Will a shoplifting charge give me a criminal record?

Only a conviction creates a criminal record. If the charge is withdrawn after diversion, or if the court grants an absolute or conditional discharge under section 730, there is no conviction and therefore no criminal record, although a discharge does leave a record of the finding of guilt for a limited period.

What is diversion and who qualifies?

Diversion, sometimes called direct accountability, is a Crown-run program in which a low-value theft charge is withdrawn after the accused completes conditions such as a charitable donation, community service or a short course. It is usually offered to people with no prior record where the value is modest and the facts are straightforward.

Do I have to pay the civil demand letter from the store?

A civil demand letter is a private claim by the retailer and has no effect on the criminal charge. Paying it does not cause the charge to be withdrawn, and refusing to pay it does not make the criminal case worse. Speak to counsel before responding to one.

Criminal Defence Core

Theft Under $5000 Lawyer in Canada

A theft under $5000 lawyer defends charges under Criminal Code, s. 322 (theft) and s. 334(b) (theft not exceeding $5,000). This page sets out what the offence covers, what the Crown must prove, the penalties on conviction and the defences that are commonly available, then lists criminal defence firms you can contact.

Criminal Code, s. 322 (theft) and s. 334(b) (theft not exceeding $5,000)·hybrid offence

What Theft Under $5,000 covers in Canadian criminal law

Theft under $5,000 is the most frequently prosecuted property offence in Canada. Section 334(b) makes it a hybrid offence, so the Crown chooses whether to proceed summarily or by indictment, and the great majority of shoplifting and low-value workplace theft matters proceed by summary conviction.

The elements are identical to any other theft under section 322. The Crown must prove a fraudulent taking or conversion, without colour of right, with intent to deprive. Absent-mindedness, a genuine belief that an item had been paid for, or a dispute over ownership all go directly to that intent requirement.

The real consequence of a conviction is rarely the sentence. It is the permanent criminal record for an offence of dishonesty, which appears on employment and volunteer record checks and can affect professional licensing, immigration status and travel to the United States. That is why diversion, withdrawal and discharges are the usual objectives of defence counsel.

What the Crown must prove

The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.

The accused took or converted property belonging to another person
The taking was fraudulent and without colour of right
The accused intended to deprive the owner of the property
The value of the property did not exceed $5,000
Identity of the accused and the date and jurisdiction of the alleged offence

Penalties and consequences on conviction

A maximum of two years imprisonment on indictment, or the summary conviction maximum where the Crown elects summarily
A criminal record for an offence of dishonesty
Probation, restitution and community service in place of custody for most first offenders
Loss of employment, licensing problems and difficulty entering the United States
A separate civil demand letter from the retailer, which is independent of the criminal case

Common defences

No intent to steal, including genuine forgetfulness at a self-checkout or a lost receipt
Colour of right, where the accused honestly believed the property was theirs to take
Identification failures where loss-prevention video is poor quality or incomplete
Unlawful detention or search by loss-prevention staff engaging Charter or common-law limits
Charter breaches, including denial of the right to counsel after a store arrest
Diversion or a peace bond as a resolution that avoids any finding of guilt

Theft under $5000 lawyer: frequently asked questions

Will a shoplifting charge give me a criminal record?: Only a conviction creates a criminal record. If the charge is withdrawn after diversion, or if the court grants an absolute or conditional discharge under section 730, there is no conviction and therefore no criminal record, although a discharge does leave a record of the finding of guilt for a limited period.
What is diversion and who qualifies?: Diversion, sometimes called direct accountability, is a Crown-run program in which a low-value theft charge is withdrawn after the accused completes conditions such as a charitable donation, community service or a short course. It is usually offered to people with no prior record where the value is modest and the facts are straightforward.
Do I have to pay the civil demand letter from the store?: A civil demand letter is a private claim by the retailer and has no effect on the criminal charge. Paying it does not cause the charge to be withdrawn, and refusing to pay it does not make the criminal case worse. Speak to counsel before responding to one.

Find a theft under $5000 lawyer

These criminal defence firms handle Criminal Code matters and can advise on Theft Under $5,000 charges. Confirm the scope of a firm’s practice before retaining counsel.