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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON April 3, 2002

Beware of making deals
with crooked employees


You would think that everyone knows by now that reporting a crime to the police is an essential part of crime prevention. If that isn't enough of a reason it also happens to be the civic duty of every law-abiding citizen. How about employers who catch their trusted personnel pilfering company merchandise or defrauding the public? Any different? It shouldn't be but the reality is that some employers are more than reluctant and not because they are afraid of getting involved. Sometimes it has to do with public relations considerations financial institutions are a good example, especially in the old days. Employees who were caught stealing or defrauding the public were often discreetly dismissed and never reported to the police in order to avoid bad publicity.


If it were just an omission to press charges I wouldn't be writing this column. Unfortunately, some employers crossed the line by making illegal deals with their crooked employees. The practice, which still crops up, goes something like this: the employee agrees to resign and reimburse the employer or whoever was defrauded and in return the employer agrees not to call the police. So what is the big deal?

Employers walk a tight rope

While the practice is as old as the hills, it is also highly risky. Any employer who enters into such an agreement with an employee can be walking a tight rope. The agreement can easily amount to compounding an indictable offence, which in itself is a crime punishable by a maximum term of imprisonment of two years.

Since ignorance of the law is no defense, those who may have played or are tempted to play, "Lets make a deal" with their crooked employees, would be well advised to take a close look at article 141 of the Criminal Code. If not, they may be the ones who could end up in jail.

To avoid any misunderstanding

So as to avoid any misunderstanding, here is how the first paragraph is worded: " Every one who asks for or obtains or agrees to receive or obtain any valuable consideration for himself or any other person by agreeing to compound or conceal an indictable offence is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years."

Although the term "compound" is not defined in the Criminal Code, it refers to the common law offence of compounding a felony, which is an agreement not to prosecute or to inform on a person who has committed an offence.

As to what offences are "indictable", the simplest answer is that they include practically every offence in the Criminal Code -from murder to simple assault or to be more specific, any offence that isn't exclusively punishable by summary conviction.

What it takes to commit the crime

On the basis of the Criminal Code, the crime is committed as soon as a person asks for, obtains, or agrees to accept any form of valuable consideration in exchange for agreeing to compound or conceal an indictable offence. In practical terms this covers any employer who, on condition of not making a complaint to the police, " asks for or obtains or agrees to receive" from his employee, "any valuable consideration" such as the return of the stolen goods. In enacting the article, our lawmakers obviously never meant to emphasize employers. The scope of the article is so wide that it can cover endless situations. Take the case of a victim whose house was broken into or who was the subject of a sexual assault. The crime of compounding an indictable offence is committed as soon as an offer is made by the victim not to make a complaint to the police or testify in return for money, reparations or the return of the stolen goods.

Two statutory exceptions

The article provides two exceptions that are reasonably clear. There is no criminal liability where the valuable consideration is obtained by virtue of an agreement made with the consent of the Attorney General. The other exemption has to do with agreements that are part of any government decriminalization program. Because of public interest considerations, prosecutors are invested with the authority and discretion in certain specific cases to substitute criminal charges by reimbursements to the victims and community work.

Gives a bad rap to the police and justice system

Making deals with employees that have been caught with their fingers in the cookie jar can have other serious consequences. This is particularly true in smaller communities where it is practically impossible to keep the lid on them. The sudden resignation of an employee can easily trip the rumor mill. Once the information gets out, it often spreads like wildfire.

People begin to speculate as the why a person who supposedly broke the law, succeeded in sidetracking the justice system. The more serious the crime the more people ask questions. Before long the rumors begin to reflect negatively on the efficiency of the police. "Why didn't so- and- so not call the police? " "Was it because the employer had no confidence in the police? " It is not just the police who can get a bad rap when such agreements take place They reflect badly on the whole justice system just by the way they contradict the rule of law. Why should some suspects be hauled before the courts while others get away with private deals? While it is true that no victim commits a crime by refusing to make a complaint this does not, nor should it, prevent the police from initiating an investigation as soon as they acquire reasonable grounds from other sources. If there was a crooked deal, both the victim who initiated the deal and the person who committed the crime can end up being charged.

One way or another, the victim may have some serious explaining to do.