Shoplifting Lawyer Toronto | Theft Under $5,000 Defence

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.

Shoplifting is prosecuted as theft under $5,000, an offence under sections 322 and 334 of the Criminal Code. It is one of the most commonly laid charges in Toronto, and it is also one of the most survivable: for a first-time accused, most shoplifting matters resolve without a criminal conviction through diversion or similar outcomes. That is not automatic. It depends on how the case is handled from the first appearance, and on understanding that the store's civil demand letter and the criminal charge are two different things.

What is shoplifting under Canadian law?

There is no separate shoplifting offence; the charge is theft. The Crown must prove that the accused took store merchandise fraudulently, without colour of right, and with intent to deprive the store of it. Intent is the heart of most defences, because the act of walking out with unpaid merchandise is often not in dispute; whether it was deliberate is.

Most cases begin with a stop by store security. Loss prevention officers are private citizens, and their arrest power comes from section 494 of the Criminal Code: they can arrest a person they find committing theft and must deliver the person to police promptly. What happens during that stop, including any search, statement, or detention, can matter to the criminal case. Police then typically release the accused with paperwork requiring a court appearance and often a condition not to attend the store.

Penalties for shoplifting in Ontario

Theft under $5,000 is a hybrid offence with a maximum of 2 years in prison by indictment or 2 years less a day on summary conviction, but the maximums say little about real outcomes. In Toronto, a first-time shoplifting allegation involving modest value is commonly resolved through the Crown's diversion program, which typically involves counselling, community service, or a charitable donation in exchange for the withdrawal of the charge. Discharges and peace bonds are also common. Jail enters the picture for repeated retail theft, organized re-selling, or lengthy records. From July 15, 2026, organized retail theft is a statutory aggravating factor at sentencing; the change is aimed at coordinated and repeat operations, not at the first-time matters that flow through diversion.

Separately from the criminal case, many retailers send a civil recovery letter demanding several hundred dollars. That letter is a civil matter between you and the store: paying it does not end the criminal charge, and not paying it is not a criminal offence. Get advice before responding to one.

Possible defences to a shoplifting charge

Depending on the evidence, defences may include:

No intent to steal: absent-mindedness, distraction, a child placing items in a bag or stroller, and honest confusion are real and recognized defences, because theft requires a dishonest state of mind.
Self-checkout errors: missed scans, misread codes, and machine errors are increasingly common sources of charges where the intent to steal is genuinely absent.
Payment and authority issues: items already paid for, exchanges, and misunderstandings about store policy.
Identity and continuity: whether the video actually shows the accused, and whether the merchandise alleged matches what was recovered.
Problems with the stop: an unlawful detention or search by loss prevention or police can affect the admissibility of statements and evidence under the Charter.

Frequently asked questions

Will a shoplifting charge give me a criminal record?

Only a conviction creates a criminal record, and most first-time shoplifting matters in Toronto resolve without one, through diversion, withdrawal, a peace bond, or a discharge. The goal from day one is a resolution that protects your record.

What is diversion for shoplifting?

A program in which the Crown withdraws the charge after you complete steps such as counselling, community service, or a donation. Eligibility depends on the value involved, the circumstances, and your history.

Should I pay the civil demand letter from the store?

The letter is a civil claim separate from the criminal charge; paying it does not resolve the prosecution, and ignoring it is not a crime. Speak to a lawyer before paying or responding, because the right answer depends on your situation.

Do I have to answer questions from store security or police?

No. You are not required to explain yourself to loss prevention or to police, and anything you say can be used in the case. Provide identification when required on arrest and otherwise exercise your right to silence and to counsel.

Can the store ban me?

Yes. Stores can prohibit people from their property regardless of the criminal outcome, and your release conditions will often require you to stay away from the location while the case is ongoing.

It was an honest mistake at self-checkout. Do I still need a lawyer?

Yes. Honest mistake is a defence, but presenting it effectively, protecting your record, and navigating diversion or trial requires advice from the outset.

Charged with shoplifting? Contact us