(we might want to be careful about using “property” here).
What distinguishes the criminal law context from the context of common law?
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Criminal law “regulates” society, CLP regulates disputes between individuals
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Criminal law punishes, Criminal is the level of the state – property between people
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Criminal law: state (public) vs. individual (private) State has to prove case; individual must have all the benefits for procedural fairness- resources)
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Deprives liberty through enforcement of consequences, Symbolic; goals
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CML doesn’t like to expand beyond its enumerated boundaries
R. v. MacEwan R v. Bell (1947); 647 – Alcohol is not Property; To fall into penal prohibitions (quasi-crim) – something must be recognized as property.
Facts: Vanilla extract stolen (alcoholic), but civil statute says alcohol is not property and theft needs to ‘interfere with property rights.’
Holding: No theft because criminal code says “property”, and at the time alcohol is not property.
Therefore under the prohibition laws of PEI at the time alcohol or containers containing alcohol could not be the subject of theft
So criminal law: courts want to stick to the letter of the law because you’re bringing in state machinery – and court says since they don’t have value, not property.
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Piper likes this: Issue during the prohibition was the recognition of what the container that held alcohol, also this was regulated by provinces (true crimes are federal)
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There are many things that could not be stolen. You can steal water out of a water main; you could even steal air, as they may be the subject of ownership. You cannot steal a wild animal; so long as it is in the state of nature it cannot be stolen. If a person catches a wild animal and keeps it in captivity it may be stolen so long as the person keeps it in his possession. Under the prohibition act alcoholic intoxicating liquor, including essences, cannot be the subject of property, in whoever’s possession they are.
MacEwen v Bell:
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Prohibition era law says no one can have a property right in alcohol
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Theft from the CC said you have to take “property”
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Therefore you cannot be charged with theft of something that is not property.
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How do you recognize something that isn’t property, but has a lot of value to a community
Stewart v. The Queen (1988), SCC; 617; Information is not Property; A “chose” in CML Prop does not make it property in criminal law – no one “owns” confidentiality.
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Facts – Stewart was hired as a consultant by a union seeking to obtain a list of the employees of a hotel – He tried to bribe a security guard to copy a list of the employees, without actually taking anything away from the employer – The guard revealed the scheme and Stewart was charged under the Criminal Code for theft – Stewart argued that he had not taken anything, or intended to take anything, and could not be criminally charged.
Issues – Is confidential information property? Can confidential information be stolen? [NO, NO]
Reasoning (Lamer):
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Confidential info given in the circumstances of confidence (signing a non-disclosure agreement; burden on person holding or given info to keep it confidential.)
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This is a case for legislation and not for the courts so if this is to be a criminal offence then the legislature must decide
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In order to be convicted of theft a person needs to take or convert “anything” with the necessary intent – The question is whether intangibles other than choses in action (in this case confidential information) qualify as “anything” for the Criminal Code, s.283 (1).
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S.283 (1) limits “anything”: 1) to things that can be subject to a proprietary right; 2) to property capable of being: a) taken – therefore intangibles are excluded, b) converted –may be intangible, c) taken or converted in a way that deprives the owner of his proprietary interest
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The fact that information may possibly be property under civil law (property law) does not make it so for the purposes of criminal law – different concerns inform criminal law – Criminal law punishes wrongs against society – It therefore involved special issues of public policy – It is far from certain whether the taking of information should be criminalised.
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Information probably requires protection under the criminal law – However, the legislature is better placed to weigh all the relevant considerations.
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Furthermore, pure intangibles can only be converted, not taken – However, subject to exceptional and unusual circumstances, confidential information cannot be converted, since the owner is not deprived of its use – the only thing that is taken is the confidentiality since the owner still has the information and no one can “own” confidentiality
Rule – Confidential information is not property for the purposes of criminal law BUT this does not preclude a finding that it could be property for purposes of civil law. This is a civil matter.
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Court is left with the question – is the object a theft under the criminal code? Problem here is that no one was deprived of everyone, it was just that more people had access to this information. Was a harm was committed?
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Nothing was taken or destroyed: IP can exist in many places at the same time without depriving individuals.
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Contextual background:
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This is an SCC case that is used around the world in KL jurisdictions – this is the Canadian equivalent to INS v. AP
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This case is used as a tool to designate what is and is not property sometimes for different social purposes
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Piper: this case deals with confidential information – defined as information that the holder must keep confidential either to protect its value or the privacy interests of its subject – we have trouble conceptualizing confidential information as property because it is non-rivalrous so there is no exclusion of others by your use. Also, there is employment mobility argument – how to make people forget when they change jobs?!
Piper: there is a question of whether this case would be decided the same way today. Information is much more valuable than it was even in 1988
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Calling things property would mean it’s harder to punish meaning higher procedural requirement.
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So: value choice, not for courts.
Relational point: you can’t create “quasi-property rights” – between citizen and the world, necessarily.
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Stewart (Lamer)– what constitutes theft for the criminal law; what if nothing is taken; converted or destroyed? In this case it was only copied, and did not deprive any individuals. Court says confidential information is not property for the CC.
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Not property b/c someone is not deprived
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You cannot ask people to forget confidential information
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This is asking the courts to settled what is essentially a civil issue.
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Who has been harmed?
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What is confidential information?
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If confidential information is recognized as property
R. v. Roberts – Animal carcass a theft, opposite of MacEwan and Stewart, animal carcass chattle and property.
Facts: police take carcass of animal away from motorist. Is this considered theft?
Holding: Yes – theft. Civil rules on possession apply equally in criminal law – animal was a thing for the purpose of the criminal law and it was stolen. Person who has de facto possession has property, and accordingly such possession is protected, against all who cannot prove a superior title.
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