Criminal breach of trust usually involves employee theft

By Matt Deshaye

A criminal breach of trust occurs when someone abuses a position of authority for self-benefit and against the interests of the person to whom they owe the duty of trust. This charge is most commonly laid where an employee steals from their employer.

Depending on the circumstances, they can also be charged under other federal and provincial statutes such as the Income Tax Act, Customs Act and Bankruptcy and Insolvency Act. Anyone facing a criminal breach of trust charge should consult a lawyer, as the evidence the Crown prosecutor will present will be detailed and complex. Any defence against the charge will have to be equally comprehensive.

Examples of criminal breach of trust could include theft from an employer, fraud, the misuse of credit cards or the fraudulent use of computers.

Courts come down hard on offenders

The maximum prison sentence for criminal breach of trust is 14 years. In a case where a man’s breach of trust cost his victims $268,948.50, an Alberta Court of Appeal decision clarified why harsh sentences are given upon conviction. A lower court gave the man a conditional sentence of two years less a day. The higher court replaced that with a two-year jail term.

The appeal court noted that the original sentence “underemphasized the respondent's high moral culpability and the particular vulnerability of the victims in this type of financial crime by one in a position of trust … absent truly exceptional circumstances, the sentencing goals of deterrence and denunciation demand a sentence of imprisonment rather than the imposition of a conditional sentence for crimes of embezzlement or theft by an employee.”

Factors judges will consider

A 2021 Provincial Court of Alberta judgment explored factors judges consider when handing down sentences for breach of trust, under the heading “Responsibility of the offender.”

“When assessing moral blameworthiness, the Court should consider the unlawful act itself, the nature and quality of it, method used to commit it, degree of planning and deliberation, degree of risk posed, and the offender’s personal circumstances,” court documents read. “The greater the harm intended, or the greater the recklessness or wilful blindness about the harm, the greater the offender’s responsibility. That moral blameworthiness can be affected by things like the offender’s personal circumstances, mental capacity or motive for committing the crime.”

The judgment also explains why restitution is often part of the sentence.

“The paramount consideration must be the victim’s claims. In fact, where a breach of trust is involved, a restitution order may be made even where there does not appear to be any likelihood of repayment … economic predators should not be permitted to walk away in the future from any obligations to their victims, especially where the proceeds of the fraud remain unaccounted for in whole or in part. Otherwise, crime would pay.”

Another type of breach of trust

Public officials accused of fraud could face a different charge of breach of trust, which carries a maximum five-year sentence. A 2006 Supreme Court of Canada judgment gives examples of when public officials have committed a breach of trust. Circumstances include:

• if the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
• if the accused’s conduct represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; or
• if the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose.

“The crime of breach of trust by a public officer … is both ancient and important,” the judgment reads. “It gives concrete expression to the duty of holders of public office to use their offices for the public good. This duty lies at the heart of good governance. It is essential to retaining the confidence of the public in those who exercise state power.”

Call Dunn & Associates

If you are accused of improperly using an organization or firm’s money for your personal benefit or if you are a public official in a similar situation, you could be charged with breach of trust. A conviction is usually followed by incarceration and steep fines. Don’t face that charge alone. Book a free consultation and tell us the details of your case, so we can advise you on your best options.