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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. 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.

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

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client succesfully completing the Alternative Measures Program. No criminal record.

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

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client successfully completing the Alternative Measures Program. No criminal record.

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

Charges: Fraud Over $5000; Theft Over $5000 (from employer).
Issues: Whether Crown counsel could prove the full amount of the alleged theft and whether our client would be sentenced to jail in this breach of trust case.
Result: Mr. Mines was able to persuade Crown counsel that they could only prove a $49,000 theft rather than the $75,000 allegation. After hearing Mr. Mines' submissions, the Court sentenced our client to an 18 month conditional sentence order. No jail.

R. vs. W.W. – North Vancouver Provincial Court

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. H.K. – Burnaby RCMP Investigation.

Charges: Mischief Under $5000.
Issue: Given the information Mr. Gauthier was able to provide to the RCMP investigator, whether it was in the public interest for police to forward charges to Crown counsel.
Result: Based on the significant collateral consequences that a criminal prosecution would bring to our client, Mr. Gauthier  persuaded police to not forward any criminal charge whatsoever.

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

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. K.J. – ICBC Fraud Investigation

Charges: Insurance (ICBC) Fraud.
Issue: Whether charges would be forwarded to Crown counsel.
Result: Mr. Gauthier  intervened with the ICBC investigator on our client's behalf and was able to clarify and explain the information that ICBC had flagged as being possibly fraudulent. The matter was resolved with no charges being forwarded to Crown counsel. No prosecution; no criminal record.

R. vs. M.H. – Employee Fraud Investigation

Charges: Theft from Employer.
Issue: Whether the complainant would proceed with a criminal complaint when they discovered $65,000 in fraudulent transactions purportedly committed by our client.
Result: Mr. Johnson was able to successfully negotiate a civil settlement on our client's behalf. No police investigation; no charges; no criminal record.

R. vs. A.C. – 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 proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings upon our client completing the Alternative Measures Program. No criminal Record.

R. vs. N.A. – Vancouver Traffic Court

Charges: Speeding (MVA).
Issue: Whether the police officer could prove that our client was speeding, and whether it was in the public interest to proceed with the trial.
Result: Mr. Gauthier was able to provide information to the police investigator that led to the officer withdrawing the violation ticket prior to the trial. The lack of this conviction prevented our client from a significant driving prohibition.

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

Charges: Aggravated assault; assault with a weapon.,br> Issue: Given the information Mr. Johnson was able to provide to Crown counsel, whether it was appropriate to contnue with the prosecution on the approved charges.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of assault causing bodily harm. After hearing Mr. Johnson's submissions on our client's behalf, the trail judge sentenced our client to a suspended sentence with 24 months probation. Our client was able to avoid a lengthy jail sentence.

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.