You are awkward selling your nephew's photos in public without his knowledge and consent. He doesn't know. "If three black people own a common law trademark( also federally registered) and they get into litigation involving its use for a parade, shouldnt I be able to kill them and take it if I am white; and the mayor? That's my culture where I come from; lawless!" It could be your culture Sir, but it's against the law. It is misfeasance in public office and it's also a theft. It does not matter if the victim is black and your family member. Information or intellectual property amount to property that is capable of being stolen. See R. v. Offley, 1986 ABCA 110 (CanLII). Click here for more.
Date:
1986-04-28
File number:
8503-9075-A
Other citations:
45 Alta LR (2d) 23 — 70 AR 365 — 28 CCC (3d) 1 — 51 CR (3d) 378 — 11 CPR (3d) 231
Citation:
R. v. Offley, 1986 ABCA 110 (CanLII), <http://canlii.ca/t/2djwr>, retrieved on 2020-03-13
In the Court of Appeal of Alberta
Citation: R. v. Offley, 1986 ABCA 110
Date: 19860428
Docket: 8503-9075-A
Registry: Edmonton
Between:
Her Majesty the Queen
(Respondent)
- and -
George William Offley
Accused
(Appellant)
The Court:
The Honourable Chief Justice Laycraft
The Honourable Mr. Justice Belzil
The Honourable Mr. Justice Matheson
Reasons for Judgment of The Honourable Mr. Justice Belzil
Concurred in by The Honourable Chief Justice Laycraft
Concurred in by The Honourable Mr. Justice Matheson
APPEAL FROM THE CONVICTION BY THE HONOURABLE MR. JUSTICE E.P. MacCALLUM DATED the 29th DAY OF MAY, A.D. 1985
COUNSEL:
M.C. Elton, for the Respondent
C.D. Evans, Q.C., for the Appellant
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE BELZIL
THE HONOURABLE MR. JUSTICE BELZIL
[1] The issue in this appeal is whether protected information is “property” capable of being stolen. In R. v. Stewart. (1983) 5 C.C. (3d) 481 the Ontario Court of Appeal (Lacourciere, J.A. dissenting) held that if the information was confidential it was “property” capable of being stolen. In Oxford v. Moss, (1978) Cr. App. R. 183 the Divisional Court in England reached the opposite conclusion, holding that confidential information is not “intangible property” capable of being stolen.
[2] The appellant is a retired R.C.M.P. staff sergeant who operates a security firm. Part of his business involved doing security checks for employers on job applicants including checks to determine if these applicants had criminal records. In June 1984 he had asked the Deputy Chief of the Edmonton City Police Department if that department would check names of persons for him from the Canadian Police Information Centre (CPIC), a pool of computer stored information. He was advised that this information was available to law enforcement agencies only and his request was denied. Shortly thereafter, he befriended Constable Brown of the Edmonton City Police and eventually asked him if he would do these checks for him through CPIC for a fee of $2.00 per name. Constable Brown dutifully reported the offer to his superiors and the appellant was “set up”. Terms were discussed between the appellant and Constable Brown, with moneys earned to be deposited in an account to be opened in the name of the Constable’s wife. On August 27, 1984, the appellant gave two lists of names to the Constable. Constable Brown searched these through the CPIC and OSCAR, another pool of computer information organized by the City of Edmonton. On August 29 Constable Brown turned over the information to the appellant and received $65.00 in return. The appellant was arrested, charged with and later convicted of the following offences:
“COUNT #1
That he, at or near Edmonton, in the Judicial District of Alberta, on or about the 29th of August, A.D. 1984, did unlawfully counsel another person, to wit: Constable William Brown, a peace officer with the City of Edmonton Police Department, to commit an indictable offence which was not committed, to wit: theft of information, property of the City of Edmonton Police Department, contrary to the Criminal Code.
COUNT #2
That he, on or about the 29th day of August, A.D. 1984, at the City of Edmonton, in the Province of Alberta, did corruptly give Constable William Brown, a peace officer with the City of Edmonton Police Department, a sum of money to wit: $65.00 with intent that Constable William Brown should procure or facilitate the commission of an offence, to wit: theft of information, contrary to Section 109(b) of the Criminal Code.”
[3] Following the Stewart decision of the Ontario Court of Appeal, the trial judge stated that the offence of theft would be made out only if the Crown proved, beyond a reasonable doubt, that the information allegedly stolen was confidential. He found that it was confidential as far as the accused was concerned because he had been so advised. As in Stewart he held that there had been no deprivation but that confidentiality had been destroyed.
“283. (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.
” (emphasis mine)
“Property” is defined in s. 2:
“2. In this Act
….
‘property’ includes
(a) teal and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,
(b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by such conversion or exchange, and
(c) any postal card, postage stamp or other stamp issued or prepared for issue under the authority of the Parliament of Canada or of the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;”
[5] In England, the relevant statute is the Theft Act 1968. It defines theft in s. 1(1):
“(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it; …”
“Property” is defined in s. 4(1):
“‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.”
[6] It will be seen then that for the purpose of comparing the decision in Stewart with that in Oxford v. Moss the definitions in the Criminal Code of Canada and the English Theft Act are the same. Both cases dealt with the very issue raised in this appeal, i.e. whether confidential information is “property” capable of being stolen.
[7] The issues are fully canvassed in Stewart, in the reasons of Mr. Justice Krever at trial reported 1982 CanLII 2042 (ON SC), 38 O.R. (2d) 84, and in the majority and dissenting reasons in the Court of Appeal of Ontario, to which reference may be made.
[8] Krever, J. was of the view that to be “anything” within the meaning of s.283(1) of the Criminal Code, the thing, whether tangible or intangible, must be capable of being property, and that confidential information is not property for the purpose of the law of theft in Canada.
[9] In the Court of Appeal. Houlden, J.A. held that the definition of property in s.2 of the Criminal Code (supra) includes a thing which is property for the purposes of the civil law. Relying on dicta in the Exchange Telegraph cases, in some American cases, and in Boardman et al v. Phipps (H.L.) 1967 A.C. 46, he concluded that confidential information is capable of being “property” in civil law and therefore capable of being the subject matter of theft. Recognizing that the taking or conversion to constitute theft had to be accompanied by one of the intents specified in s.283(1)(d), he found that the taking or conversion of the information would destroy its confidentiality, and hence could not be “returned” in the condition it was in at the time it was taken or converted, although he had in the earlier part of the same sentence held that the owner of the information would not have been deprived of possession of the information.
[10] While agreeing with Houlden, J.A., Cory, J.A. gave as additional reason that confidential information was capable of being recognized as property by analogy with copyright.
[11] In dissent, Lacourciere, J.A. was of the opinion that the word “anything” in the definition of theft was to be given a meaning within the restricted concept of “property”. This did not include confidential information which is incapable in law of being the subject matter of proprietary rights. He distinguished the Exchange Telegraph cases, Boardman v. Phipps and the other cases mentioned in the judgments of the majority by pointing out, correctly in my view, that these were actions for breach of confidential relationship. He said at pp. 489 and 491:
“The ongoing controversy in the civil context is whether actions for breach of confidence dealing with confidential information of the nature presently considered are based on ‘property’ in the information or on the equitable obligation of good faith. It seems clear to me, on the authorities reviewed, that the civil protection in English and Canadian courts arises from the obligation of good faith or the fiduciary relationship: see Hammond. ‘Quantum Physics, Econometric Models and Property Rights to Information’ (1981), 27 McGill L. Rev. 47.”
“In Rank Film Distributors Ltd. et al v. Video Information Centre et al., [1981] 2 All E.R. 76, the House of Lords held that the pirating of copyrighted films and the selling of unauthorized video cassettes did not constitute theft as the ‘property’ definition of the Theft Act, 1968 ‘does not appear to include copyright’ (per Lord Fraser of Tullybelton at p. 83).
In any event. Canadian courts have grafted a property concept on the definition of the words ‘anything whether animate or inanimate’, and thus confidential information per se is not protected under the Criminal Code. I agree with Krever J.’s conclusion that it is for Parliament to broaden the criminal definition of the property concept if the needs of modern Canadian society require it.
After much anxious consideration of the problem, I feel bound to agree that the word ‘anything’ used in s.283 must be defined and qualified within the context of property and that confidential information does not properly fit within that context.”
[12] With all respect I do not agree with the majority decision of the Ontario Court of Appeal in Stewart. What constitutes anything “animate or inanimate” in s.283 must, in my view, be determined by the intrinsic nature of the “thing” and not by its quality. If information per se is intrinsically incapable of being an “inanimate thing”, the qualifying of it as being “confidential” will not make it so. The concept of “returning” (i.e. bringing back that which had been previously taken away) something to the owner when he has never been deprived of it is difficult to grasp. How can something which has never been taken away be returned to the person from whom it was never taken? Is the person who reveals a personal secret entrusted to him by a friend to be guilty of theft? Or the person who reads a confidential memo inadvertently left on his desk?
[13] In his Textbook of Criminal Law, 2nd Edition, Glanville Williams says at p.717 in reference to the decision in Oxford v. Moss:
“Why couldn’t it be said that the student has stolen the confidential ideas in the paper?
Secrets are not property. They are neither material things nor legal rights.
Industrial and trade secrets are often immensely valuable, are legitimately bought and sold, and for some purposes are regarded as property. Civil courts will award an injunction or damages in respect of a breach of confidence or a breach of contract relating to confidential information of commercial value. Nevertheless, such information has not yet attained the status of property for the purpose of theft. An employee who in breach of contract communicates his employer’s secret know-how to a third party does not deprive the employer of the information.
No. but he deprives him of the secret. The result may be to drain the secret of practically all its commercial value.
That is so, of course. But the traditional lawyer will feel that to speak of a secret as though it were a thing is too metaphysical.
The difficulty with secrets relates not only to the intent to deprive permanently but to the question of appropriation. Granted that you can in a sense deprive a person of a secret by blurting out the secret, do you ‘appropriate’ the secret by blurting it out? If it is a commercial secret you may in a sense appropriate part of its value by making yourself a joint possessor of the secret, but appropriating the value of the secret is not quite the same as appropriating the secret. Smith’s ‘value’ rule, even if it becomes judicially endorsed, as one hopes it will be, relates only to the intent to deprive. It does not assert that appropriating value without appropriating property is theft. No problem of appropriation arises with the student who takes the examination paper into his possession; he appropriates the physical paper, if only for a short time. If he merely managed to read the questions when they were lying on the Professor’s desk, the argument that he has not appropriated any property would be an insuperable obstacle to his conviction of theft.
These considerations show that the definition of theft does not well fit cases of industrial espionage. There is a very strong case for extending the criminal law to the protection of trade secrets and fighting t of the secret police set up by an unauthorised mayor in violation of the Police Services Act and other valuable confidential information (such as the scenario of a play) deliberately obtained by industrial espionage or knowingly in breach of confidence, but the way to achieve this is somehow to goad Parliament into action on the subject.”
[14] I agree with the conclusion of the Divisional Court in Oxford v. Moss for the reasons expressed by Krever, J. and Lacourciere. J.A., in Stewart. In my view Lacourciere. J.A. has properly distinguished the Exchange Telegraph cases and the other authorities relied on by the majority in Sterwart.
[15] Having reached the conclusion that the appeal must be allowed on the ground that confidential information is incapable of being stolen, it is unnecessary to consider whether the information here obtained from a compilation of data made up from public files, and obtainable from other sources as well, was “confidential information” as found by the trial judge.
[16] The appeal is allowed, the conviction quashed, and a verdict of acquittal directed to be entered.
DATED at EDMONTON, Alberta
this 28th day of April, 1986.
this 28th day of April, 1986.
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