Offences against property rights

Theft

Fraudulently and without color of rights taking anything with intent to deprive temporarily or absolutely its owner of thing.

The actus reus is the trespassory (non consensual) taking and carrying away of the personal property of another.

Voluntary act: 2 elements: the taking (caption) and the asportation of the property. Any movement, no matter how trivial, entails asportation.

Social Harm: conduct, no need to damage its value.

Mens rea: (fraudulent) intent and specific intent to steal, i.e., to deprive the owner (temporarily or absolutely in Canada) of his personal –tangible- property.

Fraudulently means a dishonest or immoral intent. A dishonest intent to appropriate the property.

Without color of right: a person asserts a possessory right, a claim of ownership or lawful possession to the thing.

Degree: grand (value of property more than $5000) up to ten years in prison vs. petty (value of property $5000 or less) up to 2 years.

Doctrine of recent possession: Where it is proved that the accused has possession of recently stolen property, and no explanation is given for that possession, the trier of fact may, but must not, draw an inference that the accused is guilty of theft even if there is no evidence of guilt.

Specific theft offenses:

1) To abstract, consume or use electricity, gas, or telecommunications services.

2) To make, own, or sell any instrument or device to obtain a telecommunications service without paying for that service, e.g., TV descrambler.

3) Theft by a person required to account. Anyone who having received anything from any person on terms that require him to account for or pay it to that person fraudulently fails to account for or pay it. For example. Taxi driver. MR: fraudulent intent.

Embezzlement or theft by conversion

Fraudulently and without color of rights converting anything with intent to deprive temporarily or absolutely its owner of thing.

Elements of the offense: (i) A came into possession of the personal property of another in a lawful manner, and (ii) that A thereafter fraudulently converted –appropriated- the property, i.e., performed some act that demonstrated his intent to deprive another of the property).

Convert: legal obtains possession of property but fails to return it.

Robbery

• Steal with violence or threats of violence to a person or property.
• Steal from any person and immediately after or before or during wounds, beats, strikes, or uses any personal violence to that person.
• Assault any person with intent to steal
• Steal from any person while armed with an offensive weapon or imitation thereof.

Violence: no need to be severe or cause injury to the victim. Any form of physical interference from a push to a punch will amount to violence. It may also be directed at someone else.

Extortion

A person threatens another with some consequence so that the person is forced to commit an act or to omit doing something that he or she otherwise would not have done.

False pretence

• A representation by words or other means
• About facts, past or present
• That the accused knows to be untrue, and
• That is made with dishonest intent to make someone do something

E.g., I tell you I have $ 5000 in my checking account so that you will accept a cheque.

Exaggerated commendations or depreciation of the quality of anything is not false pretence.

Fraud

Actus reus: 2 elements: deprivation (detriment, prejudice, or risk of prejudice to the economic interests of the victim) and dishonesty (an act of deceit, falsehood or other fraudulent means).

Mens rea: knowledge that one is undertaking a prohibited act that could deprive another person of property or put that property at risk.

Fraud includes false pretences but also other forms of deceit. There have been many proposals to merge both offences in only one crime.