Leaking confidential material criminal

But employers must be wary when exercising legal recourse

Jeff Monaghan, an Environment Canada employee, was arrested at his workplace in Ottawa and taken away in handcuffs by two RCMP officers last month for allegedly leaking the federal government’s environmental plan to media outlets and environmental agencies.

He is under investigation for breach of trust, a criminal offence with a maximum sentence of five years in jail.

Only employees who are officials (politicians or public servants) can be charged with breach of trust in this manner. Employee actions that could lead to such a charge include misusing the power of the office for personal gain or misusing company resources. The latter could include inappropriate Internet use or inappropriate use of proprietary or confidential information.

“The company owns materials generated at work,” said Richard Powers, assistant dean at the University of Toronto’s Rotman School of Management. Therefore, an employee who leaks documents to the press or other agencies could be found in breach of trust if he was not authorized to do so, he added.

While an employer is within its rights to allege breach of trust in such a case, it doesn’t happen very often and great care should be taken when exercising the option, said employment lawyer Ronald Minken of Markham, Ont.-based Minken and Associates.

“An employer should only charge an employee criminally for breach of trust in the clearest of cases,” he said.

That’s because, if the employee is cleared of the charges, he could then turn around and make a complaint of public mischief or libel against the employer and the employee could use the charge to show damages in a wrongful dismissal suit, said Minken.

In 2006, the Supreme Court of Canada laid down a detailed definition of breach of trust when it ruled a Quebec police chief, Denis Boulanger, did not abuse his position for his own gain when he asked for a second investigation into his daughter’s car accident.

The ruling established five criteria that must be proven in order for a defendant to be found guilty of breach of trust. These are:

•the accused was an official (defined in the Criminal Code as including “an office or appointment under the government,” “a civil or military commission,” and “a position or an employment in a public department”);

•the accused was acting in connection with the duties of his office;

•the accused breached the standard of responsibility and conduct demanded of him by the nature of the office;

•the conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and

•the accused acted with the intention to use his public office for a purpose other than the public good.

To protect itself from filing charges that are later proven false, the employer should conduct a thorough internal investigation, said Minken. Then, if the employer decides to have the employee charged, it should treat the employee with dignity and respect under any circumstances.

“It may be advisable for the employee to be arrested in private,” said Minken. “The employer should do as much as it can to not embarrass the employee.”

However, publicly arresting an employee sends a clear message to other employees, said Rotman’s Powers.

“It’s a show of force,” he said. “This is important stuff. If they’re going to have any confidentiality, they have to be able to trust their employees.”

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