Facts
- A Toronto hotel treated employee names, addresses, and telephone numbers as confidential and refused to give them to a union seeking to organize employees.
- Wayne John Stewart, believing he was acting for the union, approached a hotel security guard (Hart) and offered money for the confidential employee information.
- The parties agreed that no tangible object (such as a list, file, or printout) would have been taken; the plan involved disclosure of the information itself.
- Hart was not authorized to access personnel or payroll records and knew the hotel regarded the information as confidential.
- Hart reported the approach; police recorded a subsequent phone call between Hart and Stewart.
- Stewart was charged with counselling theft (Criminal Code s. 283(1)) and counselling fraud (Criminal Code s. 338(1)).
Issues
- Whether confidential information, as a pure intangible, can be the subject of theft under Criminal Code s. 283(1) (“anything whether animate or inanimate”).
- Whether obtaining and disclosing that confidential information in these circumstances would constitute fraud under Criminal Code s. 338(1).
- Whether Stewart could be convicted of counselling if the counselled acts would not amount to theft or fraud.
Decision
- The Supreme Court of Canada allowed Stewart’s appeal and restored the acquittal.
- Confidential information “per se,” as a pure intangible not embodied in a tangible object, was not “anything” capable of being stolen under s. 283(1).
- On the agreed facts, the information was not “property” in a manner that could sustain a fraud conviction under s. 338(1), where the hotel had no intention to exploit it commercially.
- Because the underlying conduct would not have constituted theft or fraud, Stewart could not be guilty of counselling those offences.
Legal Principles
- For theft under s. 283(1), the subject matter must be capable of a proprietary right and capable of being taken or converted in a way that results in deprivation to the victim.
- Disclosure or copying of confidential information, without taking a tangible object embodying it, does not meet theft’s “taking” and deprivation requirements where the holder retains possession and use of the information.
- Civil protection of confidentiality does not, by itself, make information “property” for criminal theft.
- Fraud requires dishonest conduct causing deprivation (including risk of prejudice) of property or an economic interest; a loss of confidentiality alone, absent a proprietary or commercial exploitation interest on these facts, was insufficient.
- Counselling liability depends on the counselled conduct constituting the indictable offence; if no offence would occur, counselling is not made out.
Conclusion
The Court held that confidential employee information, treated as a pure intangible and not taken in tangible form, could not be stolen under the theft provision and was not “property” for fraud on the agreed facts; therefore, Stewart’s acquittal on counselling theft and counselling fraud was restored.