A terminated employee was convicted of "Mischief to
Data" and "Unauthorized use of a Computer" contrary
to the Criminal Code after he remotely accessed a former
co-worker's e-mail without her authorization and forwarded
several e-mails to his personal account. In this recent appeal
decision, the Summary Conviction Appeal Court reduced the
terminated employee's sentence to a conditional discharge after
taking into consideration, among other things, the potential impact
of a criminal conviction on his current and potential employment
In R. v. Charania, the appellant was terminated from
his employment as the Director of Care at a nursing home. Later
that same evening, the appellant used the username and password of
Ms. Caven, the Human Resources Coordinator at the nursing home, to
remotely access her e-mail. Once in her e-mail, the appellant
forwarded several e-mails relating to their meeting and his
employment to his personal e-mail account. At the same time, Ms.
Caven was also attempting to remotely access her e-mail using her
username and password. She was repeatedly denied access and
eventually locked out of the system, which led to a complaint to
IT, and subsequently, to an investigation by the nursing home and
Contrary to the appellant's claim, Ms. Caven denied
providing the appellant with her username and password. Based on
the totality of the evidence, the trial judge found the appellant
guilty of the offences charged. She conditionally stayed one count
and on the other count sentenced the employee to a fine of
$1,300.00 and placed him on probation for 18 months with terms
including restitution. The appellant appealed his sentence.
The Summary Conviction Appeal Court found that the trial judge
committed an error by considering the appellant's defence as an
aggravating factor and again when considering the viability of a
conditional discharge. In considering whether to vary the sentence
imposed by the trial judge, the court stated that the potential
impact of a criminal conviction on the offender's current and
potential employment opportunities is a relevant consideration in
deciding between a criminal conviction and a conditional discharge.
The court went on to consider that the appellant was a first time
offender with no prior criminal record. He had a Bachelor of
Science in Nursing, with a minor in healthcare administration and
was studying for his Master's degree. Prior to these offences
he had a solid employment history and had contributed to the
community through volunteer work. Further, as a registered nurse
the appellant was facing additional consequences for his conduct as
a result of disciplinary proceedings by the College of Nurses of
Ultimately, the Summary Conviction Appeal Court held that, in
these particular circumstances, a conditional discharge would
neither be contrary to the public interest nor would be
inconsistent with the fundamental purpose and principles of
sentencing in the Criminal Code.
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