## 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

1. Whether confidential information, as a pure intangible, can be the subject of theft under Criminal Code s. 283(1) (“anything whether animate or inanimate”).
2. Whether obtaining and disclosing that confidential information in these circumstances would constitute fraud under Criminal Code s. 338(1).
3. 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.


R. v. Stewart, [1988] 1 S.C.R. 963 (Can.)