321

Definitions

321 In this Part,

break means

(a) to break any part, internal or external, or

(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening; (effraction)

credit card means any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used

(a) on presentation to obtain, on credit, money, goods, services or any other thing of value, or

(b) in an automated teller machine, a remote service unit or a similar automated banking device to obtain any of the services offered through the machine, unit or device; (carte de crédit)

document means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device, and includes a credit card, but does not include trade-marks on articles of commerce or inscriptions on stone or metal or other like material; (document)

exchequer bill means a bank-note, bond, note, debenture or security that is issued or guaranteed by Her Majesty under the authority of Parliament or the legislature of a province; (bon du Trésor)

exchequer bill paper means paper that is used to manufacture exchequer bills; (papier de bons du Trésor)

false document means a document

(a) the whole or a material part of which purports to be made by or on behalf of a person

(i) who did not make it or authorize it to be made, or

(ii) who did not in fact exist,

(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,

(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made; (faux document)

revenue paper means paper that is used to make stamps, licences or permits or for any purpose connected with the public revenue. (papier de revenu)

Annotations

• Part IV

322

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Time when theft completed

(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.

Secrecy

(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.

Purpose of taking

(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.

Wild living creature

(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.

Annotations | French

• Section 322
• The item stolen can be a tangible or an intangible thing. An intangible thing must be capable of being converted by the accused in a way to deprive the victim. A thing is intangible if it has no physical existence. In order to be the object of theft, the intangible item must be property. For example, confidential information does not constitute property so cannot be the object of theft (R v Stewart, [1988] 1 SCR 963).
• A person can claim to have a “colour of right” to possess or convert something if they have an honest belief that they have the right to possess or convert it (R v DeMarco, 1973 13 CCC (2d) 369 (ONCA) at para 8; R v Lilly, [1983] 1 SCR 794).
• While the word “fraudulently” may suggest that the prosecution has to prove the accused used deception or trickery, courts have concluded that this is not the case. For instance, if the accused intentionally misappropriates an object and there was no mistake that they did not own it, then the taking or conversion of that thing would meet the definition of “fraudulently” for the purposes of s. 322(1) (R v Skalbania, [1997] 3 SCR 995 at para 6; R v Neve, 1999 ABCA 206 at para 30).
• “Property” is defined in section 2 of the Criminal Code.
• To have a “special property or interest” within the meaning of s. 322(1)(a) requires the victim of the theft to have a property interest in the very item alleged to have been stolen, and that interest must exist at the time of the alleged offence. For example, in R v Smith, the victim was a mining company who alleged that the accused stole a blank cheque. The cheque had been signed by the accused, who falsely claimed to be officers of the company. At the time of the alleged theft of the forged cheque, the victim did not have a property interest. While the victim certainly had an interest in the forged cheque not being cashed, it could not be said to have any property interest in the cheque itself (R v Smith, [1962] SCR 215).
• Possession of property obtained by crime is not necessarily an included offence for theft R v Rivet, 1975 OJ No 227 (CA) at para 3; R v Palaga, 2008 SKCA 36). However, in certain circumstances it can be. If the theft was perpetrated by the accused, then possession of stolen goods can be an included offence. If the accused is only a party to the offence, then it is not necessarily an included offence -- it would depend on the circumstances (R v Francis, 2011 ONSC 4323).
• Theft is committed by taking or converting
• Theft is an offence of specific intent (R v George, [1960] SCR 871 at p 877; R v Penno (1986), 30 CCC (3d) 533 (ONCA) at p 540). There are two ways to commit the offence of theft: by taking the thing or converting the thing. “Taking” in this context is used in its ordinary sense. “Converting” means to have control over the thing in question and to exercise that control in a way that is contrary to the victim’s rights over it (R v Bates (1989), 94 AR 238 at paras 10-12).
• Defences
• Because theft is an offence of specific intent, the defence of intoxication is available (R v George, [1960] SCR 871 at p 877; R v Penno (1986), 30 CCC (3d) 533 (ONCA) at p 540). Historically, there was no defence of self-induced intoxication to any crime. With time, intoxication became a defence, but only to specific intent offences (R v Leary, [1978] 1 SCR 29). This defence was not available for general intent offences; general intent offences usually only require proof that the accused performed the illegal act to make out the mental element of the offence (R v Tatton, 2015 SCC 33).
• The Supreme Court found that the rule in Leary violated ss. 7 and 11d) of the Charter (R v Daviault, [1994] 3 SCR 63). The result of this was that an accused could use self induced intoxication to the point of automatism as a defence to any offence, even general intent offences.
• In response to Daviault, Parliament enacted s. 33.1 of the Criminal Code in 1995. This provision prohibited the reliance on self-induced intoxication as a defence to offences that involved an element of assault or interference or threat of interference with another person’s bodily integrity. The Supreme Court mor recently struck down this provision since it found that it violated ss. 7 and 11d) of the Charter and was not otherwise saved by s. 1 (R v Sullivan, 2022 SCC 19; R v Brown, 2022 SCC 18).
• Soon thereafter, Parliament responded with Bill C-28 that amended s. 33.1 of the Criminal Code. The new amended version of s. 33.1 holds that a person is still criminally liable for general intent offences even if they lack the general intent or voluntariness ordinarily required to commit an offence if they departed markedly from the standard of care with respect to consuming the intoxicating substances (Criminal Code, RSC 1985, 2022, c 11, s 33.1).
• A Prank is Not a Defence to Theft
• The British Columbia Provincial Court conducted a review of cases on the issue of whether a prank could be a defence to theft in R v Prosser, [1995] BCWLD 632 (BCPC). In its review, the British Columbia Provincial Court noted that the Manitoba Court of Appeal found that an accused, who was drunk, and who took an ashtray from an airport with the full intent of returning it lacked the requisite dishonest state of mind (R v Kerr (1965), 47 CR 268 (MBCA)). The same court arrived at a different conclusion in a subsequent case (R v Heminger, [1969] 3 CCC 201 (MBCA)). It found that the facts of Heminger were different than Kerr since in Kerr, the accused had told the police about his lack of intent immediately during his arrest whereas in Heminger, they only provided the explanation at trial.
• The Quebec Court of Appeal took a different approach in Bogner v R (1975), 33 CRNS 346 (QBCA). In this case, the accused along with two other men took a rocking chair from the front porch of a hotel. They were caught with the chair and they were arrested for theft. The appellant stated to the police that the whole thing was a joke and his intention was to bring the chair home but then return it. The Court found that the appellant still had the required mens rea to commit theft even if the taking was only intended to be a joke because the taking was still fraudulent and without colour of right; the taking was intentional, not justified, and done with full knowledge that the chair did not belong to them. The New Brunswick Court of Appeal also took this same approach in R v McKay (1975), 12 NBR (2d) 609 (NBCA).
• Following this review of the case law, the British Columbia Provincial Court in Prosser ultimately adopted the approach taken by the Quebec Court of Appeal and the New Brunswick Court of Appeal.
• Concealing the Item On its Own is Not Theft
• Placing an item in a bag in and of itself does not constitute a theft. One must actually take the item. For example, placing a belt in a bag but not yet making it past the point of purchase or exiting the store does not amount to a theft. The onus is always on the Crown to prove that the accused intended to take the thing (R v Nesbitt, [1972] 2 OR 585 (Ont CA)).
• Section 322(5)
• Captivity is when wild animal is confined
• A wild living creature is in captivity when it is in a “den, cage or small [e]nclosure, stye or tank” or kept in a manner preventing escape (Campbell v Hedley (1917), 39 OLR 528, (Ont CA); Nakhuda v Story Book Farm Primate Sanctuary, 2013 ONSC 5761 at para 23).

323

Oysters

323 (1) Where oysters and oyster brood are in oyster beds, layings or fisheries that are the property of any person and are sufficiently marked out or known as the property of that person, that person shall be deemed to have a special property or interest in them.

Oyster bed

(2) An indictment is sufficient if it describes an oyster bed, laying or fishery by name or in any other way, without stating that it is situated in a particular territorial division.

Annotations

• Part IV

324

Theft by bailee of things under seizure

324 Every one who is a bailee of anything that is under lawful seizure by a peace officer or public officer in the execution of the duties of his office, and who is obliged by law or agreement to produce and deliver it to that officer or to another person entitled thereto at a certain time and place, or on demand, steals it if he does not produce and deliver it in accordance with his obligation, but he does not steal it if his failure to produce and deliver it is not the result of a wilful act or omission by him.

Annotations | French

• Section 324
• “Peace Officer” and “Public Officer” are defined under s. 2 of the Criminal Code.
• “Steal” is defined under s. 2 of the Criminal Code as “Theft”. The elements of the offence are contained in s. 322 of the Criminal Code.
• “Bailee” is a person who is entrusted to hold on to a thing and account for it. A person is a bailee if they are required to account for property to someone even though that property was originally theirs. In the case of a sheriff who seizes the goods of the accused but leaves them in the accused’s possession, the accused can be a bailee if he is given a bond by the sheriff to account for those goods: R v Luciuk (1926), 21 Sask. L.R. 244 (SKKB) at para 4.
• Elements of the Offence
• Lawful seizure is an essential element for this offence. It is not sufficient to simply prove that the seizure was properly carried out. A bailiff has not lawfully seized a car when the accused has failed to make car payments simply because the seizure was properly carried out. It is necessary that the Crown prove that the seizure was legal, for instance, because there was a clause authorizing seizure for non-payment in the sales contract for the vehicle: R v Brown, 1984 ABCA 145 (CanLII) paras 5-6.
• A bailiff appointed by a property owner to seize property is not necessarily a peace officer or public officer in the meaning of s. 2 of the Criminal Code if they are not “employed for the preservation and maintenance of the public peace or for the service or execution of civil process.”: R v Lipman (1935), 3 DLR 122 (Ontario Co Ct) at para 5.
• The Crown must prove that there was a demand to produce and deliver a thing under seizure to the peace officer or public officer and that the accused had failed to comply with the demand: R v Troyen (1986), 1 YR 160 (YKTC) at para 7.

325

Agent pledging goods, when not theft

325 A factor or an agent does not commit theft by pledging or giving a lien on goods or documents of title to goods that are entrusted to him for the purpose of sale or for any other purpose, if the pledge or lien is for an amount that does not exceed the sum of

(a) the amount due to him from his principal at the time the goods or documents are pledged or the lien is given; and

(b) the amount of any bill of exchange that he has accepted for or on account of his principal.

Annotations

• Part IV

326

Theft of telecommunication service

326 (1) Every one commits theft who fraudulently, maliciously, or without colour of right,

(a) abstracts, consumes or uses electricity or gas or causes it to be wasted or diverted; or

(b) uses any telecommunication facility or obtains any telecommunication service.

(2) [Repealed, 2014, c. 31, s. 14]

Annotations | French

• Section 326
• “Theft” is defined in s. 322 of the Criminal Code.
• Not a defence if unlawful distributor
• It does not matter that the telecommunication signal originates outside of Canada. One still commits theft if that signal is stolen even if the company that transmits the signal is not a “lawful distributor” in Canada: R v Scullion (2002), 166 CCC (3d) 526 at paras 22-25 (QCCA), leave to appeal to SCC refused, [2002] SCCA No 296.

327

Possession of device to obtain use of telecommunication facility or service

327 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, knowing that the device has been used or is intended to be used for that purpose, is

(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) guilty of an offence punishable on summary conviction.

Forfeiture

(2) If a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.

Limitation

(3) No order for forfeiture is to be made in respect of telecommunication facilities or equipment by means of which an offence under subsection (1) is committed if they are owned by a person engaged in providing a telecommunication service to the public or form part of such a person’s telecommunication service or system and that person is not a party to the offence.

Definition of device

(4) In this section, device includes

(a) a component of a device; and

(b) a computer program within the meaning of subsection 342.1(2).

Annotations | French

• Section 327(1)
• Foreign or unauthorised in Canada is not a defence
• It is not a defence if the device used to obtain telecommunication was used to encrypt signals from a distributor not lawfully authorized to distribute in Canada. It is not a defence to state the device used to decode signals only decodes the signals not authorized to be distributed in Canada: R v Scullion (2002), 166 CCC (3d) 526 at para 26 (QCCA), leave to appeal to SCC refused, [2002] SCCA No 296); R v Fulop (1988), 46 CCC (3d) 427 (Ont CA) at 431, aff’d [1990] 3 SCR 695.
• Intended to be used is not limited to the accused
• “Intended to be used” is not just limited to the accused’s personal use. It is sufficient to show that the accused had knowledge that other persons would be using the device to obtain telecommunications services without payment. It is sufficient for the Crown to prove that the person in possession of the device knows that the purpose of the device is to obtain telecommunication services without payment: R v Fulop (1988), 46 CCC (3d) 427 (Ont CA) at 429, aff’d [1990] 3 SCR 695.
• Theft by person required to account
• 330 (1) Every one commits theft who, having received anything from any person on terms that require him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly.
• Effect of entry in account
• (2) Where subsection (1) otherwise applies, but one of the terms is that the thing received or the proceeds or part of the proceeds of it shall be an item in a debtor and creditor account between the person who receives the thing and the person to whom he is to account for or to pay it, and that the latter shall rely only on the liability of the other as his debtor in respect thereof, a proper entry in that account of the thing received or the proceeds or part of the proceeds of it, as the case may be, is a sufficient accounting therefor, and no fraudulent conversion of the thing or the proceeds or part of the proceeds of it thereby accounted for shall be deemed to have taken place.

328

Theft by or from person having special property or interest

328 A person may be convicted of theft notwithstanding that anything that is alleged to have been stolen was stolen

(a) by the owner of it from a person who has a special property or interest in it;

(b) by a person who has a special property or interest in it from the owner of it;

(c) by a lessee of it from his reversioner;

(d) by one of several joint owners, tenants in common or partners of or in it from the other persons who have an interest in it; or

(e) by the representatives of an organization from the organization.

Annotations

• Part IV

329

329 [Repealed, 2000, c. 12, s. 94]

Annotations

• Part IV

330

Theft by person required to account

330 (1) Every one commits theft who, having received anything from any person on terms that require him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly.

Effect of entry in account

(2) Where subsection (1) otherwise applies, but one of the terms is that the thing received or the proceeds or part of the proceeds of it shall be an item in a debtor and creditor account between the person who receives the thing and the person to whom he is to account for or to pay it, and that the latter shall rely only on the liability of the other as his debtor in respect thereof, a proper entry in that account of the thing received or the proceeds or part of the proceeds of it, as the case may be, is a sufficient accounting therefor, and no fraudulent conversion of the thing or the proceeds or part of the proceeds of it thereby accounted for shall be deemed to have taken place.

Annotations | French

• Section 330(1)
• Essential Elements
• The actus reus requires the Crown establish that the accused had an obligation to account for or repay something (i.e., money) that they have received. The Crown must also prove the terms related to the accused’s obligation of accounting or repayment in addition to a failure to comply with those terms: R v Lazeo, 2000 BCCA 483 at paras 35-36.
• The mens rea is established by proving that the accused either had fraudulent intent or willful blindness equivalent to fraud in their failure to comply with their obligations to account or repay. This is different than carelessness or negligence; to satisfy the fraudulent nature of this offence, there must be some level of deception, trickery, or cheating: R v Pidlubny, 1978 2 CR (3d) 35 (Ont CA).
• Misappropriation of money held under direction
• 332 (1) Every one commits theft who, having received, either solely or jointly with another person, money or valuable security or a power of attorney for the sale of real or personal property, with a direction that the money or a part of it, or the proceeds or a part of the proceeds of the security or the property shall be applied to a purpose or paid to a person specified in the direction, fraudulently and contrary to the direction applies to any other purpose or pays to any other person the money or proceeds or any part of it.
• Effect of entry in account
• (2) This section does not apply where a person who receives anything mentioned in subsection (1) and the person from whom he receives it deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, unless the direction is in writing.

331

Theft by person holding power of attorney

331 Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney.

Annotations

• Part IV

332

Misappropriation of money held under direction

332 (1) Every one commits theft who, having received, either solely or jointly with another person, money or valuable security or a power of attorney for the sale of real or personal property, with a direction that the money or a part of it, or the proceeds or a part of the proceeds of the security or the property shall be applied to a purpose or paid to a person specified in the direction, fraudulently and contrary to the direction applies to any other purpose or pays to any other person the money or proceeds or any part of it.

Effect of entry in account

(2) This section does not apply where a person who receives anything mentioned in subsection (1) and the person from whom he receives it deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, unless the direction is in writing.

Annotations | French

• Section 332
• The actus reus requires that the Crown prove the following elements beyond a reasonable doubt: (1) that the accused received, either solely or jointly, money (or valuable security or a power of attorney); (2) that the accused received this money for the purposes of selling real or personal property; (3) that the accused received a direction to apply this money to a purpose specified in the direction; (4) that the accused instead applied it to a different purpose; and (5) that the accused did so contrary to the direction they were provided (this final element might overlap with the previous element).
• The mens rea requires that the Crown show that in committing the actus reus, the accused misappropriated the money without mistake. The dishonesty is inherent in the offence and arises from an “intentional and unmistaken application of funds to an improper purpose”: R v Skalbania, [1997] 3 SCR 995 at para 6.

333

Taking ore for scientific purpose

333 No person commits theft by reason only that he takes, for the purpose of exploration or scientific investigation, a specimen of ore or mineral from land that is not enclosed and is not occupied or worked as a mine, quarry or digging.

Annotations

• Part IV

333.1

Motor vehicle theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

(a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or

(b) on summary conviction, to imprisonment for a term of not more than two years less a day

Subsequent offences

(2) For the purpose of determining whether a convicted person has committed a third or subsequent offence, an offence for which the person was previously convicted is considered to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.

Annotations | French

• Section 333.1
• The “joy-riding” offence as set out in s. 335 is not an included offence for motor vehicle theft (Lafrance v R, [1975] 2 SCR 201 at para 45).

334

Punishment for theft

334 Except where otherwise provided by law, every one who commits theft

(a) if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of

(i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or

(ii) an offence punishable on summary conviction; or

(b) if the value of what is stolen is not more than $5,000, is guilty

(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction,

where the value of what is stolen does not exceed five thousand dollars.

Annotations | French

• Section 334
• An accused can be convicted for both fraud and theft in relation to the same event especially when the fraud was completed prior to the theft. For example, if the accused obtained a contract through fraudulent means and then stole property as a result of this contract, the accused can be found guilty for both fraud and theft (R v Rosen, [1985] 1 SCR 83 at para 6).

335

Taking motor vehicle or vessel or found therein without consent

335 (1) Subject to subsection (1.1), every one who, without the consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

Exception

(1.1) Subsection (1) does not apply to an occupant of a motor vehicle or vessel who, on becoming aware that it was taken without the consent of the owner, attempted to leave the motor vehicle or vessel, to the extent that it was feasible to do so, or actually left the motor vehicle or vessel.

Definition of vessel

(2) For the purposes of subsection (1), vessel has the same meaning as in section 320.11.

Annotations | French

• Section 335
• “There is nothing constitutionally wrong” with section 335. The section does not infringe on an individual’s right to life, liberty or security of the person. Nor does it offend the presumption of innocence: R v PH, 2000 CanLII 5063 (ON CA) at paras 9, 17.
• This section criminalizes what is sometimes described as joy-riding, that is the taking or being the occupant of a motor vehicle that has been taken, without the owner’s consent. Whereas theft contrary to section 334 relates to the taking of ‘anything’, section 335 relates to the taking of automobiles: R v Lafrance,1973 CanLII 35 (SCC); R v Dunn, 2013 ONCA 539 at para 64 ; R v Tschetter, 2009 ABPC 125 at para 110.; Regina v Wilkins, 1964 CanLII 307 (ON CA).
• The offence of joy-riding can be made out in two ways. First, the accused takes a person’s motor vehicle without the owner’s consent. Second, the accused rides along with a third party who has taken the rightful owner’s motor vehicle without their consent. Regina v Wilkins, 1964 CanLII 307 (ON CA).
• Where the accused is the occupant of the motor vehicle, the Crown is required to “establish beyond a reasonable doubt that the occupant (…) knows that the vehicle was taken without the consent of the owner”: R v PH, 2000 CanLII 5063 (ON CA) at para. 17.
• The offence is made out regardless of whether or not the accused intended to deprive the rightful owner of their vehicle permanently, and regardless whether taking the vehicle was a joke. In other words, it is not a defence to say “I was planning to return the vehicle” or that taking the vehicle was just a prank or joke: Regina v Wilkins, 1964 CanLII 307 (ON CA); R v Lafrance, 1973 CanLII 35 (SCC).

336

Criminal breach of trust

336 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.

Annotations | French

• Section 336
• The term ‘trustee’ is defined in section 2 of the Criminal Code and includes any person who has been made a trustee by virtue of any Act, provincial law, deed, will or instrument whether orally or in writing. Basic duties and obligations of trusted include but are not limited to the following:
  • “The trustees' duty to the beneficiaries of the Trust is one of the law's highest and most demanding duties.
  • The trustees have a duty to administer the Trust in strict conformity to the terms of the Trust.
  • All trustees have a duty of loyalty that binds them at all times to act in the best interests of the beneficiaries. Where the personal interests of the trustee and the interests of the Trust or the beneficiaries of the Trust come into conflict or potential conflict, the trustees must prefer the interests of the Trust and beneficiaries to their own personal interests.
  • Trustees have a duty to keep records and render accounts. They must keep clear and accurate records of transactions affecting the trust. If a trustee fails to account properly, all doubts are resolved against the trustee. To the extent there are any deficiencies in a trustee's accounting, the trustee will be held liable. Mere failure to account shifts the burden to the trustee to justify the difference or face liability.
  • A duty to furnish information to the beneficiaries including information regarding all material facts, transactions and accountings.
  • A duty to exercise reasonable care and skill”: R v Bird, 2013 SKQB 343 (CanLII) at para. 88
• Criminal breach of trust is at it’s core a fraud with the additional element of breach of trust: R. v. Gopher, 2005 SKQB 243 (CanLII) at para. 149.
• The essential elements of the guilty act (actus reus) of offence of criminal breach of trust are as follows:
• A breach of duty, which “is established by proof that the accused did an act or failed to do an act contrary to the duty imposed;
• That a reasonable person would consider that the breach of duty was not done in good faith, in the interest of the beneficiary of the trust which can be established by proof that:
  • The accused derived a personal benefit from his conduct;
  • The accused's conduct caused loss or prejudice to the beneficiary; or
  • The accused's conduct was not otherwise in the beneficiary's interest”: R v Bird, 2013 SKQB 343 (CanLII) at para. 81.
• Criminal breach of trust is a specific intent offence that requires proof that the accused acted with the intent to defraud. The specific intent to defraud can be established by proof that the accused had:
  • Knowledge or was reckless as to the facts which constitute a “deceit”, a “falsehood” or “other fraudulent means”; and
  • Foresight or was recklessness as to the facts which are found in law to constitute “deprivation”: R v Bird, 2013 SKQB 343 (CanLII) at para. 82
• An accused’s belief that the conduct is not dishonest or will not cause a deprivation is not a defence: R v Bird, 2013 SKQB 343 (CanLII) at para. 82.
• Where the accused is the sole perpetrator of the offence, they must be a trustee. However, an accused person need not be a trustee to commit this offence as an aider or abettor” R v Rosen, 1985 CanLII 58 (SCC) at paras. 4-5.

337

337 [Repealed, 2018, c. 29, s. 33]

Annotations

• Part IV

338

Fraudulently taking cattle or defacing brand

338 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, without the consent of the owner,

(a) fraudulently takes, holds, keeps in his possession, conceals, receives, appropriates, purchases or sells cattle that are found astray, or

(b) fraudulently, in whole or in part,

(i) obliterates, alters or defaces a brand or mark on cattle, or

(ii) makes a false or counterfeit brand or mark on cattle.

Punishment for theft of cattle

(2) Every person who commits theft of cattle is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Evidence of property in cattle

(3) In any proceedings under this Act, evidence that cattle are marked with a brand or mark that is recorded or registered in accordance with any Act is, in the absence of any evidence to the contrary, proof that the cattle are owned by the registered owner of that brand or mark.

Presumption from possession

(4) Where an accused is charged with an offence under subsection (1) or (2), the burden of proving that the cattle came lawfully into the possession of the accused or his employee or into the possession of another person on behalf of the accused is on the accused, if the accused is not the registered owner of the brand or mark with which the cattle are marked, unless it appears that possession of the cattle by an employee of the accused or by another person on behalf of the accused was without the knowledge and authority, sanction or approval of the accused.

Annotations | French

• Section 338
• A cattle owner’s failure to conduct inspections to ensure that no stray cattle were among their herd when brought to market does not satisfy the knowledge requirement for this offence: R v Galpin, 1977 BCJ No 1100 (Prov Ct).

339

Taking possession, etc.‍, of drift timber

339 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, without the consent of the owner,

(a) fraudulently takes, holds, keeps in their possession, conceals, receives, appropriates, purchases or sells any lumber or lumbering equipment that is found adrift, cast ashore or lying on or embedded in the bed or bottom, or on the bank or beach, of a river, stream or lake in Canada, or in the harbours or any of the coastal waters of Canada;

(b) removes, alters, obliterates or defaces a mark or number on such lumber or lumbering equipment; or

(c) refuses to deliver such lumber or lumbering equipment up to the owner or to the person in charge of it on behalf of the owner or to a person authorized by the owner to receive it.

Dealer in second-hand goods

(2) Every one who, being a dealer in second-hand goods of any kind, trades or traffics in or has in his possession for sale or traffic any lumbering equipment that is marked with the mark, brand, registered timber mark, name or initials of a person, without the written consent of that person, is guilty of an offence punishable on summary conviction.

Search for timber unlawfully detained

(3) A peace officer who suspects, on reasonable grounds, that any lumber owned by any person and bearing the registered timber mark of that person is kept or detained in or on any place without the knowledge or consent of that person, may enter into or on that place to ascertain whether or not it is detained there without the knowledge or consent of that person.

Evidence of property in timber

(4) Where any lumber or lumbering equipment is marked with a timber mark or a boom chain brand registered under any Act, the mark or brand is, in proceedings under subsection (1), and, in the absence of any evidence to the contrary, proof that it is the property of the registered owner of the mark or brand.

Presumption from possession

(5) Where an accused or his servants or agents are in possession of lumber or lumbering equipment marked with the mark, brand, registered timber mark, name or initials of another person, the burden of proving that it came lawfully into his possession or into possession of his servants or agents is, in proceedings under subsection (1), on the accused.

Definitions

(6) In this section,

coastal waters of Canada includes all of Queen Charlotte Sound, all the Strait of Georgia and the Canadian waters of the Strait of Juan de Fuca; (eaux côtières du Canada)

lumber means timber, mast, spar, shingle bolt, sawlog or lumber of any description; (bois)

lumbering equipment includes a boom chain, chain, line and shackle. (matériel d’exploitation forestière)

Annotations | French

• Section 339
• A mistake of law is not a defence to the offence of theft of timber. For example, removing logs which were lodged at the end of boom line and towing them down river, believing that you are allowed to do so is a mistake of law and therefore not a defence: The Queen v Shymkowich, 1954 CanLII 77 (SCC)
• In contrast however, where the accused acts on the reasonable belief that the owners of the logs have given their permission to salvage logs and receive a portion of the proceeds the mental element of the offence cannot be established: Gaunt and Watts v. The Queen, 1953 CanLII 40 (SCC)