By Stacey Purser, Founder, Purser Law · Edmonton, Alberta | Last reviewed: October 2026
The charge sheet says fraud over $5,000, or fraud under $5,000, and the number can feel like the least important part. It is not. The dollar figure does not change what fraud is, but it changes almost everything that follows: how the case can be prosecuted, the maximum sentence, whether a discharge is possible, which court hears the case and, for anyone who is not a Canadian citizen, whether a conviction can affect their status in the country.
The short answer: Fraud under and fraud over $5,000 are the same offence with two different tracks. Fraud under $5,000 can be prosecuted summarily, is decided by a provincial court judge, and leaves a discharge on the table. Fraud over $5,000 is always an indictable offence, carries a 14-year maximum, and rules out a discharge entirely.
| Fraud under $5,000 | Fraud over $5,000 | |
| Criminal Code | s. 380(1)(b) | s. 380(1)(a) |
| Type of offence | Hybrid: Crown chooses summary or indictment | Straight indictable |
| Maximum sentence | 2 years (indictment); 2 years less a day and/or a fine (summary) | 14 years |
| Discharge available? | Yes | No |
| Who decides the case | Alberta Court of Justice judge; no election, no jury | Accused elects: Court of Justice judge, King’s Bench judge alone, or judge and jury |
| Immigration impact (permanent residents) | Serious criminality only if more than 6 months’ imprisonment is imposed | Serious criminality regardless of sentence |
What the Crown Has to Prove in Either Case
Section 380 of the Criminal Code 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. The Supreme Court of Canada set out the elements in R v Théroux, [1993] 2 SCR 5. The prohibited act is a dishonest act, meaning a deceit, a falsehood or some other means that reasonable people would consider dishonest, that causes a deprivation. The deprivation need not be an actual loss; putting someone’s money or property at risk is enough. The mental element is knowledge of the dishonest act and knowledge that it could cause a deprivation, or recklessness about whether it would.
Two consequences surprise people. First, you do not need to have intended to hurt anyone. A person who honestly meant to pay the money back can still be guilty if they knew their conduct put someone else’s money at risk. Second, value is not part of the basic definition of fraud; it decides which version of the offence you face. The Crown must still prove it beyond a reasonable doubt, and if it cannot prove the value was over $5,000, the court can only convict of the under-$5,000 offence.
Fraud Over $5,000
Where the value of the subject matter exceeds $5,000, or the subject matter is a testamentary instrument such as a will, section 380(1)(a) makes the offence straight indictable, with a maximum sentence of 14 years. There is no summary option, which has three practical consequences.
First, because the maximum is 14 years, section 730 of the Criminal Code rules out an absolute or conditional discharge. A finding of guilt is a conviction. Second, as an indictable offence, the accused has the right to elect how they are tried: by a judge of the Alberta Court of Justice, by a judge of the Court of King’s Bench alone, or by a judge and jury. That election is a strategic decision worth discussing carefully. Third, where the total value of the frauds a person is convicted of on indictment exceeds $1 million, section 380(1.1) imposes a mandatory minimum of two years’ imprisonment. That minimum has faced Charter challenges in some cases, so its current status should be checked when it is in play.
Fraud Under $5,000
Where the value does not exceed $5,000, section 380(1)(b) makes fraud a hybrid offence. The Crown chooses whether to proceed summarily or by indictment, usually early in the case. On indictment the maximum is two years. On summary conviction the general maximum applies: two years less a day, a fine of up to $5,000, or both.
Because the maximum is well under 14 years, a discharge is available. A judge can find the accused guilty without entering a conviction where that is in the person’s best interests and not contrary to the public interest. For a first offence with restitution made, that is often the realistic goal. Whichever way the Crown proceeds, fraud under $5,000 falls within the absolute jurisdiction of the provincial court, so it is tried by a judge of the Alberta Court of Justice, with no election and no jury.
How the Value Is Measured, and Why It Is Argued About
The line is drawn at the value of the subject matter of the offence. A series of transactions can be charged as one count covering the whole course of conduct or as several smaller counts, and that charging decision can be the difference between a hybrid charge and a straight indictable one. The Crown’s valuation is an allegation like any other. Disputes often involve whether amounts were actually obtained or only attempted, whether repayments or legitimate transactions were wrongly included, and how property or services should be valued.
What Sentencing Looks Like
Beyond the maximums, section 380.1 directs the court to treat certain circumstances as aggravating, including a value over $1 million, a significant impact on the victims given their circumstances, a large number of victims, an offender who took advantage of the high regard in which they were held in the community, and conduct that was complex or sustained. Abuse of a position of trust is a separate aggravating factor under the general sentencing principles.
Restitution is central to almost every fraud sentencing, and the court is required to consider making a restitution order. Under section 380.2, the court can also prohibit an offender from employment or volunteer work that involves authority over other people’s money or property, for a period it sets.
A conditional sentence served in the community is possible for fraud where the appropriate sentence is under two years and no mandatory minimum applies, and jail is far from automatic in an under-$5,000 case. In a large fraud over $5,000, particularly one involving a breach of trust, Alberta courts have generally treated a real jail sentence as the starting point.
Immigration and Employment Consequences
For anyone who is not a Canadian citizen, the maximum sentence attached to the charge can matter more than the sentence actually imposed. Under section 36 of the Immigration and Refugee Protection Act, a permanent resident convicted of an offence punishable by at least 10 years is inadmissible for serious criminality, regardless of the sentence. Because fraud over $5,000 carries a 14-year maximum, a conviction falls into that category.
For a permanent resident, fraud under $5,000 does not carry that automatic consequence. It becomes serious criminality only if a term of imprisonment of more than six months is imposed, and the Supreme Court of Canada has held that a conditional sentence does not count as a term of imprisonment for this purpose. For a temporary resident or other foreign national, the rule is harsher: a hybrid offence is treated as indictable for immigration purposes even when the Crown proceeds summarily, so any fraud conviction can make the person inadmissible.
A discharge is not a conviction for immigration purposes, which is one reason its availability matters so much. Anyone without citizenship should raise their status with their lawyer at the first meeting, not after a plea, and may need advice from an immigration lawyer as well.
For everyone, a fraud conviction is a conviction for dishonesty, the category employers, professional regulators and licensing bodies are least willing to overlook. That is a reason to treat a fraud charge at any dollar value with the seriousness its long-term consequences deserve. For anyone facing fraud charges in Edmonton, the valuation, the Crown’s election and the availability of a discharge are usually the first three issues to review with counsel. This overview of the duties of a defence lawyer explains what that relationship involves.
Frequently Asked Questions
If I pay the money back, will the charge go away?
Not automatically. Repayment does not undo the offence, because the deprivation occurred when the risk was created. Restitution matters a great deal at sentencing, and in some under-$5,000 cases it supports a resolution short of a conviction, such as a discharge or, in some cases, alternative measures. It is worth doing, and worth doing through your lawyer rather than by contacting the complainant directly.
Is fraud under $5,000 a criminal record?
A conviction is. A discharge is not a conviction, but under the Criminal Records Act, the record of a discharge is kept on the national police database for one year after an absolute discharge and three years after a conditional discharge before it is removed.
What is the difference between theft and fraud?
Theft is taking property without consent. Fraud is obtaining it through dishonesty, often where the victim hands it over believing something untrue. The two are charged under different sections, often together, and the $5,000 line exists in both.
Disclaimer
This article provides general information about fraud charges under Canada’s Criminal Code and is not legal advice. Reading it does not create a lawyer-client relationship. Outcomes depend on the facts of each case, and immigration consequences can be complex. Anyone charged with an offence should consult a criminal defence lawyer, and non-citizens should also seek immigration advice.
