332

Misappropriation of money held under direction

332 (1) Every one commits theft who, having received, either solely or jointly with another person, money or valuable security or a power of attorney for the sale of real or personal property, with a direction that the money or a part of it, or the proceeds or a part of the proceeds of the security or the property shall be applied to a purpose or paid to a person specified in the direction, fraudulently and contrary to the direction applies to any other purpose or pays to any other person the money or proceeds or any part of it.

Effect of entry in account

(2) This section does not apply where a person who receives anything mentioned in subsection (1) and the person from whom he receives it deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, unless the direction is in writing.

Annotations | French

• Section 332
• The actus reus requires that the Crown prove the following elements beyond a reasonable doubt: (1) that the accused received, either solely or jointly, money (or valuable security or a power of attorney); (2) that the accused received this money for the purposes of selling real or personal property; (3) that the accused received a direction to apply this money to a purpose specified in the direction; (4) that the accused instead applied it to a different purpose; and (5) that the accused did so contrary to the direction they were provided (this final element might overlap with the previous element).
• The mens rea requires that the Crown show that in committing the actus reus, the accused misappropriated the money without mistake. The dishonesty is inherent in the offence and arises from an “intentional and unmistaken application of funds to an improper purpose”: R v Skalbania, [1997] 3 SCR 995 at para 6.