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.