Theft and fraud are two of the most commonly prosecuted criminal offences in Canada and they often catch people off guard. What might seem like a “minor” incident, like forgetting to scan an item or shoplifting a $30 product, can still result in a criminal record that affects your future employment, travel, and more. If you’re facing charges for theft, shoplifting, or fraud, it’s important to understand how these offences are treated under Canadian law.

What Are Theft and Fraud Under the Criminal Code?

Theft is defined in section 322(1) of the Criminal Code as taking or converting someone else’s property, with the intent to deprive the owner of it either temporarily or permanently. This includes everything from shoplifting groceries to stealing money from a workplace till.

Fraud, under section 380(1), involves intentionally deceiving someone to gain a benefit, usually money or property. This can involve fake returns, identity theft, using someone else’s credit card, or lying on documents for financial gain.

In short, theft is about physically taking something that doesn’t belong to you, while fraud is about using dishonesty or trickery to get something you’re not entitled to.

Common Examples

  • Shoplifting: Walking out of a store with unpaid merchandise whether concealed or not.
  • Employee theft: Taking money or stock from your workplace.
  • Retail return fraud: Returning stolen goods for store credit.
  • Credit card fraud: Using someone else’s credit card without permission.
  • Online fraud: Selling fake items or misrepresenting services for profit.

Whether these actions are done impulsively or with planning, they can lead to criminal charges with long-term consequences.

What Section Applies?

  • Theft: Section 322 (definition); prosecuted under section 334
  • Fraud: Section 380(1)
  • Forgery-related fraud: Sections 366–368 (false documents, identity fraud, etc.)

Under vs Over $5,000 – What’s the Difference?

Both theft and fraud are divided into two categories depending on the value involved:

  • Theft or Fraud under $5,000: Less serious, but still criminal.
  • Theft or Fraud over $5,000: Considered a more serious indictable offence and often punished more harshly.

Under section 334(b) for theft and section 380(1)(b) for fraud, offences under $5,000 are hybrid offences, meaning the Crown can choose to proceed summarily or by indictment, depending on the facts and your prior record. If the amount is over $5,000, the Crown usually proceeds by indictment, which carries more severe penalties.

Hybrid? Yes.

Most shoplifting, theft, and fraud charges are hybrid offences. This gives the Crown discretion to treat the offence as summary (less serious) or indictable (more serious), which will affect sentencing, court procedure, and eligibility for diversion or discharge programs.

Is a Preliminary Inquiry Available?

A preliminary inquiry is only available when the offence is indictable and carries a maximum sentence of 14 years or more. Therefore:

  • Fraud over $5,000: Yes, eligible, as it can carry a sentence up to 14 years
  • Theft over $5,000: No carries a maximum of 10 years, so no preliminary
  • Under $5,000 charges: Not eligible, regardless of whether theft or fraud

Mandatory Minimums?

In general, there are no mandatory minimum sentences for first-time theft or fraud offences. However, repeat offenders, especially in commercial theft (organized shoplifting rings, large-scale employer theft), may face harsher sentences, and judges have discretion to impose jail even on smaller dollar-value crimes if aggravating factors exist.

What’s the Range of Sentencing?

  • Summary conviction (under $5,000):
    1. Max 2 years less a day, often resolved with diversion, fines, or probation
  • Indictable (over $5,000):
    1. Theft: Max 10 years
    2. Fraud: Max 14 years

Sentencing can include jail, house arrest (conditional sentence), fines, and restitution

For fraud over $5,000, section 380.1(1) requires courts to consider aggravating factors, such as:

  • Large number of victims
  • Abuse of trust (e.g. employer/employee)
  • Impact on victim’s financial security
  • Planning and premeditation

Judges often refer to CanLII case law like R. v. McMillan, 2020 ONCJ 531, where fraud under $5,000 still resulted in a custodial sentence because of breach of trust.

For minor, first-time shoplifting cases, the court may offer diversion programs, absolute or conditional discharges, or fines, especially if restitution is paid and there’s remorse. But don’t assume this is automatic. Repeat shoplifting can be treated very differently.

Not every allegation of theft or fraud leads to a conviction; there are legal defences available depending on the facts.

  • One common defence is colour of right, which applies when the accused genuinely believed they had a legal right to the item in question. For example, if someone took property they thought belonged to them or had permission to use, this could negate the intent to steal.
  • Another important defence is lack of intent, which may arise if the person forgot to scan an item or didn’t realize they had it in their possession when leaving a store. Since both theft and fraud require a specific intent to deprive or deceive, proving that the act was accidental or without dishonest intent can be a strong defence in court.

Facing a Theft or Fraud Charge?

Whether you’re charged with shoplifting from a store, taking funds from work, or accused of financial fraud, you need to understand the seriousness of the charge and the options available. Even a small charge can follow you for years if not handled properly.

A criminal defence lawyer can often negotiate withdrawals, diversions, or non-criminal outcomes for first-time or low-risk cases. In more serious frauds or large-scale thefts, strong legal advocacy is essential to reduce the impact on your life.

📞 Contact Linh Pham at (306) 502-5987 today for a free consultation and take the first step toward protecting your future.

Legal references:

Criminal Code of Canada:

  • Section 322(1) – Definition of theft
  • Section 334 – Theft over/under $5,000
  • Section 380(1) – Fraud
  • Section 380.1(1) – Aggravating factors in fraud

R. v. McMillan, 2020 ONCJ 531 – https://canlii.ca/t/jc6ts

CanLII Commentary – Theft and Fraud: https://www.canlii.org/en/commentary/doc/2021CanLIIDocs348