A bookkeeper who moved “borrowed” funds through a company account over two years. A warehouse worker accused of walking pallets out to a friend’s van. A contractor who took a deposit and spent it elsewhere. A driver whose trailer of electronics never arrived. These fact patterns seem to have little in common, yet each could be charged as theft over $5,000. Many of the people involved have no record and have never been in a courtroom.
The line at $5,000 draws a lot of attention, but in practice the harder questions are often whether what happened was theft at all, and how a court will view it if it was. A dispute that looks to one person like a criminal theft may look to another like a contract problem, a partnership fight or a misunderstanding about wages.
This article gives general information about the offence in Ontario. It is not legal advice, and you should not use it to decide how to respond to police or an employer without speaking to a lawyer.
What Theft Means in the Criminal Code
Section 322 says that a person commits theft by fraudulently and without colour of right taking or converting something to their own use or someone else’s, with intent to deprive the owner of it, temporarily or absolutely, or with one of several related intentions.
Those words carry weight:
- Fraudulently means the taking was intentional and dishonest, with knowledge that it was not authorized. An honest mistake, such as picking up the wrong equipment, does not fit.
- Without colour of right means without an honest belief in a legal right to the property. The belief does not have to be reasonable, though an unreasonable belief is harder to accept as sincere. Someone who took equipment they honestly believed their old employer owed them may have an argument.
- Temporarily or absolutely means that “I was going to put it back” is not a complete answer. Intending to deprive for a time can be enough, and intent to repay may matter more at sentencing.
- Taking or converting covers both removing a thing and misusing something you already lawfully held. That second idea is how employees and agents usually get charged.
Section 330 also covers a person who has received property under a duty to account for it and fails to do so properly, and section 332 addresses someone holding property under a direction on how to use it, such as money to be applied to a certain purpose.
What Changes at $5,000
Section 334 sets the two tiers. Where the value of what was stolen exceeds $5,000, or the item is a testamentary instrument such as a will, the offence is hybrid: an indictable offence with a maximum of 10 years in prison, or a summary conviction offence if the Crown chooses that route. At $5,000 or less, the maximum on indictment is two years.
Because it is a hybrid offence, one of the first questions is how the Crown will elect. Summary election limits the maximum sentence to the general summary range (up to two years less a day) and keeps the matter in the Ontario Court of Justice. If the Crown proceeds by indictment, you can usually choose between trial in the Ontario Court of Justice and trial in the Superior Court of Justice, with or without a jury.
Many people are surprised to learn that you do not get a preliminary inquiry on this charge. Because the maximum is 10 years, it falls below the 14-year threshold for that step.
How Value Gets Proved and Disputed
The Crown has to prove that the value of what was stolen exceeded $5,000. Valuation may sound simple, but disputes arise:
- Whose number? Retail price, wholesale cost, replacement cost and depreciated value can all differ. A used excavator attachment or a three-year-old laptop may be worth much less than its original invoice.
- Multiple small takings. Lots of small takings over time may be charged as one continuing course of conduct or as separate counts. How they are framed can affect whether the total crosses the line.
- A shortfall figure. In employee cases, a forensic accountant or a company manager may estimate a total. Accounting losses can also have innocent explanations, such as entry errors, shrinkage, poor recordkeeping or other employees with access.
If the Crown cannot prove the value but can prove the theft, the court can convict of the lesser offence of theft under $5,000.
When a Civil Dispute Is Charged as Crime
This is one of the first questions to ask in a commercial setting. Failing to finish a job or repay a debt is generally a civil issue, and a broken promise alone is not theft. A contractor in Brampton who took a deposit, bought materials, and then went out of business may be in breach of contract without having stolen anything. The picture changes if the evidence suggests dishonest use of money that was entrusted for a specified purpose.
Because of this, the same set of facts sometimes supports both a police report and a civil claim. Complainants might also be advised that a demand letter or a Small Claims Court action better fits the problem. If a business is suing you and police are also interested, what you say in the civil case can create a problem in the criminal one. You should have one lawyer looking at both tracks together, or two who are talking to each other.
Fraud under section 380 is another charge that can be laid on similar facts. It involves deceit, falsehood or other fraudulent means resulting in a deprivation, and it can carry a much higher maximum at the higher tier. Theft and fraud are often charged together in workplace cases.
Workplace Theft and Breach of Trust
Employee theft is treated seriously, partly because of the betrayal involved. When a person abuses a position of trust or authority in relation to the victim, section 718.2(a)(iii) requires the court to treat this as an aggravating factor at sentencing. A long-serving bookkeeper may have a spotless record and a lot of goodwill, yet that same long service can be what made the theft possible and may count against them.
Usually, an internal investigation comes first. An employer may hold a meeting, demand an explanation, ask you to sign a statement, or propose a repayment plan. Be very careful. Some practical cautions:
- Do not sign a confession or repayment agreement without advice. It can be used against you later.
- Do not contact the business’s clients or staff about it, or take records. If you think you need documents to defend yourself, ask a lawyer how to get them properly.
- Do not repay money in a way that looks like hush money. Making or accepting payment in exchange for not reporting a crime can create its own legal problems, for both sides. Restitution can be a very good step, but it should be handled through counsel.
- Know your employment rights too. Termination for alleged theft has employment law consequences that may need separate advice.
Cargo, Vehicles and Stolen Goods
Given Brampton’s concentration of warehouses and transport yards along the 410 and 407 corridors, some allegations involve cargo: fictitious pick-ups, missing trailers, or goods diverted between Montreal and the GTA. The legal questions here are about who knew what. A driver who hauled a load for someone he had reason to trust may not have had guilty knowledge. Dispatchers, owner-operators and brokers can find themselves implicated by paperwork they barely looked at.
Possession of property obtained by crime under section 354 is often laid alongside or in place of theft, and it uses the same $5,000 threshold under section 355. The Crown must prove you knew the goods came from crime, though wilful blindness can stand in for actual knowledge: if you became suspicious and deliberately avoided asking questions, that can be treated as knowing.
Vehicles have their own specific offence. Under section 333.1, stealing a motor vehicle carries up to 10 years on indictment, with a mandatory minimum of six months for a third or later offence, and it can also be prosecuted summarily. If violence is used or threatened, or the theft is for a criminal organization, the maximum is 14 years. In those two more serious situations, a reverse onus applies at bail. So a stolen pickup truck may not be charged as “theft over” at all. Your charge sheet will say which section applies.
Possible Defences
Every case differs, and no list covers them all, but these are common starting points:
- No dishonesty. You believed you were authorized, or the owner had consented, or it was an honest mistake.
- Colour of right. You honestly believed you had a right to the property, including a right to keep it as payment owed to you, though that belief can be difficult to establish.
- Identity or access. In a shared workplace or with a shared login, who actually made the entry? A user ID does not always reveal who was at the keyboard.
- Value. The total may be less than $5,000, which changes the offence.
- Unreliable accounting. Is the audit complete, independent and able to be tested? Has anything been left out?
- Charter issues. Was your phone or computer searched lawfully? Was a police interview conducted after you had a real chance to speak to counsel?
Sentencing and the Role of Restitution
Sentencing for theft over depends on the amount, how long it went on, the planning involved, the relationship to the victim, your background and whether you repaid anything. A court will often consider whether the case calls for denunciation and deterrence.
The range of available outcomes is wide:
- Discharge. Theft over has a 10-year maximum and no minimum, so a discharge under section 730 is legally possible. It may be realistic at the lower end for someone with no record, especially with restitution and strong character evidence. It is not automatic, and courts weigh the public interest.
- Suspended sentence and probation, often with community service.
- Conditional sentence. A sentence of under two years may be served in the community if the conditions in section 742.1 are met.
- Jail. For a large breach of trust, a jail sentence is a real risk, even with a first-time offender.
Under section 738, a court may order restitution for losses that can be readily ascertained. An unpaid order can be enforced like a civil judgment. Having funds ready before sentencing can make a major difference to what a court thinks is appropriate. This can be a reason to start planning early, for those who are able to. A restitution order also does not necessarily stop a civil lawsuit.
Some consequences are less obvious at first. Non-citizens should raise immigration at the first meeting, since a 10-year maximum may trigger serious criminality provisions, and a hybrid offence is generally deemed indictable for that purpose. Regulated professionals, like accountants, real estate agents and nurses, may have reporting duties. Bonding and security clearance can be affected, including for FAST card holders or other cross-border drivers. If a company is involved, directors may want to consider their own exposure and their insurance position.
If you run a business and suspect theft, keep your evidence intact, restrict access and get legal advice before you confront the employee. Our business litigation page deals with the civil side.
First Steps if You Have Been Accused
Do not make a statement, to police or your employer, before getting legal advice. Preserve your records and devices as they are. Put together a timeline and a list of everyone who had access, and share these only with your lawyer. Note any time limits in your release documents.
Our criminal law page gives an overview of the charges we handle in Peel, and you can contact the office to book a consultation. A careful look at the accounting and at what you were actually authorized to do is often where the real conversation begins, and it may change how the Crown sees the file. No one can promise that it will.