What is Embezzlement, and How Does One Fight This Charge?
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1 month ago
The term “embezzlement” tends to make the news when the embezzlement involves large sums of money. Such as most recently in the Greater Toronto Area when a provincial government bureaucrat was charged with embezzling $11 million in COVID-19 relief funds. While the bureaucrat technically embezzled the funds, he was charged with fraud and breach of trust because Canada’s Criminal Code does not distinguish embezzlement as a specific crime. Instead, cases of embezzlement in Canada are typically addressed as a form of theft, though they can be charged as a form of fraud when extensive deception is involved, such as in the bureaucrat’s case.
This begs the question of what exactly embezzlement is according to the Criminal Code. And, because this is a criminal defence blog designed to educate those in the GTA about pertinent legal issues, it also raises the question of how one might defend against embezzlement-related charges. Read on:
How to Define Embezzlement
Because Canada’s Criminal Code does not define embezzlement (or even refer to the word), we’ll turn first to the Merriam-Webster dictionary’s definition, which refers to it as the noun form of the transitive verb “embezzle.” As defined, embezzle means “to appropriate (something, such as property entrusted to one’s care” fraudulently to one’s own use.” The commonly held understanding of embezzlement is that it primarily involves a person entrusted with property who steals it through deceitful means. Most instances of embezzlement tend to be carried out by employees who steal cash from their employers. The crime can be a one-time opportunistic crime, like when a retail employee steals $50 from the cash register, or an ongoing offence, such as when a bank employee periodically skims money from the bank’s holdings.
Embezzlement as Theft Rather than Fraud
As noted above, most people arrested for embezzlement are actually charged with theft, which is addressed under Section 322 of Canada’s Criminal Code with the following:
“Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
“(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
“(b) to pledge it or deposit it as security;
“(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
“(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.”
Theft is considered a hybrid offence because the Crown has the option to prosecute cases by indictment or as a summary conviction offence. Whether the theft was through embezzlement or not, the penalties upon conviction depend upon the value of the stolen property. Those convicted of stealing more than $5,000 can be subject to a maximum sentence of 10 years imprisonment when charged as an indictable offence. The maximum penalty is a six-month jail term and/or $5,000 fine when charged as a summary conviction offence. Theft under $5,000 carries a maximum sentence of two years imprisonment when charged as an indictable offence, six months in jail, and/or a $5,000 fine for a summary conviction offence.
There are no mandatory minimum penalties, and courts have a broad range of discretion in setting penalties. Few people convicted of theft under $5,000 as a first offence are sentenced to prison or jail, with most generally penalized with probation terms, fines, and restitution orders. Many people convicted of theft over $5,000 as a first offence also manage to receive relatively mild sentences. However, know that embezzlement will be considered an aggravating factor that typically leads to more severe penalties. This form of theft is considered aggravated because it involves an abuse of trust.
Your Need for a Criminal Defence Lawyer in Embezzlement Cases
Given the aggravated nature of embezzlement theft charges, you do not want to face the Ontario courts alone if charged with such. If you are arrested for embezzlement in the Greater Toronto Area, do not discuss the charges with the police until you have consulted with a competent criminal defence theft and fraud lawyer. Anything you say can be presented as evidence at trial and could compromise your ability to mount an effective defence.
Even if your embezzlement charges stem from a seemingly minor accusation of pilfering cash from your employer’s cash register, a conviction can result in fines, probation, jail time, and a criminal record. While most people charged with a criminal offence are primarily concerned with avoiding the penalties, the criminal record itself is an onerous penalty as it can negatively impact your employment, immigration status, and ability to travel.
How Your Lawyer Can Defend You Against the Charges
If you are arrested on embezzlement-related charges, an experienced criminal defence lawyer can help you navigate through the complexities of theft law. Your lawyer will examine all relevant details about the charges and the Crown’s evidence to strategize an effective defence designed to avoid a criminal conviction. Depending upon the Crown’s evidence, your lawyer may be able to get the criminal charges dismissed or withdrawn without going to trial. Or your lawyer may be able to navigate a plea deal with the Crown for reduced charges, lenient sentencing, and/or criminal record expungement via discharge.
Should none of these options prove viable, your lawyer might be forced to seek a dismissal or acquittal at trial. This may or may not prove challenging depending upon the evidence, as the onus is on the Crown to prove that the embezzlement actually happened, that it was intentional, and that the money or property was taken without permission or consent from the employer.
With these points in mind, your lawyer might argue that you lacked intention because you believed that you owned the subject property or that you believed that your employer had consented to your possession of it. In some cases, this can lead to a “he said-she said” scenario that may not provide the Crown with enough burden of proof to convict absent additional evidence.
Your lawyer may also be able to mount an effective defence by disputing the Crown’s evidence to raise reasonable doubts about its relevance to the alleged crime. If warranted, your lawyer may also raise Charter Rights issues and procedural mistakes in handling physical evidence to weaken the Crown’s case.
If ultimately convicted, a skilled criminal defence lawyer is adept at securing leniency during sentencing by minimizing aggravating factors and highlighting mitigating factors. They can also encourage the court to focus on rehabilitation over punishment, which can lead to further leniency in sentencing.
Turn to Mass Tsang for your Embezzlement Defence in Ontario
With more than 30 years of experience in the Greater Toronto Area, the criminal defence theft and fraud lawyers at Mass Tsang are highly skilled at mounting effective defences for those charged with embezzlement in Ontario. Mass Tsang lawyers have successfully defended thousands of Toronto-area embezzlement cases and have built a solid record of securing withdrawn charges, dismissals, acquittals, and other favourable outcomes for their clients.
If you or someone you know is facing embezzlement charges in the greater Toronto area, contact the expert lawyers at Mass Tsang for your free consultation.