section 328

INTRODUCTION AND BRIEF DESCRIPTION

This section of the Criminal Code of Canada states that a person can still be convicted of theft, even if the item stolen belonged to someone who had a special property or interest in it.

SECTION WORDING

328 A person may be convicted of theft notwithstanding that anything that is alleged to have been stolen was stolen (a) by the owner of it from a person who has a special property or interest in it; (b) by a person who has a special property or interest in it from the owner of it; (c) by a lessee of it from his reversioner; (d) by one of several joint owners, tenants in common or partners of or in it from the other persons who have an interest in it; or (e) by the representatives of an organization from the organization.

EXPLANATION

Section 328 of the Criminal Code of Canada is a provision that addresses the concept of theft. It states that a person can be convicted of theft, even if the item that was allegedly stolen was taken by someone who had a special property or interest in it. This provision is important because it allows for the protection of individuals who may have a valid claim to an item, even if the item has been taken by someone who they entrusted it to, or by someone who had a joint ownership or partnership in it. For instance, consider a situation where a business partner takes funds from a joint bank account without the other partner's consent. Even though the partner had a joint ownership in the account, they can still be charged with theft. Similarly, if a lessee takes an item that belongs to the landlord, or if an employee takes an item that belongs to their employer, they can still be charged with theft under the provisions of this section. Overall, section 328 is an important provision that ensures that the concept of theft is applied fairly and justly, without letting the ownership status of an item be used as an excuse for taking it without permission.

COMMENTARY

Section 328 of the Criminal Code of Canada is an important provision that ensures that individuals who steal property from owners who have a specific property interest or are authorized to possess the property can still be convicted of theft. This section is particularly relevant when considering complex property arrangements, such as those involving joint ownership or a lessee/reversioner relationship. Subsection 328(a) of the Criminal Code acknowledges that a person can be convicted of theft even if the item stolen was originally taken by the owner of the item from someone who has a special property interest or another legal connection to the item. This provision ensures that individuals who unlawfully abscond with another person's property can be held accountable, regardless of who originally took the item or what their relationship to it was. Subsection 328(b) extends this principle to cases where the person who steals the item has a special property or interest in it. For example, if a person who owns a canvas painting lends it to a friend who later steals it, that friend can still be convicted of theft even if they had a special property interest in the painting at one time. Subsection 328(c) specifically deals with lessees and reversioners. In this scenario, the lessee is someone who has legally rented an item from the reversioner, who is the owner of the property. If the lessee steals the item, they can still be convicted of theft. Subsection 328(d) pertains to situations in which multiple individuals have a legal interest in an item. This could occur in instances of joint ownership, tenancy in common, or partnerships. For example, if two business partners jointly own a company vehicle, and one partner steals the vehicle, they can still be convicted of theft. Finally, subsection 328(e) deals with situations in which representatives of organizations steal items from the organization itself. This could occur if an employee of a company steals property from the company's warehouse. In such cases, the individual can be charged with theft despite their relationship to the organization. In summary, Section 328 of the Criminal Code of Canada is a crucial provision that ensures that individuals who steal property from owners who have a special property interest in that property can still be convicted of theft. The section is particularly important in cases involving complex property arrangements, such as those involving joint ownership or lessee/reversioner relationships. Overall, this provision helps to ensure that justice is served in cases of theft, regardless of the specific legal arrangement involved.

STRATEGY

Section 328 of the Criminal Code of Canada is often known as the "false owner" provision. It allows individuals to be convicted of theft even if they steal something from someone who is not the rightful owner, but who has a special property or interest in the item. This provision provides some unique strategic considerations for those involved in criminal law proceedings in Canada. One of the key strategic considerations when dealing with section 328 is the potential for ambiguity or confusion surrounding ownership or special interest in an item. It is important to carefully consider the circumstances surrounding the alleged theft and determine whether the person who is accused of stealing the item knew or had reason to believe that the alleged victim had a special property or interest in it. This may require extensive investigation and use of experts to establish ownership and special interests. Another strategic consideration is the potential for defences to be raised by the accused. For example, the accused may argue that they believed that the alleged owner had abandoned the item, or that they believed they had a valid claim to the item due to a previous agreement or arrangement. It is important to carefully assess the strength of any defences that may be used and to develop a strategy that addresses them. One strategy that can be employed when dealing with section 328 is to carefully assess the strength of the prosecution's case and determine whether a plea bargain or other negotiated settlement may be appropriate. Given the potential complexity and ambiguity surrounding issues of ownership and special interests, it may be difficult for the prosecution to prove their case beyond a reasonable doubt. In some cases, a negotiated settlement may be the best option for all parties involved. Another strategy that can be employed is to build a strong defence case that challenges the prosecution's allegations. This may involve gathering evidence to support the accused's version of events, or using expert testimony to establish issues of ownership and special interest. A skilled criminal defence lawyer can help identify the best strategies to employ in order to achieve a favourable outcome. In conclusion, section 328 of the Criminal Code of Canada presents unique strategic considerations for those involved in criminal law proceedings. These considerations include assessing issues of ownership and special interest, evaluating potential defences, and developing effective strategies to either negotiate a settlement or build a strong case for the defence.