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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. v. S.C. – Vancouver Police Investigation

Charge: Assault.
Issue: Whether there was credible evidence that would meet the charge approval standard.
Result: Mr. Gauthier provided information to the investigating officer that led the investigator to conclude that our client was not chargeable with a criminal offence. No charge approved. No criminal record.

R. vs. C.K. – Richmond Provincial Court

Charges: Assault; Forcible Confinement (domestic).
Issue: Given the rehabilitative steps we were able to guide our through, whether it was in the public interest for our client to be sentenced to a criminal record.
Result: Mr. Gauthier was able to persuade Crown to proceed only on the assault charge and, after hearing Mr. Gauthier's submissions, the Court granted our client a conditional discharge. No criminal conviction.

R.M. vs. Superintendent of Motor Vehicles

Charge: 90 Day Immediate Roadside prohibition.
Issue: Whether the police report established, on balance, that our client had refused to provide a breath sample during a roadside impaired driving investigation.
Result: The adjudicator agreed with Mr. Mines' submissions that our client's evidence was more reliable than the evidence set out in the Police Report to the Superintendent. The 90 day driving prohibition was overturned and our client was ruled eligible to resume driving.

R. vs. E.W. – Fort Nelson Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a criminal conviction.
Result: Upon reviewing the allegations, Mr. Mines made representations to Crown counsel resulting in Crown agreeing that there was no reasonable prospect of convicting our client. No charges were approved. No criminal record.

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

Charges: Assault Peace Officer; Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to  persuade Crown counsel to allow our client into the Alternative Measures Program and to enter a stay of proceedings on both charges upon our client completing the program. No criminal record.

R. vs. R.S. – Richmond Provincial Court

Charge: Breach of Probation (from weapons charge).
Issue: Whether there was a public interest in proceeding with the prosecution of our client who had failed to complete a course of court ordered counselling.
Result: Mr. Gauthier was able to steer our client through an equivalent course of counselling. Upon completion, Crown counsel stayed the proceedings. No criminal record.

R. vs. S.P. – Vancouver Provincial Court

Charge: Mischief Causing Danger to Life.
Issue: Given the medical evidence Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

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

Charges: Breaking & Entering; Unlawful Confinement; Assault.
Issue: Whether it was in the public interest for the prosecution to continue against our client, a U.S. citizen who was in Canada on a visitor's visa.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on all charges upon our client agreeing to a Deportation Order. No criminal record.

R. vs. P.N. – Surrey Provincial Court

Charge: Dangerous Driving Causing Death. Issue: Whether Crown could prove that our client had the necessary intent to prove that she was guilty of the criminal charge. Result: Mr. Mines was able to persuade Crown counsel to proceed under the Motor Vehicle Act rather than the Criminal Code. After hearing Mr. Mines'  submissions, the Court sentenced our client to 60 days to be served on weekends. The Crown had originally sought a sentence in the range of 2 years.

R. vs. L.A. – New Westminster Provincial Court

Charge: Breach of Probation (from domestic assault charge).
Issue: Whether it was in the public interest to prosecute our client for failing to report and complete counselling.
Result: Mr. Gauthier was able to guide our client back onto an alternative course of rehabilitation and persuaded Crown counsel to enter a stay of proceedings. No criminal conviction.

R. vs. M.K. – Richmond Provincial Court

Charges: Uttering Threats; Extortion.
Issue: Given the age of the charges and the rehabilitative steps our client had taken, whether a jail sentence was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to seek a non custodial sentence. After hearing Mr. Mines' submissions, the Court granted our client a suspended sentence and placed him on probation for 16 months. No jail.

R. vs. K.A. – Western Communities Provincial Court

Charge: Assault (domestic).
Issues: Given the information we provided to Crown counsel regarding the complainant's past unlawful behaviour toward our client, whether there was a substantial likelihood of a conviction.
Result: As a result of the information we provided, Crown counsel withdrew the charge. No further bail restrictions. 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.