Workplace Theft and Breach of Trust
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. . 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. , 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. . In the Firm’s S. G. , 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. . 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. . 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.
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.
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.
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.
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.
While there is no specific criminal offence for stealing from one’s employer, there are several different offences such an individual may be charged with. Those caught stealing from their employer may be charged with any of the following offences:
Consequences of Stealing from Work
Most commonly, those who are caught stealing from their employer will be charged with theft. The value of the items taken will determine whether the accused is charged with theft over $5,000 or theft under $5,000. Crown counsel will treat the employer-employee relationship as an aggravating factor in the case, due to the accused’s position of trust.
Theft is a hybrid offence meaning the Crown may elect to proceed summarily or by indictment depending on the nature and severity of the allegations. Where the allegations are serious, the Crown will often proceed by indictment. In all other cases, the Crown will proceed summarily. This election will determine, among other things, the maximum penalty that may be imposed on the accused should they be convicted. The maximum penalties for those who are convicted of theft range from two years less a day imprisonment to up to ten years’ imprisonment in the most serious cases.
Stealing from your employer is a very serious matter. Those who steal from their employer or from a client may be arrested and charged with theft or fraud. While there is no separate offence in the Criminal Code for stealing from or defrauding one’s employer, the court views this as an aggravating factor when determining sentence.
Those who are convicted of stealing from or defrauding their employer or a client will generally face increased penalties compared to offenders who stole from or defrauded someone unrelated to them.
This is because there is a breach of trust when stealing from one’s employer or client. The court views breaches of trust of this nature as aggravating, especially where an accused is alleged to have abused their position of authority within the company to commit the offence. This is illustrated in the following cases.
In the case of 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.
In the case of 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.
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.
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