Theft Lawyer Toronto | Theft Charge Defence | Sewrattan Criminal Lawyers

Composed by Chris Sewrattan, Certified Specialist in Criminal Law. Updated July 2026.

This is legal information, not legal advice. It does not create a lawyer-client relationship. For advice about your situation, contact us for a consultation.

Theft is defined in section 322 of the Criminal Code and divided by section 334 into two charges: theft over $5,000 and theft under $5,000. The definition is more demanding than most people expect. Taking something is not theft unless it was done fraudulently, without colour of right, and with intent to deprive the owner. Those words carry real defences, because honest mistakes, genuine ownership disputes, and absent-minded conduct are not crimes.

What is theft under Canadian law?

The Crown must prove beyond a reasonable doubt that the accused:

Took or converted property: physically taking it or dealing with it as if it were their own, which is how employee and trustee cases arise.
Acted fraudulently and without colour of right: dishonestly, and without an honest belief in a legal entitlement to the property. A genuine, even mistaken, belief in a right to take the property is a defence.
Intended to deprive the owner: temporarily or absolutely. Intending to return the property later does not automatically defeat the charge, but the intent at the moment of taking is what matters.

Theft sits in a family of property offences. Retail cases are dealt with on our shoplifting page, cases about goods someone else stole on our possessing stolen property page, and deception-based cases on our fraud page. The dividing line between theft and fraud is the method: theft is taking; fraud is obtaining by deceit.

Penalties for theft in Ontario

Theft under $5,000 is a hybrid offence with a maximum of 2 years in prison if the Crown proceeds by indictment, or 2 years less a day on summary conviction. Theft over $5,000 carries a maximum of 10 years where the Crown proceeds by indictment, and the Crown can also elect to proceed summarily. There are no mandatory minimums for theft.

Actual outcomes in Ontario depend far more on context than on the maximums. First-time allegations involving modest values are routinely resolved through diversion, withdrawal with a charitable donation or counselling, peace bonds, or discharges. At the other end, thefts in breach of trust, such as an employee stealing from an employer, are treated as seriously aggravated under section 718.2 of the Criminal Code, and significant or repeated thefts attract jail. From July 15, 2026, organized retail theft is also a statutory aggravating factor at sentencing. Restitution is often central to resolution, and a restitution order can accompany any sentence.

Possible defences to a theft charge

Depending on the evidence, defences may include:

Colour of right: an honest belief in a legal entitlement to the property, common in disputes between former partners, roommates, business associates, and landlords and tenants.
No intent to deprive: absent-mindedness, misunderstanding, or an intention to borrow with genuine authority to do so.
Ownership and authority disputes: property that was jointly owned, gifted, or subject to an agreement.
Identity and continuity: whether the Crown can prove who took the property and that the recovered property is what was taken.
Value: the over and under $5,000 line changes the charge and the realistic outcomes, and valuation evidence can be contested.
Charter issues, including unreasonable searches and statements taken in breach of the right to counsel.

Frequently asked questions

What is the difference between theft over and theft under $5,000?

The value of what was allegedly taken. Theft under $5,000 carries lower maximum penalties and is more often resolved through diversion; theft over $5,000 carries a 10-year maximum by indictment and is treated more seriously.

Will a theft charge give me a criminal record?

Only a conviction creates a criminal record. Many first-time theft matters in Ontario resolve through diversion, withdrawal, or a discharge, none of which is a conviction, although records of the charge itself exist and can matter for some purposes.

What is theft diversion?

A program in which the Crown withdraws the charge after the accused completes steps such as counselling, community service, or a charitable donation. Eligibility depends on the value taken, the circumstances, and the accused's history.

Is taking something I intended to return still theft?

It can be. The offence includes an intent to deprive the owner temporarily. That said, intent is assessed on all the evidence, and a genuine borrowing arrangement or honest belief in permission is a defence.

Why is employee theft treated more seriously?

Because theft in breach of trust is a statutory aggravating factor at sentencing. Courts treat the abuse of an employer's trust as significantly more serious than an equivalent theft from a stranger.

Can a theft charge be dropped if I pay the money back?

Repayment does not automatically end a prosecution, but restitution matters. It supports diversion, strengthens resolution discussions, and reduces sentence if the case ends in a finding of guilt.

Charged with theft? Contact us