Section 4 Of Cabbages and Kings and Stamps!: Episode Five of the Ideablawg Podcast on the Criminal Code of Canada

The following is the text of episode 5 of the Ideablawg Podcasts on the Criminal Code  of Canada. The podcast is found at the end of the text. Enjoy!

"The time has come," the Walrus said,
 "To talk of many things:
 Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."

- Lewis Carroll from The Walrus and The Carpenter

Welcome to Episode Five of the Ideablawg Podcasts on the Criminal Code of Canada. Today’s episode is a kickoff as we begin to tackle the potpourri we call section 4 – a housekeeping section, which tidies up the various loose ends of criminal law. It brings to mind Lewis Carroll’s poem The Walrus and the Carpenter and particularly the excerpt I quoted at the start of the podcast. But instead of cabbages and kings, we will chat about postcards, stamps, valuable securities, chattels, possession and joint possession, expressions, sexual intercourse, service and notification, and attendance.

But no oysters – theft of oyster beds will come much later down the road – probably next year - when we discuss section 323.

The task today will involve a discussion of section 4 in subsection (1) and (2), and remember we are in Part I of the Code called the General Part. These subsections, as I said, tidy up some of the definitions we encountered in s. 2. Section 4 (1) reads as follows:

For the purposes of this Act, a postal card or stamp referred to in paragraph (c) of the definition “property” in section 2 shall be deemed to be a chattel and to be equal in value to the amount of the postage, rate or duty expressed on its face.

We see a few words in this paragraph that call out for definition. We are told the section is referring to the definition of “property” under that section 2 definition, but the paragraph really begs the question because now of course we also want to know the definition of “postal card” and “stamp” and “chattel.”

First let’s take a look at s. 2(c) “property.” It says:

any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;

That is of course important to know because the term “property” is used throughout the Code. Indeed a simple word search reveals that the word “property” appears in 161 sections of the Code. Take note that the word “property” is not found under s.322, which is the offence of theft, as the crime involves the taking of “anything, whether animate or inanimate.” Property, as defined under s. 2 is much more restrictive, as the definition in (a) and (b) actually refers to itself - “property.” It is only (c) which gives a concrete example of what property may be – postal cards, postage stamp or other stamp issued by the federal or provincial governments.

However, a word of caution: case law has considered the seemingly broad actus reus or prohibited act in the theft section and has overlaid a concept of property. Thus, in the 1988 Supreme Court of Canada Stewart case, confidential information was not considered “anything” in accordance with the theft section. Even so, as explained in the SCC 1992 Milne case, the criminal law concept of property does differ from the civil law, just as the purpose of criminal law differs from the purpose of civil law. More on this when we get to that section.

So s. 4(1) is adding onto that (c) definition – clarifying it for us – by advising us that “postal cards, postage stamp or other stamp” is a chattel with a value equal to the amount expressed on its face. So if you have a stamp for 5 cents its value is 5 cents. Now, that may be a problem as I now purchase stamps with no number value but with a “p” embossed on a nice red maple leaf placed in the stamp’s corner, which, so the post office assures me, means the stamp is “permanent” and can be used anytime as it is worth the going rate no matter when it is used or when it was bought. The other problem is that a 5 cent stamp may actually be a rare stamp and worth much more than the face value. The offender may be charged with theft but which punishment section applies under s. 334? Is it theft of property valued over $5000, which is an indictable offence and punishable by a maximum of ten years? Or is the stamp valued under $5000, which is a summary conviction offence with a maximum of eighteen months imprisonment?

To answer that question, we need to look at the definition of “stamp.” “Stamp” is only defined under the counterfeit stamp section 376 as “an impressed or adhesive stamp used for the purpose of revenue by the government of Canada or a province or by the government of a state other than Canada.” Not a very helpful definition for the police who want to charge the thief with the theft of the priceless 5 cent stamp, which is worth over $5000 dollars.

The next question is: what is a chattel and why does this section 4(1) insist on deeming the post card and/or stamp as one?  A chattel is an item of personal property, either animate or inanimate, which is moveable as opposed to real property, which includes land and improvements, which is not moveable. For example, when you purchase a house, which is real property, the items inside the house tend to be chattels, like the furniture, unless it is affixed to the house like the glass fireplace doors. Those items affixed to the real property stay and those, which are moveable, the chattels, usually go with the seller unless the item is specifically referred to in the purchase agreement. What does this mean for our postal card and stamp? It means these items are personal property even though they are government issued. Also they are moveable and thus chattels.

Onto s. 4(2) for which the marginal note explains is on “value of valuable security.” This subsection helps us determine the value of a valuable security, where value is material, in the context of the Criminal Code by expanding on the definition as found under section 2. So the purpose of this subsection is similar to subsection (1). Before I read this subsection, let’s go to the section 2 definition that reads as follows:

“valuable security” includes

            (a) an order, exchequer acquittance or other security that entitles or evidences the title of any perso

(i) to a share or interest in a public stock or fund or in any fund of a body corporate, company or society, or

(ii) to a deposit in a financial institution,

(b) any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money,

(c) a document of title to lands or goods wherever situated,

(d) a stamp or writing that secures or evidences title to or an interest in a chattel personal, or that evidences delivery of a chattel personal, and

(e) a release, receipt, discharge or other instrument evidencing payment of money;

 Section 4 (2) further defines “valuable security” as:

  (a) where the valuable security is one mentioned in paragraph (a) or (b) of the definition “valuable security” in section 2, the value is the value of the share, interest, deposit or unpaid money, as the case may be, that is secured by the valuable security; 

(b) where the valuable security is one mentioned in paragraph (c) or (d) of the definition “valuable security” in section 2, the value is the value of the lands, goods, chattel personal or interest in the chattel personal, as the case may be; and 

(c) where the valuable security is one mentioned in paragraph (e) of the definition “valuable security” in section 2, the value is the amount of money that has been paid.

How ironic that the purpose of this subsection is to clarify the intrinsic value of the security as opposed to subsection 1, which speaks only of face value. Of course this kind of clarity is required as the valuable security may be a deed to property, which is a document showing land ownership, and is therefore merely a representation of the actual property. Thus, the deed itself is a piece of paper with very little value but it represents much greater value in accordance with the value of the actual land.

For those of you wondering what “exchequer acquittance” means, the term comes to us from English law, in fact I found a similar definition of “valuable security” in the Irish Larceny Act 1861. The “Exchequer” is the Royal Treasury. Originally, the Exchequer was also a Court of Law concerned with revenue, like our Tax Court, but later merged with the then King’s Bench. As a government department, the Exchequer was in charge of the national revenue of the United Kingdom. An “acquittance” is a document, which acquits or discharges an obligation and acts as a “receipt in full.” So an “exchequer acquittance” is a receipt for payment of revenue to the government. Clearly, the relevancy of this term today is questionable. Just another example of how our Criminal Code needs to be streamlined and updated.

On that note, I will end this podcast with Shakespeare’s Henry the IV, Part I Act 3 Scene 3 and an exchange between Sir John Falstaff and the future Henry V or as he was known then, Prince Hal, wherein they discuss Falstaff’s bumbled robbery and the positive resolution of it at court. By the way, as an aside, that is a Shakespeare aside, the PBS Hollow Crown series presenting the history plays of Richard II, Henry IV Part 1 and Part 2, and Henry V is outstanding and very worthwhile to watch. In any event, Hal then boasts “I am good friends with my father and may do any thing.” Without skipping a beat, Falstaff urges the Prince to “Rob me the exchequer the first thing thou doest, and do it with unwashed hands too.”

Thank you and come back next time when we continue our discussion of section 4 of the Criminal Code and whether or not possession is really nine-tenths of the law.

Episode 5 Section 4 Of cabbages and Kings and Stamps!