Getting charged with theft or fraud for stealing from your employer or workplace

Getting charged with theft or fraud for stealing from your employer or workplace
(over and under $5000)

  • Employee theft charges are considered a serious breach of trust type offence that can result in jail and a criminal record

  • Stealing from an employer is a serious form of criminal theft in Canada that often results in penalties of prison and a criminal record upon conviction. As employees are considered to be in a position of trust towards their employer, violating this trust is viewed as far more serious than stealing from a third party (such as shoplifting).
  • Employment related theft charges are normally brought under the following provisions of the criminal code: 
    1. Theft under and over $5000 (Section 334 (b))
    2. Fraud under and over $5000 (Section 380 (1)(a) or (b))
    3. Possession of stolen property (Sections 354 - 359)

If you are convicted of stealing from your workplace, you will not only lose your job, you may also find yourself unemployable to future employers because of a criminal theft record.

Theft from retail store employers

  • Losses related to employee theft in retail stores (Winners, the Bay, Wal-Mart, etc.) often match or exceed amounts lost to third party shoplifters. Retail employees normally get charged with theft or fraud through the following factual scenarios:
    • Directly taking items without paying for them;
    • Taking cash, gift cards, coupons, promotional items, or other instruments of value;
    • Paying for items at a discounted rate that was not authorized by the employer;
    • Intentionally ringing in items to known 3rd parties (friends, family, etc.) improperly resulting in discounts (sometimes providing them with employee, senior, or other types of discounts);
    • Fraudulently taking and returning items (or providing them to third parties) for cash refunds or exchanges.
  • Ontario Crown Attorneys (prosecutors) view employment related retail theft much more seriously than standard shoplifting. In most cases of employee theft the Crown will look to convict the accused in a matter that involves them obtaining a criminal record.
  • They may also seek a jail term for the accused even if it is a first offence depending on what aggravating case factors are present (if any).
  • Aggravating factors in retail theft cases:
    1. A high dollar amount of store losses;
    2. The number of individuals times the theft or fraud occurred;
    3. The reason or intention of the accused for committing the theft;
    4. Whether the items were intended for sale to 3rd parties or for personal use;
    5. The nature and closeness of the employee’s relationship to the store. Are they a manager or supervisor, or a new employee? Their job description, and the amount of responsibility put in them by the store, is relevant;
    6. The employee’s past criminal police record
      • (including prior cautions, warnings, and formal charges not resulting in convictions);
    7. Other personal circumstances of the accused's background and history.
  • It is well established throughout all GTA courthouses that employer related theft is considered an aggravating "breach of trust" and thus far more serious than standard shoplifting charges. 
    • If there is an allegation that the accused is profiting or intending to profit from selling the items to 3rd parties, it is not unusual for the Crown to seek a jail term of 6 months or more. 
  • It generally takes longer for employees to be caught and charged with theft or fraud
  • Unlike a typical shoplifting case, where the accused is caught and charged while leaving the store, it often takes stores months (or even sometimes years) to discover employee retail theft. It may go unnoticed or attributed to third party shoplifting or errors until it is discovered as a result of annual audit and other financial investigation. 
  • This time delay between the theft and the charge is relevant for two key reasons: 
    1. It allows the employee to commit multiple acts before being caught (thus making the case even more serious);
    2. If it takes more than 6 months for the accused to be charged, the Criminal Code requires the Crown to elect to prosecute by way of a more serious indictment and not by summary conviction.

  • Summary vs. Indictable:

    • In employee theft cases the Crown may proceed by indictment which means potentially longer prison sentences, and problems with Canadian immigration and US travel.