Published in CELT (Canadian Employment Law Today Issue No. 494 – September 26, 2007)
By Ronald S. Minken, LL.B.
On April 17, 2007, the RCMP Commercial Crime Section received a complaint from Environment Canada’s security department that a draft secret copy of “Climate Change Section of the Eco-Action Plan” had been released a full week before it was meant to go public. The source of the leak also attached a manifesto justifying the leak as an act of protest against the “secrecy of the Harper government” and stated that the action was taken because the need for public information outweighed the importance of due process. Jeffrey Monaghan, a 27-year-old temporary employee for Environment Canada in Gatineau, Quebec, is currently under investigation for leaking the government’s secret documents. He was arrested on an allegation for breach of trust under section 122 of the Criminal Code (“the Code”), which states that
“every official who, in connection with the duties of his office,
commits fraud or breach of trust is guilty of an indictable offence
and liable to imprisonment for a term not exceeding five years,
whether or not the fraud or breach of trust would be an offence if
it were committed in relation to a private person.”
Since Monaghan is still under investigation, it is unclear whether or not he will be criminally charged for his actions as an employee. In order for Monaghan to be found criminally liable for breach of trust, five factors must first be established as outlined by Chief Justice Beverly McLachlin in R. v. Boulanger. The Crown would have to prove beyond a reasonable doubt that Monaghan (1) is an official, (2) he was acting in connection with the duties of his office, (3) he breached the standard of responsibility and conduct demanded of him by the nature of the office, (4) his conduct represented a serious and marked departure from the standards expected of an individual in his position of public trust, and (5) he acted with the intention to use his public office for a purpose other than the public good.
Monaghan, an Environment Canada employee, could be considered an “official” given that the term official, under section 118 of the Code, broadly includes “a position or an employment in a public department.” It is possible that because of the nature of his work, specifically, summarizing daily news coverage and managing the department’s internal communications website, Monaghan was acting in connection with the duties of his office. However, Monaghan may not have been privy to highly confidential information on a regular basis and it is unclear how he obtained the secret draft of the document. It can be argued that Monaghan breached the standard of responsibility and conduct required of him as an employee responsible for analyzing government-specific information. In addition, there is a higher duty of care associated with employees of a government department serving the public interest because such employees are in a position of public trust regardless of their ranking. It may be difficult for the Crown to prove that Monaghan acted with the intention to use his position as an official for a purpose other than the public good, since the manifesto attached to the leaked documents indicated that they were being disclosed for the purpose of the public good – the need for the public to be fully informed about their government’s plans and decisions.
The possibility of the government charging Monaghan for breach of trust as a public official under the Code, demonstrates the ability employers have in seeking remedies against employees who commit a breach of trust. Non-public official employees are not held to the identical standard as public official employees because they do not carry the same level of duty of care or fiduciary obligation as a public official. Non-public officials can be charged by their employer for breach of trust under section 336 of the Code. Only in rare circumstances, however, would a non-public official employee who committed a breach of trust warrant a criminal charge. Perhaps even more discouraging for employers who are considering charging their employee with breach of trust is the high degree of proof adopted in criminal court, being beyond a reasonable doubt. In civil matters, involving an allegation of breach of trust, the degree of proof is lower than in criminal court, being a balance of probabilities. In civil court, however, an allegation of breach of trust will require a higher degree of proof than other allegations, such as the establishment of termination for cause. Even in the most extreme of circumstances involving theft by an employee who is in a position of trust, as in Guilbert v. Air Canada, arbitrators will often evaluate the employee’s work record, whether there was an admission of guilt, an apology provided and other mitigating factors in lieu of dismissal in rendering a decision.
Although, according to the Code, bank employees and professionals are not public officials they are expected to comply with similar community standards of absolute transparency, integrity and honesty. However, even in matters involving bank employees and professionals, instances of employee dishonesty or misuse of employer confidential information have only warranted progressive discipline and, in some extreme circumstances, dismissal, but rarely criminal charges for breach of trust. In Vaillancourt v. National Bank of Canada, a bank employee’s improper and dishonest granting of credit constituted grounds for dismissal, despite the employee’s stellar employment record with the bank. In this instance, it was deemed unnecessary for the bank to apply progressive discipline. In Tavares v. Canadian Imperial Bank of Commerce, an assistant accountant was dismissed for falsifying bank records, misappropriation of customer funds and failure to report serious irregularities. The adjudicator ordered that the bank reinstate the assistant accountant, and found that the dismissal was excessive since there were mitigating factors. For instance, the bank employee was helpful and co-operative in the bank’s investigation, at the hearing she readily admitted her role in the scheme and did not attempt to justify her actions, and the bank only provided written reprimands for employees below her for their participation in the same offence. The arbitrator held that the bank should have demoted the employee, rather than resorting to dismissal. Accordingly, a breach of trust is not an automatic ground for dismissal.
Employers who have alleged that an employee has committed a breach of trust should first conduct a thorough investigation, and then consider appropriate disciplinary measures or termination of employment rather than proceeding to charge their employee criminally. In situations involving non-public official employees, including bank employees or professionals, consideration is given to a host of mitigating factors surrounding an employer’s decision to terminate their employee for breach of trust. Where an employer has decided to criminally charge an employee for breach of trust and has concurrently suspended the employee, the suspension may constitute a constructive dismissal. There is a clear risk to employers in charging an employee criminally for breach of trust whether a public official or non-public official. Courts, thus far, have encouraged employers to conduct adequate investigations and apply disciplinary measures to their employees before resorting to criminally charging or dismissing their employees for breach of trust. There may be, however, exceptional circumstances where it is appropriate and advisable for employers to consider charging an employee, whether a public or non-public official, for breach of trust in situations where, for instance, that employee has a high level of accountability to the public or community.
For more information see:
§ R. v. Boulanger,  S.C.J. No. 32.
§ Guilbert v. Air Canada (unreported, January 13, 1986, Ferland, Ref. No. 552-Que.).
§ Tavares v. Canadian Imperial Bank of Commerce (unreported, May 29, 1985, Carrier, Ref. No. 474-Que.).
§ Vaillancourt v. National Bank of Canada (unreported, February 29, 1984, Turcotte, Ref. No. 320-Que.).
Ronald S. Minken is a senior lawyer at Minken & Associates P.C., an employment law boutique, located in Markham, Ontario, www.EmploymentLawIssues.ca. Ronald gratefully acknowledges Andrea Lim, a summer law student with Minken & Associates P.C., for her assistance with this article.