Workplace Fraud Under $5000 charges in Canada

Fraud charges relating to people stealing from their employer are the most common form of cases we see under Section 380(1) of the Criminal Code.

Larger employers such as retail stores (Wal-Mart, Home Depot, Superstore, etc.) make up the vast majority of the cases as they have private loss prevention investigators and accountants to scrutinise employees and their transactions while working in the store.

In the employment setting, charges often stem from incidents involving fraudulent gift card crediting, store credit being improperly applied, and transactions that are wrongly made by the cashier. Sometimes false returns are made to credit a gift card or a “store credit” card. Depending on the store the employee may be able to credit a gift card without a receipt or item to return.

While most people charged with fraud under $5000 from their employer are “working alone” sometimes it also involves a co-accused which is often a boyfriend/girlfriend, spouse, or friend. If the police are able to identify the other person involved they will normally be charged as a co-accused to the crime.

Other fraud cases may involve an employee improperly giving discounts to themselves or their friend or spouse who may also themselves get charged.

When an employee is suspected of theft by the store loss prevention, they will normally be called in for an interview with the store’s private investigators who will attempt to extract information and admissions from the employee. Sometimes the employee will be given the impression that by complying, being honest, and answering their incriminating questions that they may not lose their job and have the case be reported to the police for criminal fraud charges.

In reality, the store is attempting to extract evidence as soon as possible to determine their losses and gain an admission of guilt (confession) before reporting the crime to the police. Virtually all stores, particularly larger retail stores, will always report the incident(s) to the police and ask that they press criminal charges.

Unfortunately, by the time the employee has been charged they may have already admitted their guilt when the store security was not sure if it was provable. In other words, they needed the confession. The accused may have also simply made their case a lot worse by admitting to a far larger amount of fraud or theft than what the store security could actually prove.

CCTV video surveillance is not kept forever and often when someone is under investigation specific steps are taken to document the illegal activity of the employee.

In some cases the employee may have been defrauding or stealing from the store for a very long time before the store security clued into it. They may have evidence of the last few incidents of fraud or theft, but not of everything that occurred. This evidence may not be available for prior incidents so if the employee admits to it they will be held accountable based on their statements. This can be the difference between hundreds to many thousands of dollars.

In any fraud case, the amount of money that was defrauded is a significant factor that will be considered by both the Crown Attorney and the Judge.

The higher the dollar amount, and the more individual times a fraud occurred, the worse the case is considered. While the Crown Attorney will seek a criminal conviction record initially in nearly all of employee fraud cases (even for first time offenders), the punishments sought will increase with the value level.

It is not uncommon for the Crown to seek a year long jail sentence, followed by years of probation for a first time fraud charge from an employer in Ontario. The offender will also receive a criminal record.

Sometimes the accused works for a multinational employer with offices in the U.S., U.K., Europe, or elsewhere.

Some people charged with fraud from their employer offences have built a career working for large companies that have offices outside of Canada such as in the U.S. or Europe. Problems travelling can arise as a result of the charge.

Since both fraud under $5000 and over $5000 are considered crimes of moral turpitude, U.S. Customs and other foriegn countries may determine that the accused should be denied entry even for travel related purposes (let alone business). Most people who get charged by the police for fraud relating to their workplace will be fired, but may try to transition to similar jobs for other companies which are often in the same industry.

If they cannot travel to countries such as the USA for business purposes, or are legally banned from working with bookkeeping, accounting or finances, this can present a major problem in finding new employment. Furthermore, most large companies will require an employment background check either through a third party that the potential employee consents to or through their local police force. Any fraud conviction would show up on these background checks.

Pending charges and discharges will also show up on police record checks under non-convictions.

In the case of discharges, an absolute discharge will be listed for one year and a conditional discharge will be listed for three years. Discharges are also considered non-convictions in Canada but not by the United States. They indicate a finding of guilt which either arose from the accused pleading guilty or being found guilty after a trial.

Jail sentencing guidelines and expectations for people charged with fraud under $5000 and over $5000 from an employer in Canada.

What can I expect the Crown Attorney in Ontario to seek for a jail sentence in addition to probation and a criminal record?

The Crown often will seek a jail sentence (sometimes a conditional sentence ie. house arrest) or a suspended sentence (no custody but a criminal record) at a minimum. As the value increases so does the likelihood that they will seek a jail sentence. In cases where the Crown is asking to jail the accused, they will ask for a longer jail term in higher value and multiple incident cases. This could be the difference between the Crown asking for 30 days in jail or 2 years.

Just because the Crown is asking for a particular sentence does not mean that is what will happen to the accused.

The job of the criminal defence lawyer is to try to persuade the Crown to drop (withdraw) the charges, reduce their requested sentence, or have their client found not guilty at trial. In all cases, it is best that the accused exercise their right to remain silent when dealing with store security and the police. This being said, just because the accused has talked and incriminated themselves does not mean their case cannot be successfully handled and resolved. Sometimes statements can be deemed inadmissible by the court for Charter violations.

Every breach of trust (theft from an employer) fraud case will be taken extremely seriously.

In addition to jail, probation, and a permanent criminal record the Crown may also ask the court to have the accused be legally banned from employment positions where they are in a position of power over money or financial transactions under s. 380.2(1) of the Criminal Code.

For working professionals, or students hoping to aspire to such jobs requiring this in their future, these are extremely serious potential consequences. Such an ancillary order would virtually guarantee the accused would never work with any job handling or having a responsibility over money again for the duration of the order.

Many times the alleged fraud is committed by a young immigrant, student, or someone on a work permit in Canada. Perhaps they had a job at Home Depot, LCBO, Wal-Mart, or some other large corporation and made the mistake of trying to exploit their employer to make some extra cash. These are often youthful first time offences where the accused has much more at stake than they realised before getting caught.

Many of our first time theft from employer clients come from countries such as India, the Philippines, and China and are in the immigration system.

Both Fraud Under $5000 and Fraud Over $5000 charges can negatively impact IRCC immigration status and applications in Canada.

We have many clients from India, China and other countries charged with allegedly stealing from their workplace. They are often in Canada as students, on a work permit, permanent residents (PR) and sometimes tourist visas. As they are not Canadian Citizens they risk having their immigration status revoked and being deported and banned from travelling to Canada, the U.S. and other countries in the future depending on the result of their case.

While immigrants with IRCC applications perhaps have the most to risk, everyone charged with stealing from their employer is realistically looking at a potential jail sentence, a criminal record, deportation and being deemed inadmissible to Canada (if not a Canadian Citizen), and being denied entry to travel to other countries Canada shares police database information (CPIC) with in the future such as the USA, UK, Australia, and many European countries.

Anyone, regardless of their country of citizenship, who receives a Form 9 Appearance Notice or a Form 10 Undertaking for Fraud Under or Over $5000 should speak to a lawyer immediately for legal advice about their case. Criminal cases in Canada are time sensitive and final results are generally permanent so those charged should consult with a lawyer as soon as possible.

If you are in the Canadian immigration system, please see our page on fraud charges and how they impact IRCC applications.

Multiple counts of fraud charges (ie. Fraud Under $5000 X 10)

Sometimes the police will just charge the accused with one count of Fraud Under $5000 or they may decide to charge individually for each time a fraud occurred. If you are charged with more than one count of fraud it will say so on the Form 9 Appearance Notice or Form 10 Undertaking that was provided to you by the police.

As of 2022, the Form 10 Undertaking will be provided on white paper while the Form 9 Appearance Notice may also be white but also possibly on a blue/green carbon copy style form resembling a ticket. The Form 9 Appearance Notice should not be confused with a ticket however as it is a Criminal Code charging document legally requiring the accused to attend for fingerprints and a mugshot and attend court (or have their lawyer do that for them if retained).

In addition to the charges (Fraud Under $5000 (s. 380 (1)(b) of the Criminal Code) it will also say X (meaning mathematically times) the number of counts be it 2, 5, 10, 20, etc. The police will normally just put an X + number on the Appearance Notice or Undertaking as opposed to writing it out multiple times.

Whether it is a fraud from an employer or a shoplifting crime related to a retail store (Costco, Home Depot, Canadian Tire, Wal-Mart, Superstore, LCBO etc.), the accused may face multiple counts of fraud under $5000.


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You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with fraud offences throughout Ontario.

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Are you a lawyer? If you are defending a fraud related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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