• 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. J.P - North Vancouver Provincial Court

Charges: Assault; Breach of Undertaking (domestic).
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Johnson was able to persuade Crown counsel to stay all of the criminal charges and to allow our client to enter into a peace bond. No jail. No criminal record.

R. vs. F.K. - Vancouver Provincial Court

Charges: Dangerous Driving; Obstruct/Resist Arrest (Reduced to MVA charge).
Issue: Whether the Crown would be able to prove that our client had the necessary element of  intent for a criminal conviction.
Result: Mr. Mines was able to persuade Crown counsel to proceed on a lesser charge under the Motor Vehicle Act of speeding relative to the road conditions. Our client was sentenced to a driving prohibition. No criminal record.

R. vs. E.Z. - Vancouver Provincial Court

Charges: Assault with a Weapon; Possession of a Weapon for a Dangerous Purpose.
Issue: Whether there was a substantial likelihood of a criminal conviction.
Result: Mr. Mines was able to persuade Crown that there were flaws in the evidence and that a conviction was highly unlikely. No charges were approved. No criminal record.

R. vs. G.M.G. - Vancouver Provincial Court

Charges: Assault; Theft Under $5000.
Issue: Whether our client was acting to defend his spouse when he physically engaged with the complainant.
Result: Mr. Mines was able to provide further evidence to Crown counsel which persuaded Crown that there was no substantial likelihood of a conviction. Complete stay of proceedings. No criminal record.

R. vs. B.M. - New Westminster Provincial Court

Charge: Sexual Assault.
Issue: Whether there was merit in moving forward with the prosecution.
Result: Mr. Johnson was able to provide information to Crown counsel that led to Crown concluding there was no substantial likelihood of a conviction. Stay of proceedings. No jail. No criminal record.

R. vs. D.M. - Burnaby RCMP Investigation

Charges: Sexual Interference; Invitation to Sexual Touching; Assault.
Issue: Whether the evidence would lead to charges being approved.
Result: Mr. Mines was able to guide our client through the police investigation and to ultimately persuade the investigating officer that the evidence of the complaint was not reliable. No criminal charges were forwarded to Crown counsel.

R. vs. S.A. - Vancouver Provincial Court

Charge: Assault Causing Bodily Harm (Reduced to Peace Bond).
Issue: After directing our client through a course of self rehabilitation, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to stay the criminal charge upon our client being placed on a peace bond. No criminal record.

R. vs. S.K. - North Vancouver Provincial Court

Charge: Driving while Prohibited.
Issue: Whether our client would be sentenced to the mandatory minimum 12 month driving prohibition.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser charge of driving without a valid drivers license. Our client was sentenced to a fine. No driving prohibition.

R. v. P.Z. - North Vancouver RCMP Investigation

Charges: Sexual Interference; Invitation to Sexual Touching; Assault.
Issue: Whether the evidence would lead to charges being approved.
Result: Mr. Mines was able to guide our client through the police investigation and to ultimately persuade the investigating officer that the evidence of the complaint was not reliable. No criminal charges were approved.

R. vs. N.D. - Port Coquitlam Provincial Court

Charges: Invitation to Sexual Touching (x2).
Issues: To what extent the court would consider our client's remorse and rehabilitation when passing sentence.
Result: Notwithstanding that our client was in a position of trust and the Crown had originally sought a sentence of 12 months jail, Mr. Mines was able to persuade Crown counsel and the Court that the appropriate sentence was 90 days, to be served on weekends.

R. vs. R.C. - Vancouver Provincial Court

Charges: Assault.
Issue: Whether there was a substantial likelihood of conviction in this case.
Result: Mr. Johnson was able to provide information to Crown counsel which resulted in Crown entering a complete stay of proceedings just prior to the trial date. No criminal record.

R. vs. K.A. - Surrey Provincial Court

Charges: Assault; Breach of Release Order.
Issue: Whether it was in the public interest to proceed with the criminal charges.
Result: Mr. Mines was able to persuade Crown counsel to proceed by way of a Peace Bond and to enter a stay of proceedings on the criminal charges. 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.