Theft Under $5,000 and Mischief Charges in Canada: Penalties and Diversion

Theft of property worth $5,000 or less and mischief are both hybrid Criminal Code offences with penalties that scale by value and harm, and the diversion program that can resolve a first time charge without a conviction has moved to a new part of the Code as of 2026.

Information last verified on 2026-09-24. This article has not yet been reviewed by a licensed lawyer.

This article covers federal Criminal Code offences that apply the same way across Canada: theft under s.334(b), mischief under s.430, and the adult diversion scheme now in Part XXII.2. It does not predict how any specific charge will be resolved, and it does not cover provincial trespass or bylaw offences. For the constitutional framework governing police searches connected to a theft or mischief investigation, see Section 8 of the Charter: Search and Seizure, and for what happens if you are arrested and held for a bail hearing, see Bail Hearings in Canada.

Theft Under $5,000: Section 334(b)

Theft is defined elsewhere in the Criminal Code; s.334 sets the penalty structure based on the value of what was taken. Where the property taken is worth $5,000 or less, s.334(b) makes theft a hybrid offence: the Crown can elect to prosecute by indictment, carrying a maximum of 2 years, or proceed by summary conviction, where the general summary conviction penalty in s.787(1) applies: a fine of not more than $5,000, imprisonment of not more than two years less a day, or both. Where the property is worth more than $5,000, or is a testamentary instrument such as a will regardless of its dollar value, s.334(a) is also a hybrid offence: a maximum of 10 years on indictment, or prosecution by summary conviction.

The $5,000 line used here is the same threshold the Code uses for several other property offences, including fraud and possession of property obtained by crime, though this article does not independently verify the details of those parallel provisions.

Mischief: Section 430

Mischief is defined broadly. Under s.430, a person commits mischief who wilfully:

• Destroys or damages property.
• Renders property dangerous, useless, inoperative, or ineffective.
• Obstructs, interrupts, or interferes with the lawful use, enjoyment, or operation of property.
• Obstructs, interrupts, or interferes with a person's lawful use, enjoyment, or operation of property.

Section 430(1.1) extends this to computer data specifically. Penalties scale sharply with the harm caused and the value involved:

The $5,000 line under s.430(3) and (4) mirrors the same threshold used for theft under s.334.

Diversion Has Moved: Do Not Rely on Section 717

Many older explanations of Canadian criminal procedure, including material written before 2026, describe adult diversion or alternative measures under Criminal Code ss.717 to 717.4. That citation is now out of date. Section 717 itself was repealed by the Protecting Victims Act, and the consolidated Criminal Code confirms it directly:

"717 [Repealed, 2026, c. 19, s. 61]"

The Protecting Victims Act, S.C. 2026, c. 19, received Royal Assent on June 18, 2026. Justice Canada's Annual Statutes record describes it as:

"An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)." (Protecting Victims Act, S.C. 2026, c. 19, Annual Statutes)

That same Act relocated the adult diversion scheme into a new Part XXII.2 of the Criminal Code, beginning at s.715.44, rather than eliminating diversion.

Part XXII.2 came into force on July 18, 2026, the 30th day after Royal Assent under s.205(1) of the Act. It keeps diversion, but it is more than a renumbering. Under s.715.47, a police officer must, where appropriate and where it does not pose a risk to public safety, consider taking no further action, issuing a warning, or, with the person's consent, making a referral, instead of laying an information. Under s.715.48, a prosecutor must similarly consider a warning or a referral before commencing or continuing judicial proceedings. The Part also sets out principles for restorative justice processes, starting at s.715.53.

It is a different statute from the Bail and Sentencing Reform Act, S.C. 2026, c. 11, discussed on Bail Hearings in Canada; the two Acts received Royal Assent three days apart in the same 2026 sitting of Parliament but cover different subject matter.

What Diversion Requires Under the New Part XXII.2

The new Part XXII.2 defines the scheme starting at s.715.44:

"The following definitions apply in this Part. alternative measures means measures other than judicial proceedings under this Act that are applicable in respect of a person who is 18 years of age or older and is alleged to have committed an offence... restorative justice... means an approach to justice that seeks to repair the harm caused by an offence to individuals and their relationships." (Criminal Code, RSC 1985, c C-46, s 715.44)

Section 715.49 sets out the conditions for using alternative measures, and they restate, in the current numbering, substantially the same gate the old s.717 used:

• An authorized program exists.
• The case is suitable given the needs of the accused and the interests of the victim and society.
• The accused gives full, free, and informed consent, after being advised of the right to counsel.
• The accused accepts responsibility for the act that forms the basis of the offence.
• There is, in the Attorney General's opinion, sufficient evidence to justify prosecution.
• There is no legal bar to prosecution.

For a theft under $5,000 or mischief charge, meeting these conditions is what makes diversion into an authorized program an option instead of prosecution. Diversion is often used for first time, lower level charges, but neither s.715.49 nor the old s.717 limits it to first offenders.

Under s.715.5, alternative measures must not be used for a person who denies participation or involvement in the offence, or who expresses the wish to have the charge dealt with by the court. Using alternative measures does not bar a later prosecution, but s.715.52(1) sets out what happens if a charge is laid. If the court is satisfied on a balance of probabilities that the person totally complied with the terms and conditions of the alternative measures, the court must dismiss the charge. If the person partially complied, the court may dismiss the charge if prosecuting it would be unfair, having regard to the circumstances and the person's compliance.

Under s.715.51, an admission, confession or statement accepting responsibility made as a condition of being dealt with by an alternative measure is not admissible in evidence against the person in any civil or criminal proceedings. This article does not cover how records of alternative measures are kept; ask duty counsel or the Crown about that, and about the specific program available in your jurisdiction.

What a Conviction Means for a Criminal Record

Whether a theft or mischief case is resolved by conviction, whether summary or indictable, a conviction creates a criminal record. Diversion, where it is available and completed, is a route to avoiding that outcome rather than a guarantee tied to any particular charge. There is also a third possible outcome: for an offence with no minimum punishment that is not punishable by 14 years or life, s.730 lets a court that has accepted a guilty plea or found the accused guilty direct an absolute or conditional discharge instead of convicting, if it considers that in the accused's best interests and not contrary to the public interest. Someone who already has a record from an older theft or mischief conviction, or who is weighing the record consequences of a current charge, can read Record Suspensions (Pardons) in Canada for how a past conviction can later be addressed, and Criminal Record Checks in Canada for how a record can surface in the meantime.

Disclaimer: This article provides general information about federal Criminal Code theft, mischief, and adult diversion provisions as they applied across Canada, current as of September 2026. It is not legal advice and has not yet been reviewed by a licensed lawyer. It does not predict the outcome of any specific charge and does not describe every part of the Part XXII.2 diversion procedure, including how alternative measures records are kept. Consult duty counsel, your provincial or territorial Legal Aid program, or a lawyer licensed in your province for advice on a specific matter.

Frequently Asked Questions

Is theft under $5,000 a criminal record in Canada?

A conviction for theft under $5,000 under Criminal Code s.334(b) does result in a criminal record, whether the Crown proceeds summarily or by indictment, because it is a criminal offence either way. Diversion into an authorized alternative measures program, discussed below, is a way to resolve some first time, lower level charges without a conviction, but that is a case by case decision, not an automatic outcome. For what a record means afterward, see Record Suspensions (Pardons) in Canada and Criminal Record Checks in Canada.

What is the maximum penalty for theft under $5,000 in Canada?

Theft of property worth $5,000 or less is a hybrid offence under s.334(b). If the Crown elects to proceed by indictment, the maximum penalty is 2 years. If the Crown proceeds summarily, the general summary conviction penalty in s.787(1) applies instead: a fine of not more than $5,000, imprisonment of not more than two years less a day, or both. This article does not predict which election the Crown will make in any specific case.

What is the difference between theft and mischief in Canada?

Theft under s.334 involves taking someone else's property. Mischief under s.430 involves damaging, endangering, rendering useless, or interfering with someone's lawful use of property, including computer data, without necessarily taking it. A single set of facts, such as breaking into a vehicle, can sometimes support charges under both sections depending on what happened.

Is Criminal Code section 717 still the law on diversion?

No. Section 717 is repealed. The Protecting Victims Act, S.C. 2026, c. 19, relocated the adult alternative measures and diversion scheme into a new Part XXII.2 of the Criminal Code, beginning at s.715.44. The eligibility conditions for diversion, such as consent, accepting responsibility, and an authorized program, are carried forward from the old section. The new Part, in force since July 18, 2026, also adds duties for police and prosecutors to consider warnings and referrals. Any source that still cites section 717 for adult diversion is citing a repealed provision.

Can a first time shoplifting or theft charge be diverted instead of prosecuted?

Diversion, now governed by Part XXII.2 of the Criminal Code starting at s.715.44, is available only where an authorized program exists, the case is suitable given the needs of the accused and the interests of the victim and society, the accused gives full, free and informed consent after being advised of the right to counsel, the accused accepts responsibility for the act, the Attorney General is satisfied there is sufficient evidence to prosecute, and there is no legal bar to prosecution. Whether a specific charge qualifies is a decision made by the Crown and the diversion program, not something this article can predict for an individual case.