Fraud Over and Under $5,000 in Ontario: Charges, Penalties and Jail

By Robb MacDonald · Updated 21 October 2026

Fraud over $5,000 is an indictable offence with a maximum of 14 years, no discharge available, and a two-year minimum if the total exceeds $1 million on indictment. Fraud of $5,000 or less carries at most two years, stays in the Ontario Court of Justice, and can end in a discharge with no conviction. Jail is possible on both.

Where does the $5,000 line come from?

Both charges come from the same provision, section 380(1) of the Criminal Code, which makes it an offence to defraud the public or any person of property, money, a valuable security or a service "by deceit, falsehood or other fraudulent means." What the Crown has to prove is the same either way. The difference is the penalty paragraph:

• Section 380(1)(a) applies where "the value of the subject-matter of the offence exceeds five thousand dollars," or where the subject matter is a will or other testamentary instrument. It is indictable, with a maximum of 14 years.
• Section 380(1)(b) applies where the value does not exceed $5,000. The Crown chooses to proceed by indictment, with a maximum of two years, or summarily.

In everyday terms people call these "fraud over" and "fraud under."

Fraud over and fraud under at a glance

Criminal Code ss. 380, 535, 536, 553, 730, 742.1, 787; Criminal Records Act s. 4. Current to the laws-lois consolidation of 30 September 2026.

How is the value of a fraud counted?

The test in the Code is "the value of the subject-matter of the offence." That figure is part of the allegation, and the defence can challenge it like any other part of the Crown's case. In practice the value is often disputed: how much of a sum was actually obtained dishonestly, and whether some of the transactions were legitimate.

How the Crown frames the charges matters too. A series of transactions can be charged as one count of fraud over $5,000 or as several smaller counts. For the $1 million minimum in s. 380(1.1), Parliament chose the words "the total value of the subject-matter of the offences," so separate counts are added together for that purpose. This is one reason a forensic review of the numbers early in a case can change its whole direction.

Can you go to jail for fraud over $5,000?

Yes. It carries a maximum of 14 years, and in large or breach-of-trust frauds a custodial sentence is a realistic outcome. But jail is not automatic, and three rules shape what is possible:

• No discharge. A discharge under s. 730 is not available for an offence punishable by 14 years. A finding of guilt for fraud over $5,000 means a conviction.
• A conditional sentence is still possible. If the court imposes less than two years, it can order the sentence served in the community under s. 742.1, provided that would not endanger the community and fits the principles of sentencing. The July 2026 amendments to s. 742.1 added further sexual offences to the excluded list; fraud is not on it.
• The $1 million minimum. If the Crown proceeds by indictment and the total value exceeds $1 million, the court must impose at least two years of imprisonment. A conditional sentence is then unavailable.

Within those limits, the sentence turns on the facts and the person. Section 380.1 lists aggravating factors the court must consider in fraud cases, including a significant scale or degree of planning, a large number of victims, a significant impact on victims given their age, health or finances, and concealing or destroying records. Abuse of a position of trust is aggravating under the general sentencing rules. On the other side are the mitigating factors a defence lawyer builds a sentencing hearing around: a guilty plea, a clean record, repayment, remorse and the person's circumstances.

Can you go to jail for fraud under $5,000?

It is possible, but for a first offence with no aggravating features it is much less likely than for fraud over. The maximum is two years if the Crown proceeds by indictment, or two years less a day and a fine of up to $5,000 if it proceeds summarily (s. 787). There is no minimum sentence, so the full range is open: an absolute or conditional discharge, a suspended sentence with probation, a fine, a conditional sentence, or jail.

The discharge is the outcome most people want, because it is a finding of guilt without a conviction. Under s. 6.1 of the Criminal Records Act, a federal record of an absolute discharge cannot be disclosed after one year, or of a conditional discharge after three years, without the Minister's approval, and the RCMP must remove it from the national police database at that point. Whether a discharge is realistic depends on the amount, whether there was a breach of trust, whether the money has been repaid, and the person's background.

One timing rule is worth knowing. A summary proceeding must be started within 12 months of the events unless both sides agree (s. 786(2)). If more time has passed, the Crown can proceed on fraud under $5,000 only by indictment.

Which court will hear the case?

Fraud of $5,000 or less is within the absolute jurisdiction of the Ontario Court of Justice under s. 553, whichever way the Crown proceeds. A provincial court judge hears the trial, without a jury and without a preliminary inquiry.

Fraud over $5,000 carries a 14-year maximum, so under s. 536(2) the accused elects the mode of trial: a provincial court judge, a Superior Court judge alone, or a Superior Court judge and jury. An accused who elects the Superior Court can request a preliminary inquiry, which s. 535 now limits to offences punishable by 14 years or more. The election is a strategic decision. A document-heavy case may suit a judge alone; a case that turns on whether ordinary people would see the conduct as dishonest may suit a jury.

What happens to the money?

On either charge, the sentencing court must consider ordering restitution to the victims (s. 737.1). An inability to pay does not prevent the order, and an unpaid order can be filed and enforced as a civil judgment. A court can also prohibit a person found guilty of fraud from any job or volunteer role involving authority over other people's money or property, for any period it considers appropriate (s. 380.2).

Restitution, prohibition orders and the related identity theft and credit card offences are covered in more detail on our page for anyone facing a fraud charge in Toronto.

What should you do if you are charged?

• Do not explain yourself to police, your employer, your bank or an insurer's investigator before you have legal advice. Statements in internal investigations are often handed to police.
• Keep every record you have. Do not delete, alter or move documents or messages.
• Follow your release conditions exactly, including any limits on contact or on financial dealings.
• Do not repay or offer to repay anyone without advice. Repayment can help, but how and when it is done matters.
• If you are not a Canadian citizen, say so at the start. Fraud over $5,000 has a 14-year maximum, which meets the serious criminality test in s. 36 of the Immigration and Refugee Protection Act for permanent residents and foreign nationals.

Robb MacDonald has practised criminal defence for more than 20 years and brings a background in finance to fraud files. He earned his J.D. at Queen's University in 2006, was called to the Ontario bar in 2007, and trained under Edward Greenspan QC. If you or someone close to you has been charged with fraud, call (416) 315-1505, day or night. Consultations are free and confidential, and you can also book one online.

This article describes the law as of 21 October 2026. It is general information, not legal advice for a particular case.