If you just look up ‘theft,’ the bulk of the search results will be about s. 322 of the Criminal Code. That is the criminal code provision for theft that any police officer is likely to be familiar with. Section 322[1] is the general, catch-all provision that essentially says stealing, in all of its forms, is not allowed.
Section 322(1) reads:
Everyone 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
- 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;
- to pledge it or deposit it as security;
- 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
- 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.
If someone pleads guilty to theft or is convicted of theft, they are sentenced under section 334 of the Code.[2]
Recalling that a Crown Attorney will not pursue a criminal charge unless a conviction is more likely than not, each component of the offence must be present for a person to be successfully charged and prosecuted for theft as defined in s. 322.[3] This blog breaks down theft under s. 322 into four ‘elements’ that must be met:
Taking or Converting
First, the person must take or convert something. The wording of s. 322 is very broad, in terms of what can be stolen: “anything.” A victim should not be dismissed because their loss doesn’t closely resemble stolen jewellery, cash, or any other cliché.
The Criminal Code deliberately expands English common law larceny offences. It used to be that if someone already had legal possession of something, they could not technically “steal” the property.[4] Now, s. 328 of the Criminal Code explicitly clarifies that taking or converting something can be theft, even in many situations where the perpetrator owns the property in whole or part, or has some other interest in the property.[5] A court neatly summarised the concept in Lefebvre v. R.: “It does not matter that the accused and the complainant both had an interest in the property that the accused is charged with stealing. One person with an interest in something can steal from another with a similar or different interest in that property.”[6]
It can be theft even when someone does not take property, but still ‘converts’ property by using it for themselves.[7] The Supreme Court of Canada has defined conversion 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.”[8] The Honourable Justice R.E. Nation of the Alberta King’s Bench has explained the concept in more plain language: “Conversion means to deal with an object in a way that is inconsistent with the rights of the true owner of that thing. Even if one person is lawfully in possession of another person’s property, to do something with that property contrary to the terms on which the person got it in the first place would be to convert that property to the use of the person who converted it or to the use of someone else.”[9] For example, someone is the mistaken recipient of money and then knowingly withdraws that money for their own use, they converted it and can be guilty of theft.[10]
Additionally, a person doesn’t need to have completed taking property to be charged with theft; “theft” has already happened once someone moves property, causes it to be moved, or begins to cause the property to become movable, if that is done with the intent to steal anything.[11]
Acting Fraudulently
Second, the person must be acting fraudulently. Section 322(3) clarifies that “A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.” So, the legislation says that fraudulence does not equal secrecy.
Caselaw clarifies what is fraudulent. The Supreme Court of Canada in R. v. Lafrance held that the taking something is made fraudulent when you do so intentionally and under no mistake.[12] The Court also stated that taking without colour of right and with intent to deprive the owner temporarily or absolutely constitutes the requisite fraudulent element. The Supreme Court of Canada has stood by this interpretation, concluding similarly years later that “intentional misappropriation, without mistake, suffices to establish mens rea under s. 332(1)… the dishonesty inherent in the offence lies in the intentional and unmistaken application of funds to an improper purpose.”[13]
Acting without Colour of Right
Third, the person must be acting without the colour of right. The term “colour of right” refers to an honest belief in a proprietary or possessory right to the thing, or an honest belief in a state of facts which, if it existed, would justify or excuse the act done.[14]
Intent
The fourth element considers the perpetrator’s intent. Intent is not motivation, but rather something closer to the plan for the property or the natural consequences of that plan. For example, in the theft case R. v. Neve, the accused took clothes to humiliate the complainant. The Alberta Court of Appeal said her ‘motivation’ to humiliate the complainant was irrelevant to the charge, as what mattered was the accused’s intention to deprive the complainant of their clothes for a period of time, however briefly.[15]
Conviction under s. 322 for fraudulent taking or conversion of property requires any one or more of four specified intents:
The first intent element includes both temporarily and permanently depriving someone of the thing that was taken, or of either a property or an interest in that thing. It is noteworthy that it is a crime to deprive a victim of the thing taken or property and interest within. It would seem to include, for example, items in a house, or more abstract concepts like dividend payments.
A second criminal intent is pledging or depositing the thing as security. For example, it is apparently criminal theft if a trustee uses trust property to get a secured mortgage; this is true even if nobody is deprived of the property.
The third intent is parting with the thing in a way that the accused may not be able to do whatever they said they would do to get it back. An apparent example would be placing an item in a pawn shop, when they may not have the money to buy it back. There is not a lot of caselaw on this intent. Parting with the property likely also deprives someone of the property, which is more straightforward to prove.
R v Simmonds – eating a restaurant meal constitutes dealing with food so it cannot be restored; R v Milne (SCC) – spending money/converting funds so they cannot be restored; R v Harmon – withdrawing and spending bank funds; consuming, destroying, or altering property falls under this provision
Putting it all Together
R. v. Saunders is an older case that illustrates one of many ways section 322 can be relevant in trusts, estates, and elder law. Between 1997 and 1998, a long-time lawyer was acting as the executor of an estate and unlawfully stole from the estate.[16] Saunders withdrew funds from the estate to pay for his and his daughter’s defaulted mortgages. He at some point documented his withdrawals and pledged to repay the funds with interest, through promissory notes. The court noted that although Saunders probably intended to replace the funds, that does not eliminate the question of theft. Based on circumstantial evidence, including Saunder’s conduct following a civil trial on the issue, the Court found Saunders did not honestly believe he had the right to use the estate’s money.
The Crown in R. v. Saunders secured a conviction by showing all four elements of theft under s. 322:
- Saunders converted money belonging to the estate by using it to benefit himself and his family;
- Saunders was fraudulent because he intentionally and without mistake converted the money;
- Saunders acted without the colour of right, based on circumstantial evidence; and
- Saunders intended to deprive the estate of the funds, at least on a temporary basis.
R. v. Saunders is, of all the cases reviewed for this blog, the one I would most recommend reading. The case is a perfect example of charges being laid and secured despite the accused having legal possession of the property, and the complainant being an estate.
—
[1] Criminal Code (R.S.C., 1985, c. C-46), § 322.
[2] Criminal Code (R.S.C., 1985, c. C-46), § 334.
[3] D. 3: Charge Screening | Crown Prosecution Manual | ontario.ca
[4] Criminal law: theft and fraud pp. 40-41
[5] Criminal Code (R.S.C., 1985, c. C-46), § 328.
[6] Lefebvre v. R. 1991 CarswellQue 807, p 104.
[7] R. v. Milne, 1992 CanLII 86 (SCC), [1992] 1 SCR 697, https://canlii.ca/t/1fsf4
[8] R. v. Stewart, 1988 CanLII 86 (SCC), [1988] 1 SCR 963, <https://canlii.ca/t/1ftdt>
[9] R v McMorran and Kalabalikis, 2024 ABKB 557 (CanLII), https://canlii.ca/t/k6xr8, p. 104.
[10] R v. Milne 29-30.
[11] Criminal Code (R.S.C., 1985, c. C-46), § 322(2).
[12] Lafrance v. R., 1973 CanLII 35 (SCC), [1975] 2 SCR 201, <https://Canlii.ca/t/1twz9>, ¶ 17.
[13] R. v. Skalbania, 1997 CanLII 337 (SCC), [1997] 3 SCR 995, <https://canlii.ca/t/1fqxt>, p. 6.
[14] R. v. Simpson, 2015 SCC 40 (CanLII), [2015] 2 SCR 827, <https://Canlii.ca/t/Gkdsj>, ¶ 31.
[15] R. v. Neve, 1999 ABCA 206 (CanLII), <https://canlii.ca/t/5s63>, p 34.
[16] R. v. Saunders (E.R.), 2000 CanLII 50630 (NS SC), https://canlii.ca/t/gc8vc, aff’d R. v. Saunders, 2001 NSCA 87 (CanLII), <https://canlii.ca/t/4v5v>
Written by: Jaclyn Holdsworth
Posted on: September 22, 2026
Categories: Commentary, Elder Law, WEL Newsletter
If you just look up ‘theft,’ the bulk of the search results will be about s. 322 of the Criminal Code. That is the criminal code provision for theft that any police officer is likely to be familiar with. Section 322[1] is the general, catch-all provision that essentially says stealing, in all of its forms, is not allowed.
Section 322(1) reads:
Everyone 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
If someone pleads guilty to theft or is convicted of theft, they are sentenced under section 334 of the Code.[2]
Recalling that a Crown Attorney will not pursue a criminal charge unless a conviction is more likely than not, each component of the offence must be present for a person to be successfully charged and prosecuted for theft as defined in s. 322.[3] This blog breaks down theft under s. 322 into four ‘elements’ that must be met:
Taking or Converting
First, the person must take or convert something. The wording of s. 322 is very broad, in terms of what can be stolen: “anything.” A victim should not be dismissed because their loss doesn’t closely resemble stolen jewellery, cash, or any other cliché.
The Criminal Code deliberately expands English common law larceny offences. It used to be that if someone already had legal possession of something, they could not technically “steal” the property.[4] Now, s. 328 of the Criminal Code explicitly clarifies that taking or converting something can be theft, even in many situations where the perpetrator owns the property in whole or part, or has some other interest in the property.[5] A court neatly summarised the concept in Lefebvre v. R.: “It does not matter that the accused and the complainant both had an interest in the property that the accused is charged with stealing. One person with an interest in something can steal from another with a similar or different interest in that property.”[6]
It can be theft even when someone does not take property, but still ‘converts’ property by using it for themselves.[7] The Supreme Court of Canada has defined conversion 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.”[8] The Honourable Justice R.E. Nation of the Alberta King’s Bench has explained the concept in more plain language: “Conversion means to deal with an object in a way that is inconsistent with the rights of the true owner of that thing. Even if one person is lawfully in possession of another person’s property, to do something with that property contrary to the terms on which the person got it in the first place would be to convert that property to the use of the person who converted it or to the use of someone else.”[9] For example, someone is the mistaken recipient of money and then knowingly withdraws that money for their own use, they converted it and can be guilty of theft.[10]
Additionally, a person doesn’t need to have completed taking property to be charged with theft; “theft” has already happened once someone moves property, causes it to be moved, or begins to cause the property to become movable, if that is done with the intent to steal anything.[11]
Acting Fraudulently
Second, the person must be acting fraudulently. Section 322(3) clarifies that “A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.” So, the legislation says that fraudulence does not equal secrecy.
Caselaw clarifies what is fraudulent. The Supreme Court of Canada in R. v. Lafrance held that the taking something is made fraudulent when you do so intentionally and under no mistake.[12] The Court also stated that taking without colour of right and with intent to deprive the owner temporarily or absolutely constitutes the requisite fraudulent element. The Supreme Court of Canada has stood by this interpretation, concluding similarly years later that “intentional misappropriation, without mistake, suffices to establish mens rea under s. 332(1)… the dishonesty inherent in the offence lies in the intentional and unmistaken application of funds to an improper purpose.”[13]
Acting without Colour of Right
Third, the person must be acting without the colour of right. The term “colour of right” refers to an honest belief in a proprietary or possessory right to the thing, or an honest belief in a state of facts which, if it existed, would justify or excuse the act done.[14]
Intent
The fourth element considers the perpetrator’s intent. Intent is not motivation, but rather something closer to the plan for the property or the natural consequences of that plan. For example, in the theft case R. v. Neve, the accused took clothes to humiliate the complainant. The Alberta Court of Appeal said her ‘motivation’ to humiliate the complainant was irrelevant to the charge, as what mattered was the accused’s intention to deprive the complainant of their clothes for a period of time, however briefly.[15]
Conviction under s. 322 for fraudulent taking or conversion of property requires any one or more of four specified intents:
The first intent element includes both temporarily and permanently depriving someone of the thing that was taken, or of either a property or an interest in that thing. It is noteworthy that it is a crime to deprive a victim of the thing taken or property and interest within. It would seem to include, for example, items in a house, or more abstract concepts like dividend payments.
A second criminal intent is pledging or depositing the thing as security. For example, it is apparently criminal theft if a trustee uses trust property to get a secured mortgage; this is true even if nobody is deprived of the property.
The third intent is parting with the thing in a way that the accused may not be able to do whatever they said they would do to get it back. An apparent example would be placing an item in a pawn shop, when they may not have the money to buy it back. There is not a lot of caselaw on this intent. Parting with the property likely also deprives someone of the property, which is more straightforward to prove.
R v Simmonds – eating a restaurant meal constitutes dealing with food so it cannot be restored; R v Milne (SCC) – spending money/converting funds so they cannot be restored; R v Harmon – withdrawing and spending bank funds; consuming, destroying, or altering property falls under this provision
Putting it all Together
R. v. Saunders is an older case that illustrates one of many ways section 322 can be relevant in trusts, estates, and elder law. Between 1997 and 1998, a long-time lawyer was acting as the executor of an estate and unlawfully stole from the estate.[16] Saunders withdrew funds from the estate to pay for his and his daughter’s defaulted mortgages. He at some point documented his withdrawals and pledged to repay the funds with interest, through promissory notes. The court noted that although Saunders probably intended to replace the funds, that does not eliminate the question of theft. Based on circumstantial evidence, including Saunder’s conduct following a civil trial on the issue, the Court found Saunders did not honestly believe he had the right to use the estate’s money.
The Crown in R. v. Saunders secured a conviction by showing all four elements of theft under s. 322:
R. v. Saunders is, of all the cases reviewed for this blog, the one I would most recommend reading. The case is a perfect example of charges being laid and secured despite the accused having legal possession of the property, and the complainant being an estate.
—
[1] Criminal Code (R.S.C., 1985, c. C-46), § 322.
[2] Criminal Code (R.S.C., 1985, c. C-46), § 334.
[3] D. 3: Charge Screening | Crown Prosecution Manual | ontario.ca
[4] Criminal law: theft and fraud pp. 40-41
[5] Criminal Code (R.S.C., 1985, c. C-46), § 328.
[6] Lefebvre v. R. 1991 CarswellQue 807, p 104.
[7] R. v. Milne, 1992 CanLII 86 (SCC), [1992] 1 SCR 697, https://canlii.ca/t/1fsf4
[8] R. v. Stewart, 1988 CanLII 86 (SCC), [1988] 1 SCR 963, <https://canlii.ca/t/1ftdt>
[9] R v McMorran and Kalabalikis, 2024 ABKB 557 (CanLII), https://canlii.ca/t/k6xr8, p. 104.
[10] R v. Milne 29-30.
[11] Criminal Code (R.S.C., 1985, c. C-46), § 322(2).
[12] Lafrance v. R., 1973 CanLII 35 (SCC), [1975] 2 SCR 201, <https://Canlii.ca/t/1twz9>, ¶ 17.
[13] R. v. Skalbania, 1997 CanLII 337 (SCC), [1997] 3 SCR 995, <https://canlii.ca/t/1fqxt>, p. 6.
[14] R. v. Simpson, 2015 SCC 40 (CanLII), [2015] 2 SCR 827, <https://Canlii.ca/t/Gkdsj>, ¶ 31.
[15] R. v. Neve, 1999 ABCA 206 (CanLII), <https://canlii.ca/t/5s63>, p 34.
[16] R. v. Saunders (E.R.), 2000 CanLII 50630 (NS SC), https://canlii.ca/t/gc8vc, aff’d R. v. Saunders, 2001 NSCA 87 (CanLII), <https://canlii.ca/t/4v5v>
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