Theft under $5,000 is the charge laid in Alberta when a person takes or converts something that belongs to someone else, intending to deprive them of it, and the value of what was taken is $5,000 or less. It is the most common property charge in the province and covers everything from a bottle of shampoo at a drugstore to a used vehicle bought with a bad cheque. Under section 334 of the Criminal Code it is a hybrid offence: the Crown can proceed by indictment, with a maximum of two years in prison, or by summary conviction. Either way, a conviction creates a criminal record.
People often assume that a small theft is a small problem. The dollar amount decides the maximum sentence, not whether you end up with a record.
What does the Crown have to prove?
Section 322 of the Criminal Code defines theft. The Crown must prove that you:
- took or converted something, whether property, money or anything with value, that was not yours;
- did so fraudulently and without colour of right, meaning you knew you had no honest claim to it; and
- intended to deprive the owner of it, either permanently or temporarily.
Two points trip people up. First, you do not have to leave the store. Theft is complete the moment you move the item with the intent to steal it, which is why concealing merchandise in a bag or under a coat is enough. Second, intent to return the item later is not a defence. Borrowing something without permission, intending to bring it back, is still theft because the owner was deprived of it in the meantime.
Colour of right is the real defence in many cases. If you honestly believed you were entitled to the property, even if you were wrong, the Crown cannot prove the fraudulent intent the offence requires. Disputes between former roommates, business partners and separated spouses over who owns what often come down to this.
How is the $5,000 line drawn?
The value is what was taken, measured at the time. For store merchandise, that is the retail price. For other property, it is the fair market value, and the Crown will often call evidence of it. Several thefts from the same victim can be charged together, so a pattern of smaller amounts from an employer can be prosecuted as a single theft over $5,000. The two tiers are set out in section 334 of the Criminal Code: over $5,000 carries a maximum of ten years on indictment, while under $5,000 carries a maximum of two years.
What sentence does theft under $5,000 carry?
There is no mandatory minimum, and the range in practice is wide. A first time shoplifting charge for a small amount, with no record, may end in a discharge, a fine or a period of probation. A conditional discharge means that if you complete the conditions, you will have no conviction, although the discharge itself stays on the national database for three years. Repeat offences, larger amounts and planning move the sentence up the scale.
Theft from an employer is treated differently from theft from a store. Alberta courts regard it as a breach of trust, and a jail sentence is the usual starting point even for a first offence. The same approach applies to theft by caregivers, by people handling money for a charity or a club, and by anyone else in a position of trust.
Can the charge be resolved without a conviction?
Sometimes. Alberta has an Adult Alternative Measures Program under which the Crown can refer an eligible first time accused to a program of community service, restitution or counselling instead of a prosecution. If the program is completed, the charge is withdrawn and no conviction results. Eligibility is decided by the Crown, and it is not available for every charge or every person. Whether it is offered often depends on how the case is presented before the first court date, which is one reason to involve a lawyer early rather than after a plea has been entered.
What are the consequences beyond the sentence?
A theft conviction is an offence of dishonesty, and employers treat it that way. It appears on a criminal record check for jobs in retail, banking, health care, education and anything involving a vulnerable person. It can affect entry to the United States. For anyone who is not a Canadian citizen, a conviction for a hybrid offence counts as an indictable offence under immigration law and can affect status in Canada, even where the sentence is a small fine. A lawyer who handles theft and property offences can explain how a charge is likely to be treated and what resolution options exist in your circumstances.
Liberty Law LLP is a criminal defence firm with offices in Edmonton, Grande Prairie and Fort McMurray, Alberta. How a theft charge resolves depends on the facts and the person charged.
Frequently asked questions
Is shoplifting a criminal offence even for a very small item?
Yes. There is no minimum value. A $4 item concealed and carried past the point of sale is theft under $5,000, and it is charged under the same section as a $4,000 item. Stores and police do exercise discretion over whether to call the police or lay a charge, but once a charge is laid, the value affects the sentence rather than whether the offence exists.
Does a theft under $5,000 charge go away if I pay the store back?
No. Repaying the loss does not withdraw the charge, and a civil demand letter from a store’s lawyer is a separate matter from the criminal case. Restitution can be a condition of alternative measures or a factor in sentencing, but it is not a defence.
Will theft under $5,000 show on a record check if I was discharged?
A conditional discharge appears on a criminal record check until it is automatically removed three years after the discharge. An absolute discharge is removed after one year. Some enhanced checks, such as vulnerable sector checks, may show more. After the removal period, a standard check should come back clear.
If you have been charged with theft, do not speak with store security, police or your employer about what happened until you have spoken with a lawyer. What is said in the first hour is often the most important evidence in the case.