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Defend workplace theft

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Our Experience

Stealing from one’s employer is a very serious matter which can result in severe consequences for those who are caught and convicted. Those who are caught stealing from their place of employment will almost certainly be terminated. In addition, their employer may report them to the police and to the relevant professional regulatory body if the employee was a regulated professional. Theft from one’s employer is seen as particularly aggravating due to the position of trust employees hold. Click here for more information on the punishments for stealing from work.

In 2021, the Firm successfully defended an individual charged with theft over $5,000 and falsifying employee records in R. v. K.S. [2021]. The accused was charged after allegedly committing time theft by falsifying time records for close to $15,000.00. Police traced the IP address used to make changes to the time records and linked it to the accused. The case was further complicated by the fact that the accused was in the process of becoming a Canadian citizen. The Firm was ultimately able to secure a withdrawal of the charges after presenting evidence that the accused had in fact been completing work from home and by raising concerns with evidence presented by another staff member with a previous conviction for fraud.

The Firm has extensive experience defending employees charged with sophisticated internal financial crimes. In the Firm’s R. v. E.K. [2020], it secured a withdrawal of a $30,000.00 internal theft related to merchandise being allegedly stolen from a factory. The scheme was conducted by a manager and junior employee, including the family members of staff who were allegedly helping move the product. In 2018, the Firm stayed nine (9) charges of money laundering foreign proceeds of crime from the United States in an estimated $1,000,000.00 internal Gold Bullion fraud. Cash was allegedly being stolen from senior citizens and converted to Gold in its R. v. Z.U. [2018].

In the Firm’s S. G. [2020], it resolved a $53,423.00 USD internal fraud allegation from Roots Canada without a criminal record. The employee was allegedly creating forged documents to divert company money to fake companies. In July 2017, the Firm resolved an $18,500.00 cash theft from a CIBC bank employee on the job without a record, in its R. v. D.D. [2017]. In April, 2019, the Firm resolved a $170,000.00 combined civil and criminal internal employee fraud allegation without a criminal record in its R. v. O.I. [2019]. The employee was allegedly refunding false transactions to credit cards.

The Firm has also increasingly represented concerned employees during an internal theft investigation. Employees have contacted the Firm where they suspect they will soon be investigated to best prepare themselves and safeguard their legal interests. Unlike law enforcement, an employee actually has much less legal protection and rights with an internal loss prevention investigator. Anything said to corporate security will be documented and ultimately provided to police, should criminal charges be pursued. If an employee makes self-incriminating statements, signs any admissions or provide any evidence to their employer, it significantly decreases the ability of the defence lawyer to later combat criminal charges. Resigning, attempting to “get ahead” of things or running away also have negative implications because an adverse inference may be drawn.

Punishments for Theft Depend on the Value of Property

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In the Firm’s File No. 38****2, it discreetly defended an employee in 2020 under investigation for missing company property close to $10,000 in value. The Firm did not reveal itself to the employer and was able to guide the employee through the internal investigation with international corporate security without any criminal charges, including saving their employment. We were able to strategically help the employee answer appropriate questions while shielding them from potential liability associated with the investigation.

In the Firm’s File No. 28****2 it assisted an employee at the Rogers Centre with an internal theft investigation related to missing merchandise. The company was conducting an audit and reviewing video surveillance. The employee was not arrested and maintained his employment. The Firm had to prepare the employee for a workplace investigation related to the stolen merchandise. The employer was unaware the Firm was providing legal advice to the employee which can often be a powerful strategic choice. Companies can sometimes draw an adverse inference where the employee has counsel.

In the Firm’s File No. 58****1 it discreetly assisted a long standing employee related to a complex kick back scheme. The employee was interviewed multiple times, the company attempted to seize property and the investigation was ultimately resolved without any criminal charges. The Firm was able to protect the accused’s privacy interest in his personal property which was being sought by forensic accountants for analysis. By protecting the rights of the employee, the Firm was able to avoid potential criminal and civil liability. The employer did not care about any privacy interest in the data stored in electronic devices. By protecting those interests, the Firm was able to protect the employee.

How to Defend Theft Under $5000

In February 2021, the Firm defended a Canada Post employee alleged to have defrauded Sun Life $8000.00 in its Case No. 03****2. The matter was referred to Ottawa Police by Sun Life and the accused contacted for investigation. The Firm prepared the employee for interrogation over on three separate occasions. The Firm was able to challenge the alleged false claims and ultimately saved the accused’s employment after negotiations with national legal counsel, including avoiding criminal charges.

In 2021, the Firm defended a retail manger under investigation for an internal theft of company property in its File No. 52****9. The employee contacted the Firm immediately and prior to meeting with their employer. The Firm worked behind the employee anonymously during the investigation where the matter was ultimately resolved without reporting to law enforcement or any factual finding of internal theft. When an employee is being investigated early, they are vulnerable and will often be cornered by their employer into making an admission.  While there is no specific criminal offence for stealing from one’s employer, there are several different offences that an individual may be charged with. The breach of trust associated with workplace theft will also be an aggravating factor at sentencing.

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Frequently Asked Questions

What is Fraud at Work?

In certain instances where an employee is caught stealing, they may face charges of fraud. This typically occurs when the employee has taken deliberate steps to conceal their actions, resorting to deceit, falsehood, or other fraudulent methods. The extent of the fraud determines whether the employee is charged with fraud over $5,000 or fraud under $5,000.

Fraud is considered a hybrid offence, allowing the Crown the discretion to choose between summary conviction or indictment based on the gravity of the allegations. For severe cases, the Crown often opts for indictment, while summary conviction is pursued in other situations. This decision influences the maximum penalty that can be imposed upon conviction. The penalties for fraud convictions vary, ranging from imprisonment for two years less a day to as much as fourteen years in the most serious cases.

What is Time Theft at Work?

Time theft refers to a situation where an employee receives payment for hours they did not actually work. This deceptive practice can take various forms, such as manually altering work records to show unearned extra hours, taking unauthorized extended breaks, or handling personal tasks during work hours. While it predominantly concerns hourly employees, it can also apply to salaried individuals.

In Canada, time theft is considered a criminal offence and often leads to immediate termination of the employee. Offenders can be arrested and charged under section 322 of the Criminal Code. If the value of the stolen hours exceeds $5,000, the charge may be elevated to theft over $5,000; otherwise, it falls under theft under $5,000. Additionally, employees altering documents to falsely claim payment for unworked hours may face charges of falsifying employment records.

Upon conviction, individuals found guilty of theft or falsifying employment records could face incarceration, probation, or be required to make restitution payments for the stolen hours. If restitution is not mandated or if the employee remains uncharged, the employer has the option to pursue a civil lawsuit to recover the lost wages.

What is Possession of Proceeds Obtained by Crime at Work?

In certain situations, an employee caught stealing may face an additional charge of possession of proceeds obtained by crime, especially if law enforcement can recover the stolen items or proceeds from the theft in the employee’s possession.

Possession of property obtained by crime is considered a hybrid offence in legal terms. This means that the prosecution, represented by the Crown, can choose to proceed either summarily or by indictment based on the severity of the allegations. In serious cases, the Crown often opts for indictment, while summary proceedings are followed in less severe situations. This decision not only affects the legal process but also determines the maximum penalty upon conviction. For individuals convicted of possession of proceeds obtained by crime, the penalties can range from imprisonment for two years less a day to up to ten years’ imprisonment, particularly in the most severe cases.

Is the Court Process Different when Theft occurs in the Employee/Employer context?

When an employee steals from their employer and law enforcement becomes involved, the legal process can take a specific course influenced by the employer-employee relationship.

Police Involvement: Upon being alerted to a potential crime, the police exercise discretion in deciding whether to press charges and what charges to file depending on the legal grounds and the evidence. After assessing the situation and confirming a crime, they select appropriate charges and forward the case to the Crown’s office for evaluation.

Crown Screening: The Crown’s office reviews the case, considering factors like the value of stolen items. They decide whether to proceed summarily (for less severe cases) or by indictment (for significant offences). The Crown’s decision significantly impacts potential penalties upon conviction. It will usually impact the extent of jail time being sought.

Impact of Employer-Employee Relationship: The nature of theft within an employer-employee relationship influences case resolution. For minor offences, the Crown might approve diversion programs, enabling offenders to complete probation and conditions, leading to charge withdrawal and avoiding a criminal record. However, employees stealing from their employer may be ineligible for diversion due to the breach of trust involved.

Court Sentencing: In cases of conviction, the court views the employer-employee relationship as an aggravating factor, potentially leading to harsher sentences. This breach of trust is considered seriously by the court, often resulting in more severe penalties for the convicted employee.

Crown prosecutors have considerable discretion in such cases, allowing them to consider the unique dynamics of the employer-employee relationship when making decisions.

What if I Stole from my Employer and I am a Regulated Professional?

Regulated professionals such as doctors, lawyers, nurses, and accountants are held to exceptionally high ethical standards due to their influential roles and the trust they share with the public. When such professionals are caught stealing from their employer, the situation becomes complex due to the involvement of their governing regulatory body.

Typically, when a regulated professional is discovered stealing from their employer, they face termination, criminal charges, and a report to the relevant regulatory body. The regulatory body then initiates an investigation into the incident. If the body finds that the individual’s actions amount to misconduct, they can impose severe penalties. These may include suspension, imposing limitations or conditions on their practice, or revoking their professional license entirely. This disciplinary action not only affects the professional’s career but also upholds the integrity of the profession and safeguards the public’s trust.

Will a Conviction for Stealing from my Employer Affect other Aspects of my Life?

Being convicted of theft or fraud in an employment context can have far-reaching consequences beyond criminal and professional penalties. Individuals facing such convictions often encounter challenges in several aspects of their lives, including:

1. Employment: Upon being caught, individuals are typically terminated from their current employment. Moreover, having a criminal record can severely limit future employment opportunities. Many employers conduct criminal background checks before hiring, and individuals with a record of theft or fraud may find it difficult to secure gainful employment. Such convictions could also restrict their ability to work or volunteer with vulnerable populations.

2. Travel: Traveling internationally can become problematic for those with a criminal history. Several countries, especially the United States, may deny entry to individuals with even minor criminal records. This restriction can greatly limit the ability to travel, affecting personal and professional opportunities abroad.

3. Immigration: Convictions, even minor ones, can impact immigration status. Citizenship, Immigration, and Refugee Canada might delay or deny citizenship applications for individuals with a criminal offence on their record. This could lead to significant delays and complications in the immigration process.

In summary, a conviction for theft or fraud not only results in immediate employment termination and potential professional consequences but can also create barriers to future employment, travel restrictions, and complications in immigration proceedings. These consequences underscore the importance of understanding the long-term implications of criminal actions in an employment context.

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Punishments for Stealing From Work

R. v. Mathur, 2017 ONCA 403

The Ontario Court of Appeal upheld a 12-month prison sentence imposed on an individual convicted of one count of fraud over $5,000.00. The offender, an accountant and real estate broker, was charged after his client’s discovered he had been using their social insurance numbers and birth dates, without consent, to generate false tax returns. In total the offender received $35,321.00 using his client’s information.

The Court of Appeal upheld the 12-month jail sentence despite the offender’s age (65) and the fact that he had no prior criminal history, highlighting the seriousness of the breach of trust. The court reasoned that with a breach of trust of this nature, the primary sentencing objective is specific deterrence (deterring the offender from re-offending in the future), with rehabilitation being a secondary factor. This means that the court is more likely to impose a period of incarceration to ensure the individual offender is deterred from committing a similar act in the future.

R. v. Mohenu, 2019 ONCA 291

The Ontario Court of Appeal upheld a custodial sentence for a young offender convicted of two counts of fraud over $5,000.00. The offender was charged after her employer, a large retail store, discovered she had taken more than $30,000.00 from the company while working at the customer service desk.

After being convicted at trial, the offender appealed, arguing that a custodial sentence was improper given her age and the fact that she was a first-time offender. The court reasoned that given that the offence was not violent in nature, the primary sentencing objectives should be specific deterrence (deterring the offender from re-offending in the future) and rehabilitation.

The Ontario Court of Appeal agreed that the trial judge had erred in failing to place specific deterrence and rehabilitation at the forefront of the sentencing objectives when arriving at the sentence. In taking these factors into consideration, the Court of Appeal granted the appeal, varying the sentence from nine months imprisonment to 90-days to be served intermittently (on the weekends). The offender was ordered to pay $28,000.00 in restitution to the retailer.

The court reasoned that despite the offender being a youth at the time of the offences and having no prior criminal history, the breach of trust associated with stealing from one’s employer is so aggravating that it warrants a term of incarceration.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.