown proceeded. A permanent resident’s position differs, but there can still be consequences for citizenship applications. Any plea, and even the wording of a discharge, should be reviewed with this in mind. Tell your lawyer about your immigration status first, and read more on temporary residence issues if you’re on a permit.
Employment. Retail, banking, security, and any job handling money or inventory may screen for offences involving dishonesty. A professional licence or a bonding requirement might be at risk.
Travel. U.S. border officers may treat theft as a crime involving moral turpitude. A Canadian result doesn’t necessarily decide how another country will view your admission to it.
Police records. Even after a withdrawal, fingerprints and a local police file may still exist. Ask your lawyer about whether you can request destruction once the case ends.
Practical Steps for This Week
Start with what’s in your control.
- Keep your paperwork, and mark the fingerprint and court dates in your phone. Missing either one is a separate offence.
- Write down what happened for your lawyer only, including how you paid, what you had with you, and where you were in the store.
- Find your receipts and bank or card records from the day, particularly if you think a scanning error is involved.
- Don’t contact store employees or go back to the store.
- If there’s an underlying reason, like a medical condition, a mental health issue, or a financial crisis, think about what help you could reach out for. It can be useful for your plan and could also help you personally.
Being charged with something like this can feel shameful, and many people want to deal with it quietly and quickly. That’s understandable, but a fast decision can leave a lasting result. Our shoplifting charges page has more about how these matters are handled, and our Brampton office can review your paperwork with you, explain the options, and help you pick a course that suits your circumstances.