C. Property Offences

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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A broad array of property crimes are found in the Criminal Code and it is only possible to examine a few here. As with all criminal offences, it is important to distinguish the prohibited act and the prohibited fault elements. As will be seen, both theft and fraud follow trends to broadly defined act requirements. At the same time, theft has a particularly high mens rea requirement. Fraud has a slightly lower fault requirement that includes some forms of recklessness and does not require subjective appreciation that one is acting dishonestly.

1) Theft

The actus reus of theft under section 322 of the Criminal Code requires the taking or conversion of anything.268Anything must be a type of property that can be converted in a manner that deprives the victim. It does not include confidential information that has not been reduced to a list or other tangible thing.269Conversion can be affected by delivery of goods or the conversion of property to the accused’s own use with the intent to deprive the other person of the property.270Section 322(2) broadens the actus reus by providing that a person commits theft when, with the intent to steal, he or she begins to cause anything to move or to become moveable. Section 322(4) provides that it is not material whether the person in possession of the property is in lawful possession of the property.271It could be argued that a person who knowingly receives double payment for his or her services or who buys something from a store does not commit the actus reus of the theft because there is no taking of property. Such approaches, however, ignore the breadth of the actus reus of theft, which includes not only taking but also conversion of property for one’s own use.272Any concern about overreaching in defining the actus reus of theft should be addressed by the high mens rea requirement of the offence.

The mens rea of theft requires that a person take or convert something "fraudulently and without colour of right." The requirement of a fraudulent intent requires deceit, or an intention to deceive, and dis-

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honesty.273A colour of right is, as discussed in chapter 3, a form of mens rea that provides something of an exception to the general principle that ignorance or mistake of law is not an excuse. A person who has an honestly asserted proprietary or possessory claim to a thing may have a colour of right even if the claim is not founded in the law.274In addition, the prosecution must establish that the accused intended to deprive the owner of the property either temporarily or permanently. This includes actions such as pledging the property in security or altering or dealing with it in a manner so that it cannot be restored to its original condition.

2) Fraud

The actus reus of fraud under section 380 of the Criminal Code is 1) a prohibited act of deceit, falsehood, or some other fraudulent means that

2) has the prohibited consequence of causing a deprivation either in the form of an actual loss or placing the victim’s pecuniary interests at risk. What constitutes other fraudulent means will be determined objectively on the basis of what a reasonable person would consider to be dishonest even if these acts do not involve deceit or falsehood.275They can include the use of corporate funds for personal purposes, the unauthorized diversion of funds, and non-disclosure of material facts. In one case, other fraudulent means were defined to include the gambling practices of the accused with respect to money that was necessary to pay the accused’s creditors.276The actus reus has been defined in a broad but purposive manner that is driven by the focus on dishonesty. In addition to dishonesty, however, there has to be a deprivation that produces either an actual loss or the...

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