Le fait de convertir à son propre usage une carte de crédit que l’accusée sait appartenir à un tiers constitue l’infraction prévue à l’article 342 (1) c) du Code criminel

R. v. Costello, 1982 CanLII 354 (BC CA)

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[3]               Section 301.1 reads as follows:

301.1 (1) Every one who

(a) steals a credit card,

(b) forges or falsifies a credit card,

(c) has in his possession, uses or deals in any other way with a credit card that he knows was obtained

(i) by the commission in Canada of an offence, or

(ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence, or

(d) uses a credit card that he knows has been revoked or cancelled is guilty of

(e) an indictable offence … or

(f) an offence punishable on summary conviction.

The county court judge stated the facts as follows:

The facts are not in dispute. The appellant had rented a house. Several days prior to May 17th, either the appellant or a co-tenant of his found the credit card in question on the street in front of their house. The credit card was taken into the house and placed on a shelf in the kitchen and here it remained until the evening of May 17th. After work on May 17th, the appellant had a few glasses of beer at a bar, and he had more beer to drink when he arrived home with some friends. Later in the evening the appellant and his friends accepted an invitation to meet other friends at the bar at the Four Seasons Hotel. The appellant had sufficient funds for the evening's expenses, however, his friends did not. In the result, the appellant took the card with the intention of using it during the remainder of the evening.

At the hotel he ordered two rounds of drinks. He paid for the first round with the credit card without any difficulty. When he presented the card for the second round, however, the waitress checked the card with American Express. She then notified hotel security, who in turn called the police and the charge was laid.

[4]               The question of law raised on this appeal turns on the meaning of the word obtained in s. 301.1(1)(c). The county court judge interpreted the word in the same way as Judson J. did in R. v. Maroney (1975), 1974 CanLII 19 (SCC), 18 C.C.C. (2d) 257, 49 D.L.R. (3d) 481, [1975] 2 S.C.R. 306 (S.C.C.). In that case a partnership was lawfully in possession of merchandise, subject to a conditional sales agreement. A partner was held to have committed theft when he removed the merchandise, and put it into the possession of the accused Maroney, a third party, who was not a member of the partnership. Judson J. had this to say at p. 258:

My opinion is that the Court of Appeal put too narrow a construction on the word "obtained" in s. 312(1)(a). It is obvious that in the first place, the partnership obtained possession of these goods legally by purchase under the conditional sales agreements, and while the goods were on the premises they were legally in the possession of the partnership. The owners, however, were the holders of the conditional sales agreements. The partnership was not the owner except in a very limited sense. When these goods were removed from the premises with the connivance of one or both of the partners, they were stolen when they crossed the threshold. There were two stages in the "obtaining", and the second stage constituted theft under s. 283(1) of the Code.

[5]               The appellant seeks to distinguish Maroney by adopting what was said by Campbell Co. Ct. J. in R. v. Chartrand (unreported) County Court of Vancouver, September 18, 1980 (CC800617) [summarized 5 W.C.B. 162], and rests his case on that reasoning:

It is obvious that the sole issue in this case is the meaning of the word "obtained". The Crown relies on the judgment in R. v. Maroney (1975), 1974 CanLII 19 (SCC), 18 C.C.C. (2d) 257, 49 D.L.R. (3d) 481, 27 C.R.N.S. 186, a decision of the Supreme Court of Canada. The ratio from that case appears in the [C.R.N.S.] headnote of the report which states, inter alia:

"One who takes possession of property from a thief who steals by converting, has possession of property 'obtained' by the commission of an indictable offence."

The Maroney decision was considered by His Honour Judge Salhany of the County Court of the Judicial District of Waterloo in the case of Poole v. The Queen in an unreported judgment dated October 15, 1979. The situation in the Poole case is almost identical with that in the case before me. His Honour Judge Salhany distinguished the Maroney case on its facts stating as follows:

"However, I do not think that the Maroney assists the respondent. All that decision holds is that when the partner (or partners) assisted in the removal of the goods from his premises and gave it to Maroney, he stole it because ownership rested in the third party subject to his right of possession under the terms of the agreement. The partner had no right to part with possession by giving it to Maroney."

In the case here before me I find myself in complete agreement with the views of His Honour Judge Salhany and can do no better than quote his words as they appear in his judgment at p. 4:

"In my opinion, this case turns on the meaning of the word 'obtain'. According to the Shorter Oxford Dictionary, the word 'obtain' means 'to procure or gain, as a result of purpose and effort; hence generally, to acquire, get'. It is also defined to mean 'to hold; to possess; to occupy'.

"It would appear from this definition that its essence lies in the putting forth of some effort to procure the credit card. Although possession is an integral part of the definition, it is only so in the sense that the act of procurement involves control over the credit card. However, once procured, the act of obtaining ends. In my view, the subsequent unlawful use does not revive the act of obtaining simply because it was unlawful."

I note too, as pointed out by defence counsel, that the Maroney case, supra, was decided before the enactment of s. 301.1 which applies to count 1. This section was obviously enacted to prevent the trafficking in credit cards. There is no doubt that the accused here was wrong in what he did, as he himself admitted on the witness stand. There is also no doubt that there is at least one other charge which the Crown could have laid with respect to the factual situation in this case. Therefore, in all of the circumstances I am satisfied that the accused must be acquitted on both counts.

[6]               With respect, I think that Maroney has settled the meaning of the word "obtained", and it is not open to us to substitute another meaning. Here the credit card was at first innocently obtained, as were the goods in Maroney. When the appellant formed the intention to covert the credit card to his own use the second stage of obtaining was concluded. He had committed theft. Thereafter, he was in possession of a stolen credit card, with the requisite guilty knowledge, and the offence with which he was charged was completed when he used the card. It would be no defence for him to say that he was the thief, for a thief may be guilty of either theft or possession: see R. v. Schultz (1971), 1971 CanLII 1163 (BC CA), 3 C.C.C. (2d) 491 at p. 492, 16 C.R.N.S. 115, [1971] 4 W.W.R. 637 (B.C.C.A.). That was a case involving possession of stolen goods, but I can see no reason why the same principle should not be applied to an offence involving a credit card, where a thief can be convicted of theft under s. 301.1(1)(a) or of possession or use of the card under s-s. (c). It is no defence to say that the theft and the use were closely related in time so long as the user had the requisite guilty knowledge at the time that he used the card.