Sentencing for a Breach of Trust Theft
Suppose someone is working at a retailer and is caught taking small sums of money (let’s say under $100) from the cash register, or perhaps in concert with another individual purposely neglect to scan items that are meant to be “purchased” by the other individual. Given the low-level nature of these thefts, at first glance such cases seem like perfect candidates for a diversion program. The accused person would be able to take responsibility for their actions and be given a chance to rehabilitate themselves without a criminal record. The reality is these examples, which are seen on a regular basis in the courts, are rarely candidates for diversion. Not only that, but a sentence after a finding of guilt may be harsher than had the theft not been from an employer. This is because they involve a breach of the trust that the employee has been given by their employer, a statutorily aggravating feature. The Criminal Code states:
718.2 (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
Why is a theft by an employee treated more seriously than a theft by an individual who, say, walks into a store and takes merchandise? Why did Parliament decide to codify this aggravating feature? The best answer I could come up with is that, in order for an organization to function, they have to place an element of trust in their staff. There should not be this expectations to guard against employee theft. When such theft does happen, therefore, it is viewed as being more serious than those committed by members of the public. Additionally, there is often an element of planning or foresight in breach of trust thefts, although similar planning may also exist when it is committed by a member of the public.
The Crown often takes the position that the starting point for a breach of trust theft is custody, a position which can then be varied based on the circumstances of the offence and the offender. Depending on the nature and value of the theft, however, there are many cases where custody can be avoided. For a first-offender charged with a low-level breach of trust theft, and who makes full restitution, a conditional discharge is often within the range of possibility and is a sentence I have seen for my clients in the past. Higher-level thefts, in both value and sophistication, may result in a conditional sentence or a jail sentence in a custodial facility.
An example of a case where a conditional discharge was granted is R v. Saleem,  O.J. No. 5606. The facts were set out in the judgment released by Justice S.D. Brown:
2 Information on the plea indicates that on November 23rd, 2008, the manager of the store discovered that merchandise was missing, and surveillance revealed two incidents: One on November 23rd, wherein Mr. Saleem was observed stealing an iPod Touch from a shelf, he walked out of view of the camera and, then, concealed it, and, in fact, he took two units that day; the second was on November 29th at 10:44 a.m., he was, again, seen in the lock-up area, and got an item from a shelf and walked out of camera’s view. He had, again, taken another iPod. He, therefore, stole three iPods at $239.00 each, of value, from his employer, three X-Box games, valued, $59.99 each, and the total value of property taken from Staples was $906.97.
3 He was confronted by a loss-prevention officer on December 1st, 2008, and indicated, voluntarily, to them that he had begun stealing a few weeks prior to that; that he would put items under his shirt or in his socks, and, then, exit during his break. He said that he stole to make a few extra dollars by selling it. And his statement, his inculpatory statement, has been filed in these proceedings as Exhibit 1. He was subsequently arrested by the police.
Following a review of the accused’s circumstances and the law surrounding a breach of trust theft, His Honour held that a conditional discharge was the appropriate sentence:
23 However, balancing all of the conditions that I must in this case: The fact that this young man committed what is otherwise a totally out of character act that led to these charges, and that he has done, up front, a significant amount of community service, the fact that he is presently enrolled in school, that he shows his remorse and his acceptance of responsibility, that he has a very positive pre-sentence report; all of these factors lead me to the conclusion that to grant a conditional discharge in this case would not be contrary to the public interest.
24 The fact is that it would certainly be in Mr. Saleem’s interest, but it would not be contrary to the public interest, knowing that a reasonable member of the public, who found that Mr. Saleem was apprehended very quickly, that he has, as I indicated earlier, gone through over a year of exquisite agony waiting for this matter to conclude, that he has done a considerable amount of community service and he will be doing a significant amount more through my sentence. All of these consequences are something that I do not think that the community would not say is not a significant penalty to suffer in this case.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at firstname.lastname@example.org.