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).

 

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