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Information - General

. R. v. S.S.

In R. v. S.S. (Ont CA, 2023) the Court of Appeal canvasses basics of s.8 Charter search and seizure law, here when an 'information privacy' claim is made. The Crown argued that privacy rights here were diminished by virtue of provincial privacy laws [PHIPA and MFIPPA] which allowed release of medical information to law enforcement officials in "aid in an investigation":
[40] Naturally, S.S. did not claim any personal right in the seized information, nor did S.S. advance any territorial privacy claim. At its heart, S.S. was making an informational privacy claim relating to the communications exchanged during the medical examination. An “information privacy” claim is made where an individual asserts the right “to determine for themselves when, how, and to what extent information about them is communicated to others”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para 66. In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, Deschamps J. explained that “the appropriate question [where an informational right of privacy is being claimed] is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used.” It is helpful to begin with the latter two considerations – the reasons why the information was collected, and the circumstances in which it was intended to be used – before considering the impact of what the information revealed about S.S.

[41] In terms of the “reasons why [the information] was collected”, the trial judge concluded that this occurred as part of a medical examination being conducted to ensure S.S.’s health. This finding was supported by the evidence. The expectation of privacy in information exchanged for medical treatment is significant given that the patient “is forced to reveal information of a most intimate character to … protect his life or health”: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 433. In this case, S.S., a young person, just having been injured in a car accident, answered questions posed by a paramedic for the purpose of securing required medical attention, thereby creating communicated information that S.S. may well not otherwise have provided.

[42] The Crown argues that any reasonable expectation of privacy in information exchanged in ambulances for health care purposes is diminished because of the combined effect of disclosure exceptions in provincial privacy legislation,[3] [SS: PHIPA s.43(1)(f) and MFIPPA s.32(g)] that together permit a health information custodian within a municipal service to disclose information to a Canadian law enforcement agency to aid in an investigation. In the Crown’s submission, this legislation would authorize the ambulance service to release the Ambulance Call Report containing the results of S.S.’s medical examination to the police, thereby undercutting S.S.’s claim to a reasonable expectation of privacy.

[43] I need not comment on the Crown’s interpretation of the legislation to reject this submission. Even if it can be said that the disclosure exception the Crown relies upon diminishes, in some measure, the relevant expectations of privacy, it does not do so materially. The legislation relied upon by the Crown applies solely to municipalities. Surely the reasonableness of S.S.’s expectation of privacy does not turn on whether the ambulance that attended happened to be municipally owned.

[44] More importantly, there are general problems with the Crown’s submission. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 73, Cromwell J. recognized that the purpose of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, a privacy statute, is to increase the protection of personal information, a proposition equally true of the statutes relied upon by the Crown in this case. It would defeat the operation of such statutes if law enforcement disclosure provisions were treated as equivalent to powers of search or seizure: Spencer, at paras. 71, 73. Yet that would be the effect of treating the law enforcement disclosure provision as defeating S.S.’s reasonable expectation of privacy, thereby permitting a search or seizure that may otherwise be unlawful.

[45] In order to prevent disclosure exceptions in privacy legislation from playing this kind of role, this court has cautioned that disclosure exceptions are not to be interpreted in a way that makes privacy legislation “‘virtually meaningless’ in the context of an ongoing police investigation”, nor should disclosure exceptions be taken as defeating the reasonable expectations of privacy recognized in the legislation as a whole: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 103, 111. After all, disclosure exceptions exist not to deny privacy interests, but to protect persons who disclose private health care information pursuant to those exceptions from being prosecuted for breach of the statute.[4] In my view, the Crown is placing an importance on its claimed disclosure exception that such an exception would not properly bear.

[46] Moreover, even if the existence of a disclosure exception can be said, in some measure, to diminish an expectation of privacy, “a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 9.

[47] I am therefore satisfied that the disclosure exemption that the Crown claims does not play a significant role in determining whether S.S. had a reasonable expectation of privacy. In my view, the trial judge was correct when assessing S.S.’s reasonable expectation of privacy in giving the weight that she did to the fact that the information seized by P.C. Sagl was provided as part of a medical examination being conducted to ensure S.S.’s health.

[48] With respect to the third Gomboc factor for consideration in assessing a reasonable expectation of informational privacy – “the circumstances in which [the information] was intended to be used” – the trial judge found that the information in question was intended to be used for the purpose of S.S.’s care. In this context, the trial judge’s finding, again supported by the evidence, that S.S. would not have known that P.C. Sagl was in the ambulance, takes on significance. S.S. had no reason to believe that the answers shared with the paramedic for health purposes were being captured by a police officer as part of a criminal investigation.

[49] This brings us to the remaining Gomboc consideration – what the information reveals about the person involved. I accept the Crown’s submission that information from S.S. about S.S.’s alcohol consumption and speed of driving does not relate to S.S.’s private medical conditions. I am also prepared to assume, for the sake of analysis, that such information is not core biographical information relating to S.S.’s life choices.[5] But that does not, in all of the circumstances, work against the trial judge’s finding that S.S. had a reasonable expectation of privacy. The information that S.S. shared was self-incriminatory, and individuals are entitled to make a meaningful and informed choice whether to share self-incriminating information with the police or exercise their right to silence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 23, 31; R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. The fact that SS. shared self-incriminatory information during a medical examination for medical purposes, not knowing that a police officer was present, underscores the importance of privacy in the circumstances of this case. In my view, the trial judge was correct in observing that S.S. lacked the knowledge required to choose whether to exercise the right to silence that would have operated had P.C. Sagl identified herself to S.S.
. Tar Heel Investments Inc. v. H.L. Staebler Company Limited

In Tar Heel Investments Inc. v. H.L. Staebler Company Limited (Ont CA, 2022) the Court of Appeal considered the tort of conversion in relation to information:
Conversion not established

[17] The trial judge’s focus on ownership of the book of business caused him to view the case through the lens of the tort of conversion, despite the nature of the property in question.

[18] The tort of conversion “involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession”: Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 S.C.R. 727, at p. 746. It is a tort of strict liability and it is no defence that the wrongdoer did not intend to convert the goods: Boma, at p. 746.

[19] It is not settled whether intangible property such as the information in a book of business can be the subject of a conversion claim. Some trial courts have held that the tort does not apply to intangible property: see e.g., Del Giudice v. Thompson, 2021 ONSC 5379, at para. 172; appeal transferred to Ont. C.A., C70175; Mann Engineering Ltd. v. Desai, 2021 ONSC 7580, 22 B.L.R. (6th) 165, at para. 126; Utilebill Credit Corporation v. Exit It Contract Consulting Inc., 2022 ONSC 2307, at paras. 22-24. Other trial courts have held that it can apply: see e.g., Brant Avenue Manor Ltd. Partnership v. Transamerica Life Insurance Co. of Canada (2000), 2000 CanLII 22368 (ON SC), 48 O.R. (3d) 363 (S.C.), at para. 13; Canivate Growing Systems Ltd. v. Brazier, 2020 BCSC 232, at para. 71. There is no authoritative guidance from this court on the issue.

[20] The trial judge does not address the matter and this court cannot do so given the state of the record. Even assuming that the tort of conversion could apply to intangible things, such as a book of business, the trial judge did not make the findings necessary to support the application of the tort in this case: see Boma, at p. 746. He stated simply that “[s]elling that which one does not own constitutes the tort of conversion.” The difficulty is that information is unlike chattel property. In the normal sort of case involving conversion, an owner is deprived of the use of a chattel because it is taken by another. In this case, the information found to have been converted remained in the respondent’s possession; it was copied and provided to Staebler. Use of the information by Staebler may well have had the effect of harming the respondent’s business, but the information remained with the respondent while Staebler used it. In short, the trial judge’s findings are not adequate to support the conclusion that conversion of the TRIP book had occurred.
. R. v. Stewart

In R. v. Stewart (SCC, 1988) the Supreme Court of Canada considers whether information can be the subject of criminal theft:

16. Section 283(1) of the Criminal Code reads as follows:
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.
17. In order to be convicted of theft, one has to take or convert "anything whether animate or inanimate" with the requisite intent as described in paras. (a) to (d). To determine whether confidential information can be the object of theft, the meaning of "anything" must be ascertained. The word "anything" is very comprehensive and is not in itself restricted in any way. As such it could include both tangible things and intangibles. Appellant contends that the offence of theft contemplates only physical objects. Under Canadian law as it now stands, however, "anything" has been held to encompass certain choses in action, which are intangibles. In R. v. Scallen, supra, the accused was convicted on a charge of theft of credit in a financial institution. The British Columbia Court of Appeal held that bank credit was included in "anything" under s. 283(1) (at p. 473):
I see no reason to construe "anything" in s. 283(1) with stress on "thing", and I think the word should be construed in its broad sense and to mean exactly what it says, that theft can be committed of "anything" that was property. That would include a bank credit in a bank account‑‑which any normal person having one would describe by saying that "he had money in the bank". I think it would be difficult to convince him otherwise, even if in strict domestic law all he had was the right to draw money from the bank in cash, by banknotes, by cheque or by transfers elsewhere.
18. The reasoning in Scallen, with which I am in agreement, was followed in R. v. Hardy (1980), 1980 CanLII 466 (BC CA), 57 C.C.C. (2d) 73 (B.C.C.A.) Since certain choses in action can be the subject of theft, what must be decided for the purpose of this appeal is whether intangibles other than choses in action are to be included in the word "anything".

19. In R. v. Offley (1986), 1986 ABCA 110 (CanLII), 28 C.C.C. (3d) 1, the Alberta Court of Appeal was of the view that information, even when qualified as confidential, is not "anything" within the meaning of s. 283(1), because it is intrinsically incapable of being an inanimate thing. In that case, the accused offered money to a police officer to run security checks for him on job applicants through the Canadian Police Information Center, knowing that this information was available only to law enforcement agencies. As in the case before us, he was charged with counselling theft of information. The Alberta Court of Appeal disagreed with the majority decision of the Ontario Court of Appeal in the case at bar and acquitted the accused.

20. We are here dealing not with the theft of a list or any other tangible object containing confidential information, but with the theft of confidential information per se, a pure intangible. As mentioned earlier, the assumption that no tangible object would have been taken was part of the agreed statement of facts, and the case was argued throughout on that basis. The word "anything" is not in itself a bar to including any intangible, whatever its nature. However, its meaning must be determined within the context of s. 283 of the Code. Indeed, while sexual intercourse was found to be included in "anything" within the meaning of the extortion provision (R. v. Bird, 1969 CanLII 961 (BC CA), [1970] 3 C.C.C. 340 (B.C.C.A.)), it does not necessarily follow that the same must be found under our law of theft.

21. In my view, the wording of s. 283 restricts the meaning of "anything" in two ways. First, whether tangible or intangible, "anything" must be of a nature such that it can be the subject of a proprietary right. Second, the property must be capable of being taken or converted in a manner that results in the deprivation of the victim.

22. With respect to the first restriction, the courts below have decided the case on the assumption that "anything" has to be property. While appellant's counsel takes issue with the relevancy of this qualification, I am of the view that such qualification is proper. In my opinion, it is clear that to be the object of theft, "anything" must be property in the sense that to be stolen, it has to belong in some way to someone. For instance, no conviction for theft would arise out of a taking or converting of the air that we breathe, because air is not property.

23. It can be argued‑‑as Professor Weinrib does in "Information and Property" (1988), 38 U.T.L.J. 117‑‑that confidential information is property for the purposes of civil law. Indeed, it possesses many of the characteristics of other forms of property: for example, a trade secret, which is a particular kind of confidential information, can be sold, licensed or bequeathed, it can be the subject of a trust or passed to a trustee in bankruptcy. In the commercial field, there are reasons to grant some form of protection to the possessor of confidential information: it is the product of labour, skill and expenditure, and its unauthorized use would undermine productive efforts which ought to be encouraged. As the term "property" is simply a reference to the cluster of rights assigned to the owner, this protection could be given in the form of proprietary rights. The cases demonstrate that English and Canadian civil law protect confidential information. However, the legal basis for doing so has not been clearly established by the courts. Some cases have treated confidential information as property, and thus have entitled the owner to exclude others from the use thereof: Aas v. Benham, [1891] 2 Ch. 244 (C.A.); Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q.B. 147 (C.A.); Exchange Telegraph Co. v. Central News Ltd., [1897] 2 Ch. 48; Exchange Telegraph Co. v. Howard (1906), 22 T.L.R. 375 (Ch. Div.) On the other hand, the courts have recognized certain rights with respect to confidential information in the guise of an equitable obligation of good faith: Peter Pan Manufacturing Corp. v. Corsets Silhouette Ltd., [1963] 3 All E.R. 402 (Ch. Div.); Saltman Engineering Co. v. Campbell Engineering Co., [1963] 3 All E.R. 413n (C.A.); Argyll v. Argyll, [1965] 2 W.L.R. 790 (Ch. Div.); Pre‑Cam Exploration & Development Ltd. v. McTavish, 1966 CanLII 61 (SCC), [1966] S.C.R. 551; Seager v. Copydex Ltd., [1967] 2 All E.R. 415 (C.A.); Boardman v. Phipps, [1967] 2 A.C. 47 (H.L.); Fraser v. Evans, [1968] 3 W.L.R. 1172 (C.A.)

24. It appears that the protection afforded to confidential information in most civil cases arises more from an obligation of good faith or a fiduciary relationship than from a proprietary interest. No Canadian court has so far conclusively decided that confidential information is property, with all the civil consequences that such a finding would entail. The case law is therefore of little assistance to us in the present case.

25. It is possible that, with time, confidential information will come to be considered as property in the civil law or even be granted special legal protection by statutory enactment. Even if confidential information were to be considered as property under civil law, it does not however automatically follow that it qualifies as property for the purposes of criminal law. Conversely, the fact that something is not property under civil law is likewise not conclusive for the purpose of criminal law. Whether or not confidential information is property under the Criminal Code should be decided in the perspective of the criminal law.

26. In Oxford v. Moss (1978), 68 Cr. App. R. 183, the Divisional Court had to decide whether confidential information was "intangible property" for the purposes of the Theft Act 1968. A student was accused of stealing an examination paper that he hoped to return without being detected. After considering a number of civil authorities dealing with the subject of confidential information, Smith J. wrote (at pp. 185‑86):
Those are cases concerned with what is described as the duty to be of good faith. They are clear illustrations of the proposition that, if a person obtains information which is given to him in confidence and then sets out to take an unfair advantage of it, the courts will restrain him by way of an order of injunction or will condemn him in damages if an injunction is found to be inappropriate. It seems to me, speaking for my part, that they are of little assistance in the present situation in which we have to consider whether there is property in the information which is capable of being the subject of a charge of theft. In my judgment, it is clear that the answer to that question must be no.
27. In civil law, the characterization of something as property triggers a series of legal consequences. That characterization has the same effect under the criminal law, although the consequences are somewhat different. If confidential information is considered as property for the purposes of the theft section, other sections of the Criminal Code relating to offences against property may also apply: ss. 27 (use of force to prevent commission of offence), 38 (defence of movable property), 39 (defence with claim of right), 302 (robbery), 312 (possession of property obtained by crime), 350 (disposal of property to defraud creditors), 616 (restitution of property), 653 (compensation for loss of property) and 654 (compensation to bona fide purchasers). For example, let us assume a person obtains confidential information by the commission of a crime, such as theft if it were possible. If, after having memorized the information, that person is incapable of erasing it from his memory, he could, one might argue, be charged with an offence under s. 312 of the Criminal Code for each day that he is unable to forget the information.

28. Furthermore, the qualification of confidential information as property must be done in each case by examining the purposes and context of the civil and criminal law. It is understandable that one who possesses valuable information would want to protect it from unauthorized use and reproduction. In civil litigation, this protection can be afforded by the courts because they simply have to balance the interests of the parties involved. However criminal law is designed to prevent wrongs against society as a whole. From a social point of view, whether confidential information should be protected requires a weighing of interests much broader than those of the parties involved. As opposed to the alleged owner of the information, society's best advantage may well be to favour the free flow of information and greater accessibility by all. Would society be willing to prosecute the person who discloses to the public a cure for cancer, although its discoverer wanted to keep it confidential?

29. The criminalization of certain types of conduct should not be done lightly. If the unauthorized appropriation of confidential information becomes a criminal offence, there would be far reaching consequences that the courts are not in a position to contemplate. For instance, the existence of such an offence would have serious implications with respect to the mobility of labour. In "Theft of Information" (1984), 100 L.Q.R. 252, Hammond points out (at p. 260) the problem that would follow:
[W]hat is significant for present purposes about the traditional civil law formulations with respect to such [employee] covenants is that, notwithstanding their difficulties of application, they do allow a balance to be struck in particular cases between the various interests at stake. The criminal law on the other hand allocates responsibility in black and white terms. There is either an offence or there is not. Every employee who leaves a position in Canada now faces criminal sanctions if he misjudges a line which judges have had enormous difficulty in drawing in civil law cases.
30. This indirect restriction on the mobility of labour is only one of the many undesirable consequences that could result from a hasty extension of criminal provisions by qualifying confidential information as property.

31. Moreover, because of the inherent nature of information, treating confidential information as property simpliciter for the purposes of the law of theft would create a host of practical problems. For instance, what is the precise definition of "confidential information"? Is confidentiality based on the alleged owner's intent or on some objective criteria? At what point does information cease to be confidential and would it therefore fall outside the scope of the criminal law? Should only confidential information be protected under the criminal law, or any type of information deemed to be of some commercial value? I am of the view that, given recent technological developments, confidential information, and in some instances, information of a commercial value, is in need of some protection through our criminal law. Be that as it may, in my opinion, the extent to which this should be done and the manner in which it should be done are best left to be determined by Parliament rather than by the courts.

32. Indeed, the realm of information must be approached in a comprehensive way, taking into account the competing interests in the free flow of information and in one's right to confidentiality or again, one's economic interests in certain kinds of information. The choices to be made rest upon political judgments that, in my view, are matters of legislative action and not of judicial decision. Illustrative of this is the complexity of the schemes suggested to legislatures and Parliaments by the various reform agencies in this country, the United Kingdom and the United States (v.g. Institute of Law Research and Reform, Report No. 46, Trade Secrets, July 1986).

33. For these reasons, I am of the opinion that, as a matter of policy, confidential information should not be property for the purposes of s. 283 of the Code. To the extent that protection is warranted for confidential information, it should be granted through legislative enactment and not through judicial extension of the concept of property or of the scope of the theft provision under the Criminal Code.

34. Although this conclusion is sufficient to dispose of the appeal on the charge of counselling theft, I will also consider the second restriction to the scope of the word "anything", that is, that property must be capable of being taken or converted in a manner that results in the deprivation of the victim. Tangible things present no difficulty in this regard, as it is easy to conceive how they can be both taken and converted. On the other hand, pure intangibles, as they have no physical existence, can obviously only be converted, not taken. The "taking" of an intangible could only occur where such intangible is embodied in a tangible object, for example a cheque, a share certificate or a list containing information. However, that would not result in the taking of the intangible per se, but rather of the physical object evidencing it.

35. The question is thus whether confidential information is of a nature such that it can be taken or converted. In my opinion, except in very rare and highly unusual circumstances, it is not. As we have seen, information per se cannot be the subject of a taking. As for conversion, it is defined as an act of interference with a chattel inconsistent with the right of another, whereby that other is deprived of the use and possession of it. Confidential information is not of a nature such that it can be converted because if one appropriates confidential information without taking a physical object, for example by memorizing or copying the information or by intercepting a private conversation, the alleged owner is not deprived of the use or possession thereof. Since there is no deprivation, there can be no conversion. The only thing that the victim would be deprived of is the confidentiality of the information. In my opinion, confidentiality cannot be the subject of theft because it does not fall within the meaning of "anything" as defined above.

36. It is no doubt possible to imagine far‑fetched situations where the victim would actually be deprived of confidential information. For instance, to give but one example, if an outsider elicits from an employee of the company, who is the only employee to hold a secret formula, not only that confidential information but also the undertaking to keep it secret from his employer. In these circumstances, assuming that confidential information is property, the element of deprivation would be met. However we must recognize that these factual situations are somewhat fanciful and will seldom occur. It would be odd indeed that these rare situations be covered by the law of theft, while the vast majority of cases concerning the appropriation of confidential information would remain beyond the reach of our theft section. I am thus of the view that as a matter of policy, it is best to exclude altogether confidential information from the realm of theft.

37. In the case at bar, the majority of the Court of Appeal held that if Hart had taken the information requested, the hotel would not have been deprived of the information, but of its character of confidentiality. As a result, the Court was of the opinion that Hart would have had the intent set out in s. 283(1)(d), that is, dealing with the information in such a manner that it could not be restored in its original confidential condition. With respect, the Court of Appeal did not properly consider the actus reus required for committing the offence, that is a taking or a conversion. As I said one cannot be deprived of confidentiality, because one cannot own confidentiality. One enjoys it. Therefore, appellant should not have been convicted on the sole basis that he might have had the intent set out in s. 283(1)(d) since the commission of the actus reus was not and could not be established.

38. Before this Court, respondent also argued that appellant intended to deprive the hotel of the special property or interest which it had in the list, contrary to s. 283(1)(a). Respondent contended that this special property or interest is what gave the list its value, namely its confidentiality, and thus that the absence of intent to deprive of the use of the information is irrelevant. I cannot agree with this suggestion. The "special property or interest" in s. 283(1)(a) refers to a proprietary possessory right in the thing stolen. This section contemplates for example the case of the owner of an object who, having pawned it, steals it back from the pawnbroker. Theft would then be committed because the pawnbroker has a special property or interest in the object, even against the owner. Although confidentiality might give some value to the information, it does not confer a special property or interest in it to anyone. Since confidential information is not property, it follows that one cannot have a proprietary possessory right in something that is not property. Furthermore, as I have said above, establishing that an offender has the intent required is not sufficient proof of guilt if the actus reus has not been committed.

39. As an additional ground for finding guilt, Cory J.A. held that even if information per se is not property, there still remains a right of property in confidential information which is now protected by the provisions of the Copyright Act. As copyright is, in his view, property, it falls within the scope of s. 283(1) and can therefore be the object of theft. The employer's list in the case at bar is indeed a "literary work" as defined in s. 2 of the Act, and thus the subject of copyright under s. 3 thereof. Does that mean however that the unauthorized reproduction of copyrighted information amounts to theft?

40. Copyright is defined as the exclusive right to produce or reproduce a work in its material form (s. 3). A mere copier of documents, be they confidential or not, does not acquire the copyright nor deprive its owner of any part thereof. No matter how many copies are made of a work, the copyright owner still possesses the sole right to reproduce or authorize the reproduction of his work. Such copying constitutes an infringement of the copyright under s. 17 of the Act, but it cannot in any way be theft under the criminal law. While one can, in certain circumstances, steal a chose in action, the rights provided in the Copyright Act cannot be taken or converted as their owner would never suffer deprivation. Therefore, whether or not copyright is property, it cannot, in my opinion, be the object of theft under s. 283(1) of the Code.

41. To summarize in a schematic way: "anything" is not restricted to tangibles, but includes intangibles. To be the subject of theft it must, however:
1. be property of some sort;

2. be property capable of being

(a) taken‑‑therefore intangibles are excluded; or

(b) converted‑‑and may be an intangible;

(c) taken or converted in a way that deprives the owner of his proprietary interest in some way.
Confidential information should not be, for policy reasons, considered as property by the courts for the purposes of the law of theft. In any event, were it considered such, it is not capable of being taken as only tangibles can be taken. It cannot be converted, not because it is an intangible, but because, save very exceptional far‑fetched circumstances, the owner would never be deprived of it.

42. For all these reasons, I am of the opinion that confidential information does not come within the meaning of the word "anything" of s. 283(1) of the Criminal Code.


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