Penalties for Breach of Trust
R. v. Caravan, 2023 CanLII 98783
This Provincial Court of Newfoundland and Labrador case is an example of workplace fraud. As the bookkeeper for a small business, the offender altered several cheques that were intended for other recipients and directed them to her bank account. She managed to defraud her employer of over $19,000 until she was discovered after an audit was conducted by an accountant. She was given a four-month conditional sentence for this offence and was issued a restitution order.
When deciding on the appropriate sentence in each case, a court must look at more than the aggravating factor of an abuse of a relationship of trust. There are always other factors that increase or decrease the severity of an offence. Factors that decrease this severity are known as mitigating factors. The mitigating factors at play in this case included that it was the offender’s first criminal offence, and the fact that severe mental health issues – a gambling addiction – motivated this offence. In these circumstances, a lengthy prison sentence was inappropriate. Instead, given the offender posed little risk to others, she was permitted to serve her sentence within the community. This alternative form of punishment was thought to best serve the principles of sentencing.
R. v. Durant, 2021 ABPC 79
The Provincial Court of Alberta case of R. v. Durant concerned an employee who committed fraud using a debit card given to him for business purposes by his employer. The offender was a chef, and the card was meant to purchase supplies for his place of work. The fraud involved 112 transactions worth a total of just over $7,000. The offender was given a nine-month conditional sentence along with 12 months of probation.
The court considered several factors before arriving at a final sentencing decision. Among the most relevant was the abuse of a position of trust. But the court also had to consider that the offender’s misdeeds were motivated by a drug addiction. Furthermore, after being confronted by the victim, the offender paid back the money and voluntarily entered a rehabilitation program. This showed that the offender had already begun the self-reflection and improvement that his sentence would have been designed to achieve. As such, he earned a more lenient sentence. “Since then he has done everything necessary to contribute to his own recovery, and more importantly, to the recovery of others that he has sponsored. He has become a good person and a good employee. He has confronted his problem and conquered it. He has, in short, done all that society could ask of him.” [at para 31]
R. v. McCarthy, 2015 CanLII 7719 (NL SC)
This Supreme Court of Newfoundland and Labrador case is very similar to the one discussed above. Here, the offender was a town clerk, who eventually pled guilty to theft and fraud after it had been discovered that she had been altering receipts for amounts of money paid to the town and pocketing the difference, as well as issuing herself extra pay. The amount of money she took was totaled at over $21,500. The offender was given a 12-month conditional sentence, two years of probation, a restitution order for value of the offences, and a victim fine surcharge.
Despite the severity that is involved in defrauding municipal government, the offender was given a conditional sentence because she posed little risk to the community. The court noted that theft and fraud, especially in this context, require the offender to be in a position of trust. As a result of this case, it would therefore be highly unlikely that anyone would employ the offender in a similar position again. This means that she posed little risk of reoffence because she would likely not be able to regain anyone’s trust.