Toronto Criminal Lawyer

Theft and fraud offences cover a wide range of conduct, from shoplifting a small item to sophisticated financial fraud involving millions of dollars. While the underlying principle is the same, the dishonest taking or obtaining of another person's property, the Criminal Code distinguishes between these offences based on the value involved and the method used. The consequences of a conviction range from a relatively modest sentence to years of imprisonment, depending on the circumstances.

This guide provides an overview of theft and fraud charges under Ontario and Canadian law, the penalties that may apply, and the factors that courts consider when determining an appropriate outcome.

Theft: Criminal Code Section 322

Theft is defined in s.322 of the Criminal Code as the fraudulent taking, conversion, or detention of another person's property with the intent to deprive the owner of it, either temporarily or permanently. The definition is broad and covers taking property, converting property that was lawfully received (such as a rental that is never returned), and detaining property that belongs to someone else.

The Criminal Code divides theft into two categories based on the value of the property:

Theft under $5,000 (s.334(b)). This is a hybrid offence. On summary conviction, the maximum penalty is two years less a day imprisonment. On indictment, the maximum is two years imprisonment. Theft under $5,000 is the charge most commonly associated with shoplifting and minor theft.

Theft over $5,000 (s.334(a)). This is a straight indictable offence with a maximum penalty of ten years imprisonment. The value threshold applies to the value of the property at the time of the offence. Where multiple items are stolen in a single transaction or scheme, the total value is aggregated.

Shoplifting

Shoplifting is not a separate offence in the Criminal Code. It is prosecuted as theft under $5,000 (or over $5,000, depending on the value). However, shoplifting cases have some distinct characteristics:

Detention by store security. Under the Criminal Code, property owners and their agents (including store security) have a limited right to arrest a person found committing a criminal offence on or in relation to their property (s.494). However, the arrest must be made on reasonable grounds and the person must be turned over to police promptly. Excessive force or prolonged detention by store security may give rise to civil liability or a Charter challenge.

Diversion for first-time offenders. Many jurisdictions in Ontario offer pre-charge or post-charge diversion programs for shoplifting offences. These programs typically require the accused to make restitution, complete community service or counselling, and stay out of trouble for a specified period. Upon completion, the charge is withdrawn.

Discharges. For first-time shoplifting offences involving modest values, courts routinely consider absolute or conditional discharges under s.730 of the Criminal Code. A discharge results in a finding of guilt without a conviction, which avoids a permanent criminal record. For more on how discharges work, see our explanation of conditional discharges versus convictions.

Fraud: Criminal Code Section 380

Fraud is a distinct offence from theft. Under s.380 of the Criminal Code, fraud involves the use of deceit, falsehood, or other fraudulent means to deprive another person of property, money, services, or a valuable security, or to put their property at risk. The key distinction from theft is the element of dishonesty or deception.

Like theft, fraud is divided by value:

Fraud under $5,000 (s.380(1)(b)). A hybrid offence with a maximum of two years imprisonment on indictment.

Fraud over $5,000 (s.380(1)(a)). An indictable offence with a maximum of 14 years imprisonment. Where the value of the fraud exceeds one million dollars, a mandatory minimum sentence of two years imprisonment applies under s.380.1(1.1).

Fraud cases can involve a wide range of conduct, including:

• Insurance fraud
• Mortgage fraud
• Investment fraud and securities fraud
• Government benefit fraud (employment insurance, social assistance)
• Credit card fraud
• Business fraud and breach of trust

Identity Fraud and Identity Theft

The Criminal Code contains specific provisions addressing identity-related offences, reflecting the growing prevalence of these crimes:

Identity theft (s.402.2). Knowingly obtaining or possessing another person's identity information with the intent to use it to commit certain criminal offences, including fraud, personation, or the use of forged documents. Maximum five years imprisonment.

Identity fraud (s.403). Fraudulently personating another person, living or dead, with intent to gain an advantage, obtain property, cause disadvantage to the person being personated, or avoid arrest or prosecution. Maximum ten years imprisonment.

Trafficking in identity information (s.402.2(2)). Transmitting, making available, distributing, or selling another person's identity information, knowing that it will be used to commit a criminal offence. Maximum five years imprisonment.

Identity offences often arise alongside other charges such as fraud, forgery (s.366), and uttering forged documents (s.368). These cases can be complex, involving digital evidence, multiple complainants, and sometimes cross-jurisdictional elements.

Penalties and Sentencing Considerations

Sentencing for theft and fraud offences depends on numerous factors. Courts consider:

• Value of the loss: The amount stolen or defrauded is the most significant factor in sentencing
• Breach of trust: Theft or fraud by an employee, professional, or person in a position of trust is treated more seriously
• Planning and sophistication: A well-planned fraud scheme attracts a more severe sentence than an impulsive act
• Number of victims: Offences affecting multiple victims are treated more seriously
• Restitution: Whether the offender has made or offered to make restitution to the victims
• Criminal record: Prior convictions for dishonesty offences weigh heavily against the offender

The sentencing process in Ontario involves a careful consideration of these and other factors, guided by the principles set out in ss.718-718.2 of the Criminal Code.

Defences to Theft and Fraud Charges

Common defences in theft and fraud cases include:

Colour of right. Under s.322(1), a person does not commit theft if they take property under an honest but mistaken belief that they have a legal right to it. This defence applies even if the belief is unreasonable, though its reasonableness affects credibility. A person who genuinely believed the property belonged to them, or that they had the owner's permission to take it, may have a defence.

Lack of intent. Theft requires an intent to deprive the owner of their property. If the taking was accidental or the accused intended to return the property, the necessary intent may not be established. Similarly, fraud requires an intent to defraud; an honest but mistaken representation is not fraud.

Insufficient evidence of value. For theft or fraud over $5,000, the Crown must prove that the value exceeded the threshold. If the evidence of value is weak, the accused may be acquitted of the "over" charge and convicted only of the "under" charge, which carries lesser consequences.

Identity. In some cases, particularly those involving online fraud or identity theft, the central issue is whether the accused was the person who committed the offence.

Understanding the court process after being charged and your right to remain silent are important first steps for anyone facing these charges.

Impact of a Conviction

Beyond the direct penalties imposed by the court, a theft or fraud conviction has significant collateral consequences:

• Criminal record: A conviction creates a permanent criminal record that appears on background checks. This is particularly damaging for dishonesty offences, as employers view them as reflecting on trustworthiness.
• Employment: Many professions require a clean criminal record or conduct background checks. Financial services, government, healthcare, education, and law enforcement positions are particularly affected.
• Professional licensing: Regulated professionals (accountants, lawyers, nurses, financial advisors) may face disciplinary proceedings from their regulatory body in addition to the criminal process.
• Immigration: For non-citizens, a theft or fraud conviction can affect immigration status, including the ability to obtain permanent residency or citizenship, and may result in a removal order.
• Travel: A criminal record can prevent entry to some countries, most notably the United States.

Speak with a Criminal Lawyer. Theft and fraud charges carry consequences that extend well beyond the courtroom, affecting employment, professional standing, and future opportunities. If you are facing theft or fraud charges in Ontario, obtaining early legal advice is essential for understanding your options and building a strong defence. Contact a criminal lawyer to discuss your case in a confidential consultation.