Employee theft is sentenced harder than ordinary theft of the same amount. The reason is one line in the Criminal Code: abusing a position of trust is an aggravating factor. A cashier who takes $3,000 from the till starts from a worse position at sentencing than a stranger who takes $3,000 from the store.
Whether the allegation is under $5,000 or over it, the New Brunswick Crown files it as a breach of trust and argues it that way.
This guide covers how the New Brunswick Public Prosecutions Branch handles these files, the bail conditions to expect, restitution, the Adult Alternative Measures Program, and the defences.
Employee Theft Is Charged Under Section 322 and Prosecuted as a Breach of Trust
Police, whether RCMP or a municipal force such as Saint John or Fredericton, lay the charge under Section 322 of the Criminal Code. The Crown’s approach is set by the New Brunswick Public Prosecutions Operational Manual, and it treats theft by an employee differently because the employer gave you access to the money or property as part of the job.
Theft Under $5,000 Versus Over $5,000
The $5,000 line is the most important number in Canadian property crime.
Under $5,000 is a hybrid offence. The Crown can proceed summarily or by indictment.
Over $5,000 is indictable only. The maximum is 10 years, and the Crown’s opening position is often jail.
Why Trust Changes the Outcome
Section 718.2 of the Criminal Code requires the court to treat abuse of a position of trust as aggravating. In practice, in New Brunswick, that removes a fine as a realistic outcome for most employee theft and moves the argument to discharge versus probation versus custody. Judges here see it as planned and deliberate, not a crime of opportunity.
Bail Conditions Cut You Off From the Workplace and May Require Disclosure to Employers
After arrest you are processed at the local detachment. Depending on the amount and the complexity, you are released on an undertaking or held for a bail hearing.
Typical Bail Conditions
Justices in New Brunswick focus on protecting the integrity of the administration of justice. Expect:
- No contact with your former employer or co-workers.
- No attendance within a set distance of the workplace.
- A requirement to tell any new employer about the pending charge.
- In some files, a ban on jobs that give you authority over money.
Restitution Before Sentencing Is the Strongest Mitigating Factor in an Employee Theft Case
Restitution is repayment of the stolen money or the value of the property. How and when you offer it has the largest effect on the outcome.
Restitution as Mitigation
The breach of trust is aggravating. Making the employer whole is mitigating. Full repayment before the sentencing hearing shows remorse, repairs the harm, and lowers the assessed risk of reoffending.
Having the money sitting in your lawyer’s trust account, ready to go, is often what moves a Crown from a jail position to a discharge or a referral to Alternative Measures.
Stand-Alone Orders Versus Probation Conditions
The court can order restitution two ways.
As a probation condition. Fail to pay during probation and you face a breach of probation charge, a separate offence.
As a stand-alone order under section 738. That is a court judgment. Unpaid, it can be filed in the Court of King’s Bench and enforced like any civil debt, including by garnishing wages or seizing assets.
AAMP Withdraws an Under-$5,000 Charge After Restitution and Community Service
For employee theft under $5,000, the first thing your lawyer explores is the Adult Alternative Measures Program. It is the diversion stream authorized by the Attorney General for people with no record whose offence is at the lower end.
How the Referral Works
The Crown must refer the file, usually at the first or second appearance in Provincial Court. You then meet an AAMP coordinator.
You accept responsibility for the conduct. It is not a guilty plea before a judge, but you admit what happened.
You complete the measures. For employee theft that nearly always means full restitution, and often 20 to 50 hours of community service with a non-profit in your community.
You meet the timeline, typically 3 to 6 months. Miss it and the file returns to the regular court stream.
Complete the program and the Crown stays or withdraws the charge. No criminal record, which for anyone who needs to work again is the outcome that matters.
Theft Over $5,000 Is Indictable Only, and the Crown Usually Seeks Jail
Above $5,000 the case is indictable only, and the New Brunswick Court of Appeal has said that for serious breaches of trust the governing sentencing goals are general deterrence and denunciation.
The Risk of Straight Jail
For employee theft over $5,000 the Crown’s starting position is usually custody. In this province that runs from 90 days in provincial jail to years in a federal penitentiary, depending on the amount and the sophistication.
Conditional Sentence Orders
The defence goal in these cases is a conditional sentence order, house arrest. You serve the sentence in the community under conditions such as:
- A curfew, often 24 hours a day for the first third.
- Counselling, for example for the gambling problem behind the theft.
- Community service.
- No alcohol or non-prescription drugs.
A CSO is barred for a serious personal injury offence and for offences with a maximum of 14 years or life. Most theft and fraud charges fall outside those bars, so a CSO is available and is argued for hard.
The Charge Also Ends Bonding, Invites a Civil Suit and Voids Notice Pay
The criminal case is one of several proceedings the charge starts.
Bonding
If your job requires you to be bonded, a theft charge, even one that ends in diversion, will usually make you unbondable. That closes banking, security and senior administrative work.
Civil Claims for Conversion
The employer does not have to wait for the criminal case. It can sue in the Court of King’s Bench for conversion or unjust enrichment. A favourable criminal resolution does not stop a civil judgment, and a civil judgment can reach your property and bank accounts.
Employment Standards and Termination
Under the New Brunswick Employment Standards Act, theft is just cause for dismissal. No notice, no pay in lieu. Employment Insurance is also likely to be refused, because the job was lost for misconduct.
A Defence Lawyer Works the Disclosure, the Crown, Your Statements and the Restitution
The Public Prosecutions Branch runs breach-of-trust files firmly and by the manual. An criminal defence lawyer works the file at four points:
- The disclosure. Holes in the employer’s accounting and in the police evidence.
- The Crown. Making the case for Alternative Measures or a non-custodial sentence.
- Your statements. Anything you said to loss prevention or the police has to have been voluntary.
- Restitution. Returning the money through trust, documented, before sentencing.
The Crown Decides AAMP Suitability on Amount, Degree of Trust and Record
The AAMP is the route most first offenders want, and the Crown does not offer it automatically.
What the Crown Weighs
The Crown decides whether the file is suitable. Amount, degree of trust, sophistication and any prior record all count. A large sum or a serious abuse of trust and the Crown may refuse. That is why negotiation has to start before the first appearance, not after the Crown has taken a position.
The steps are the same as above: Crown referral, admission of responsibility, an agreement covering restitution, community service or an apology letter, and withdrawal of the charge on completion.
Colour of Right, Accounting Doubt and Charter Breaches Are the Defences
A charge is not a conviction. Three defences come up most.
Colour of Right
Theft requires taking “fraudulently and without colour of right.” If you honestly believed you were entitled to the money, for example as repayment of expenses the employer owed you, that is a defence.
Accounting Errors and Reasonable Doubt
In a workplace with weak controls, what the employer calls theft can be bad bookkeeping or a loss prevention failure. If the Crown cannot prove where the money went, or that you were the one who took it, there is reasonable doubt.
Charter Breaches
A locker or a personal phone searched without a warrant, or an interview conducted before you could call a lawyer, can lead to exclusion of the evidence and, often, the end of the case.
New Brunswick Courts Sentence Breach of Trust for General Deterrence
New Brunswick judges put general deterrence first in breach-of-trust cases. The sentence is meant to be seen by other employees, and it can be harsher than the individual facts would otherwise justify.
An Employee Theft Charge in New Brunswick Is Shaped Before the First Court Date
Employee theft is treated as a breach of trust, which starts the sentencing range higher than for ordinary theft. Under or over $5,000, the best outcomes come from acting before the Crown fixes its position: get advice, put the restitution in trust, and ask for Alternative Measures.
- Act early. The outcome is usually shaped before the first court date.
- Use restitution through counsel. It is the strongest mitigating factor available.
- Aim for diversion or a discharge. Either keeps the charge off your permanent record.
FAQ
Can I Go to Jail for a First-Time Employee Theft Charge in NB?
Yes. Because it is a breach of trust the Crown often seeks jail even for a first offender, especially over $5,000. A conditional sentence order or, in less serious cases, a discharge is the usual defence target.
What Is Loss Prevention’s Role in My Case?
In retail files the loss prevention officers are usually the main witnesses. They have limited arrest powers and must follow the law. A confession they pressured out of you, or a detention that was not lawful, can be challenged.
Will My Employer Find Out If I Am Charged?
Police do not notify employers automatically. But a bail condition requiring disclosure to employers, or work in a bonded industry, will bring it out.
Can I Settle This Privately with My Employer?
You can repay the money, and you should. It does not stop the prosecution. Once police are involved, the decision to withdraw rests with the Public Prosecutions Branch, not the employer.
What Happens at My First Court Date in New Brunswick?
The first appearance is for election and plea. You or your lawyer receives the disclosure, and the matter is usually adjourned for several weeks so counsel can review it and talk to the Crown about resolution or diversion.
Is Theft From an Employee Considered a Breach of Trust?
Yes. An employee owes a duty to the employer, and taking money or property in that role is an abuse of a position of trust, aggravating under section 718.2 of the Criminal Code.
Can an Employee Theft Charge Be Dropped If I Pay the Money Back?
Not on repayment alone. Repayment does make a stay through AAMP, or a conditional discharge, far more likely, and both leave you without a permanent record.
The full range of matters the firm takes on appears under injury law areas, and the Moncton office answers the first call.