• Vancouver at night

Employee Theft

The Charge

People accused of stealing from their employer are generally charged with theft or fraud offences pursuant to s. 322 or s. 380 of the Criminal Code. The offence is either for an amount over $5000 or under $5000. Theft from an employer is a very serious offence because it involves a breach of trust, which under s. 718 of the Code, is deemed to be an “aggravating circumstance.” A conviction for employee theft can have extremely serious consequences. Where the amount is in excess of $5000, the Crown will generally seek a jail sentence. Due to some relatively recent amendments to the Criminal Code, it is not possible for a court to impose a conditional sentence (house arrest) for a theft or fraud over $5000 offence. Because people charged with employee theft face the very real possibility of a jail sentence, it is imperative that they seek the assistance of experienced defence counsel as soon as possible.

The Investigation

Every employee theft case is different, but in the majority of cases, the scenario goes something like this:

Our client is at work and is abruptly escorted by a manager or security officer into a meeting room. There, they are confronted with an accusation that they have been stealing or otherwise misappropriating company property or funds. Because this is not yet a police investigation, the employee is not usually advised of their rights under the Charter to remain silent or to immediately be allowed to call a lawyer. It is certainly not uncommon for people in this situation to make incriminating comments. Typically, the employee is fired from their position and told that police will be contacted and the investigation will continue. It is our experience that the employer does not yet understand the scope of their loss and will therefore try hard to obtain a confession and an agreement to repay the funds.

A person facing an accusation of stealing from their employer usually faces pressure of both a criminal charge as well as a civil action taken by the employer who wants to recover their loss. Where the offence is theft or fraud over $5000 there is a very real prospect of jail. It is therefore certainly very prudent to obtain advice from a lawyer who is experienced in defending these types of charges.

Recent Successes

R. vs. R.C. – Surrey Provincial Court

Charge: Criminal Harassment; Breach of a recognizance.
Issue: Whether it was appropriate to resolve this domestic harassment by ending the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to stay the criminal charges upon. our client entering into a Peace Bond for a period of 12 months. No criminal record.

R. vs. R.N. – RCMP Investigation

Charge: Possession of child pornography.
Issue: Whether police would be able to prove that our client was the only person that had access to the IP address on which the unlawful material was downloaded.
Result: Mr. Mines provided information to the police investigator that led the investigator to close the file with no charges recommended against our client. No jail. No criminal record.

R. vs. D. K. – Vancouver Provincial Court

Charges: Assault; Uttering Threats.
Issue: Whether it was appropriate for the court to enter a conviction.
Result: Mr. Gauthier was able to steer our client through a course of rehabilitation and was able to persuade Crown counsel and the Court to grant our client a conditional discharge.  No criminal conviction.

R. vs. T. F. – Surrey Provincial Court

Charge: Breach of Probation (no contact).
Issue: Whether the Crown could prove that our client intended to breach the "no contact" order that he was subject to.
Result: Mr. Mines was able to persuade Crown counsel that our client bumped into the complainant accidentally. Crown counsel entered a stay of proceedings, bringing the matter to an end. No criminal record.

R. vs. T.X. – Insurance Fraud Investigation.

Charge: Assault (domestic).
Issue: In light of the rehabilitative steps our client completed, whether there was a public interest in proceeding with this child discipline/assault case.
Result: Mr. Mines was able to rely on the extraordinary circumstances of the case and our client's commitment to ongoing family counselling. He was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. A.M. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: In light of the rehabilitative steps our client completed, whether there was a public interest in proceeding with this child discipline/assault case.
Result: Mr. Mines was able to rely on the extraordinary circumstances of the case and our client's commitment to ongoing family counselling. He was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. S.L. – ICBC Investigation

Charges: Failing to remain at the scene of an accident.
Issue: Whether our client was obligated to provide a possibly incriminating  statement to the adjuster that could have led to criminal charges and a loss of  insurance coverage.
Result:  Mr. Mines was able to provide the required information to ICBC on our client's behalf. No charges were  recommended. No loss of insurance coverage.

R. vs. R. L. – New Westminster Supreme Court (jury).

Charge: Sexual Assault.
Issue: The credibility and reliability of the complainant and  our client who both testified in this historic sexual assault case.
Result: After  9 hours of deliberations, the jury was deadlocked and could not reach an unanimous decision. No conviction. The trial judge remitted the matter back to court to set a new trial.

R. vs. S.M.A. – Vancouver Provincial Court

Charge: Dangerous Driving Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of a criminal conviction and whether it was in the public interest to proceed with a criminal charge.
Result: Mr. Johnson was able to persuade Crown counsel to proceed under the Motor Vehicle Act rather than the Criminal Code. After gearing Mr. Johnson's submissions, the Court sentenced our client to a $100 fine and a 3 year driving prohibition. No criminal record. No jail.

R. vs. S.G. – Coquitlam RCMP Investigation

Charge: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigating RCMP member to not forward criminal charges after we settled the matter civilly on our client's behalf. No criminal record.

R. v. J.D. – Richmond Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr.Johnson was able to persuade Crown counsel to refer our client to the Alternative Measures Program and to enter a stay of proceedings. No criminal record.  

R. vs. C.L. – Civil Fraud Investigation

Charge: Fraud/Theft from employer.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson was able to negotiate repayment on our client's behalf and obtained a civil release from the employer. No charges were forwarded to Crown counsel. No criminal record.

The Defence

We are always pleased when clients contact us immediately after being investigated for employee theft. This is because we can offer these clients the very best potential outcome – the chance of no charges being approved at all. In our many years of defending employee theft charges, we have learned that many employers are more interested in recovering their losses through civil means than they are in pursuing criminal charges. In these cases, and even in cases that have already gone to police and Crown has approved charges, our goal is to obtain a civil settlement where appropriate to do so. This entails our client repaying the employer on the employer’s promise to provide a full release from further civil liability. In many cases, civil compensation is sufficient and criminal charges are not pursued. In cases that do proceed, restitution will be considered a mitigating factor on sentencing.

In cases where Crown has approved employee theft charges, we have been successful in obtaining non-custodial sentences for our clients. For theft/fraud under $5000 cases, we have obtained conditional discharges for several of our clients. Even in theft/fraud over $5000 cases, we have obtained suspended sentences (probation) and conditional sentence orders, by persuading Crown to charge the offence as a series of theft under $5000 charges rather than a single count of theft over $5000.

Of course in some cases, in the face of strong Crown evidence, we have no alternative but to go to trial to defend our client. Often, employee theft cases are complex matters with regard to the laws of evidence. We are well versed in the various technical rules of evidence as set out in the Canada Evidence Act. These rules include various provisions that the Crown must comply with when they want to introduce business records, banking records, or other documents into the trial record. Our experience allows us to develop arguments at trial which are aimed at protecting our client’s rights to have a fair trial as guaranteed by the Charter.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.