Breach of Trust in Canada: Trustees and Public Officers

“Breach of trust” covers two different offences in the Criminal Code. Criminal breach of trust (s. 336) applies to a trustee who uses property held for someone else, or for a public or charitable purpose, for an unauthorized use with intent to defraud. Breach of trust by a public officer (s. 122) applies to officials, such as police officers, correctional officers, public servants and elected officials, who commit fraud or a breach of trust in connection with the duties of their office. Both charges appear regularly in police news about officials and people managing money for others.

What the law says

Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (s. 336)

Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction. (s. 122)

What the Crown must prove

• Criminal breach of trust (s. 336): the accused was a trustee (for example an executor, a trustee of a trust, a guardian of property or someone formally holding funds for a charity); they converted the property to an unauthorized use; and they intended to defraud.
• Breach of trust by a public officer (s. 122): the accused was an official acting in connection with their duties; they breached the standard of responsibility and conduct expected of the office; the breach was a serious and marked departure from that standard; and they acted with the intent to use the office for a purpose other than the public good, such as a dishonest, partial, corrupt or oppressive purpose (the test set by the Supreme Court of Canada in R. v. Boulanger, 2006 SCC 32).

Mistakes, poor judgment or breaches of internal policy are not enough on their own: the criminal offence requires a marked departure and an improper purpose.

Penalties

• Criminal breach of trust (s. 336): indictable only; up to 14 years.
• Breach of trust by a public officer (s. 122): hybrid; up to 5 years by indictment, or up to 2 years less a day on summary conviction.

Abuse of a position of trust or authority is an aggravating factor at sentencing (s. 718.2(a)(iii)), and restitution orders are common when money was lost. A public official convicted of an offence related to their office may also face dismissal and professional consequences.

Common defences

• Not a trustee or official: the relationship did not create a trust, or the person was not an “official” within the meaning of s. 118.
• Authorized use: the use of the property was permitted by the trust terms or by the beneficiaries.
• No intent to defraud or improper purpose: the conduct was an honest error, negligence or a policy breach, not a criminal breach.
• Accounting evidence: forensic accounting and records are often central and can be challenged.

If you are charged

• Do not discuss the charge with police or anyone else before getting legal advice. You have the right to stay silent and to speak to a lawyer without delay (your rights if arrested).
• Follow every release condition (no contact, curfew, address). A breach is a new offence (how bail works).
• Attend every court date. Failing to appear is also an offence.
• Get the disclosure: the Crown must give you the evidence it has. A lawyer can review it, negotiate with the Crown (withdrawal, diversion, a lesser charge) or prepare for trial.
• If you cannot afford a lawyer, legal aid and duty counsel at the courthouse can help.

Criminal record and record suspension

A conviction creates a criminal record, unless the court grants a discharge, which is not a conviction (an absolute discharge is removed from the RCMP system after one year, a conditional discharge after three years). A person who was convicted can apply to the Parole Board of Canada for a record suspension (formerly a pardon). Because this is an indictable offence, the waiting period is 10 years, counted from the end of the whole sentence, including probation and payment of fines (Criminal Records Act, s. 4). More from the Parole Board.

Frequently asked questions

What is breach of trust in Canada?

It refers to two offences: criminal breach of trust by a trustee who misuses property held for others (s. 336, up to 14 years), and breach of trust by a public officer who abuses their office for an improper purpose (s. 122, up to 5 years).

Can a police officer be charged with breach of trust?

Yes. Police officers are officials under the Criminal Code. Using police databases for personal reasons, or using the office for a dishonest or corrupt purpose, can lead to a s. 122 charge if it is a marked departure from the standard expected.

Is breaking a workplace policy a breach of trust offence?

Not by itself. The Supreme Court requires a serious and marked departure from the standard of the office and an intent to use the office for a purpose other than the public good.

Related offences

• Fraud Law in Canada
• Theft Over $5,000 in Canada
• Proceeds of Crime in Canada
• Obstruction of Justice in Canada
• False Pretences in Canada

Sources

• Criminal Code, s. 336
• Criminal Code, s. 122

General legal information, current to the Criminal Code as in force on September 30, 2026. It is not legal advice: every case turns on its facts. Speak to a lawyer about your situation.