Shoplifting: Criminal Code of Canada

In Canada, shoplifting charges are codified in the Criminal Code and generally come in three different forms:

1. theft under $5000;
2. fraud under $5000;
3. possession of stolen property

Here are the specific criminal code shoplifting provisions along with explanations of when police typically choose to include these charges on the Appearance Notice (Form 9) or Undertaking (Form 10).

Theft under $5000

This is the most common charge associated with shoplifting related incidents. The term theft is generally defined in Section 322 and the specific sentencing provision for under $5000 is found in Section 334 (b).

Section 322

(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

   (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

   (b) to pledge it or deposit it as security;

   (c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

   (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Section  334 (b)

Except where otherwise provided by law, every one who commits theft is guilty

    (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

   (ii) of an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars.

You'll see that there are two sentencing options for the Crown Attorney to consider. The first is the indictable offence option that carries a maximum two year jail term. The second is a summary conviction option which would carry a maximum jail sentence of 6 months. This distinction and choice of the Crown Attorney is also relevant in how a shoplifting charge can affect IRCC immigration and Canadian citizenship applications.

Possession of Stolen Property (obtained by crime)

In Toronto if you are charged with theft under $5000 or fraud under $5000 the police will often also include a charge of possession of stolen property. In our experience, there does not tend to be anything factually different in cases where the possession charge is included versus those where it is not. Some police officers have a habit of including this charge while others do not.

The specific provision reads as follows:
 
Section 354 (1)

Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

    (a) the commission in Canada of an offence punishable by indictment; or
   
    (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

Possession of stolen property is a hybrid offence which can be prosecuted by way of indictment or summary conviction. This decision is one that is decided by the Crown Attorney as is provided for in Section 355 of the Criminal cCode:

Section 355

Every one who commits an offence under section 354

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

    (b) is guilty

       (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

       (ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

Fraud under $5000

In cases where the shoplifter switches or manipulates a price tag, they are often charged with fraud under $5000. Sometimes this charge is laid when the person lies to a cashier about a price or having paid for the item. While the degree of malice in these types of cases is arguably equal to a theft under charge, a fraud charge and/or conviction looks particularly deceitful to employers, professional associations, and immigration officers.

The specific section for fraud under $5000 is found in Section 280 (1)(b) of the Criminal Code, which reads:

Section 380 (1)(b)

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, ...

   (b) is guilty

        (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

       (ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.


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