Saieva v. R., [1982] 1 SCR 897

Supreme Court of Canada

Saieva v. R., [1982] 1 S.C.R. 897

Date: 1982-06-23

Domenic Saieva (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16200.

1981: November 23; 1982: June 23.

Present: Laskin C.J. and Martland, Dickson, Beetz, Estey, Mclntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Theft—Possession of stolen goods—Doctrine of recent possession—No evidence establishing date of the theft—Trial judge’s finding of fact regarding date of theft unreasonable—Charge to jury—Whether trial judge erred in law regarding recency—Criteria to establish recent possession—Criminal Code, R.S.C. 1970, c. C-34 as amended, s. 312(1).

Appellant was charged of illegal possession of a stolen “safety standards certificate” contrary to s. 312(1) of the Criminal Code. The evidence adduced at trial indicated that (1) on June 3, 1977, appellant presented the stolen certificate to a licence bureau and (2) the certificate could have been stolen as far back as 50 to 55 weeks prior to that date. There was no evidence of exactly when the certificate had been stolen. The trial judge, however, after explaining the doctrine of recent possession to the jury, instructed them that if they were satisfied beyond a reasonable doubt that the certificate was stolen on or about June 3, 1977, and that shortly after that theft the certificate was in the possession of the appellant, they could find the appellant guilty. The appellant was convicted and his appeal to the Court of Appeal dismissed. Hence the appeal to this Court.

Held: The appeal should be allowed and a new trial ordered.

The theft need not have happened on or about June 3, 1977, for the possession on that date to be “recent”. Had the jury acquitted, there was reversible error in the trial judge’s charge that the Crown could have invoked successfully as regards recency. There was also, as a matter of law, no evidence upon which the jury could predicate a finding, beyond a reasonable doubt, that the theft had taken place on or about June 3, 1977. The trial judge’s charge in relation to the intricate facts and amounting to non-direction brought about an unneces-

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sary and unreasonable finding of fact by the jury which was itself, as a matter of law, wrong. It was incumbent upon him to assist the jurors in their task of determining the time frame within which they could, as a matter of law, establish the approximate moment of the theft. Here, he should have directed them that, as a question of law, they could not determine the moment of the theft as being more recent than some 50 weeks prior to June 3, 1977. Having done so, he should then have given them the usual instructions as to how “recency” is to be determined.

R. v. Killam (1973), 12 C.C.C. (2d) 114, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing appellant’s appeal from his conviction for possession of stolen property. Appeal allowed.

Charles Ryall, for the appellant.

Bonnie J. Wein, for the respondent.

The judgment of the Court was delivered by

LAMER J.—The appellant was convicted by a jury in the City of Welland of illegal possession of a stolen “Safety Standards Certificate” the property of the Ministry of Transportation and Communications knowing that it had been obtained by theft contrary to s. 312(1) of the Criminal Code. He had also been tried at the same time but acquitted on another count of the same indictment for having uttered a forged document; that count related to the same document. He appealed his conviction to the Court of Appeal for Ontario. That appeal was dismissed without reasons. The appellant now comes to this Court on three grounds.

One of these grounds should in my view succeed and an Order for a new trial should ensue. Given the circumstances of the case, I need not and do not intend to address the other two grounds. I will therefore set out only those facts relevant to that ground which is framed by appellant as follows:

Did the Court of Appeal for Ontario err in law in holding that it was not reversible error on the part of the

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Learned Trial Judge in inviting the jury, in his charge, to consider the Doctrine of Recent Possession in the absence of evidence establishing the date of the theft and, also, in finding that there was sufficient circumstantial evidence establishing the date of theft without providing reasons in terms of days, months, or years?

The facts, which became apparent during the trial, were that the appellant on June 3, 1977 presented a Safety Standards Certificate, No. 2036898, to a licence bureau for the purpose of effecting the transfer of ownership of a motor vehicle from his father to himself. The certificate had been stolen from the owner of a service station, one J.K., who was an authorized agent of the Ministry of Transport and Communications of Ontario for the issuance of such Safety Standards Certificates. The stolen certificate used by the appellant contained forged signatures of qualified inspectors. J.K. became aware of the theft of the certificate in the fall of 1977. There was no evidence of exactly when the certificate had been stolen.

There is evidence that the station was in possession of booklets of certificates since 1974. The booklets were purchased by the station from the Government five at a time. Each booklet contained twenty certificates. As the station proceeded to an average of two inspections a week, each booklet lasted roughly ten weeks, and the batch of five, close to a year. The certificates were numbered and used in order except the occasional occurrence where a certificate would not be completed before one or two consecutively numbered certificates would be; but this would be exceptional, and would happen only when the owner of the automobile would leave his car at the station longer than the time required for the inspection, usually a day, and a subsequent inspection on another car would be made and the corresponding certificate completed. In any event, this would have no bearing on the rate at which the booklets would be used.

It was not until September 1977 that the operator of the station noticed that four certificates were missing from the book currently in use, that containing certificates numbered 3264861 to

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3264880. An investigation was carried out in November and other certificates were found missing as far back as four previously used booklets. It is difficult, upon a mere reading of the transcript, and I imagine even more so a mere hearing of the evidence, to grasp with some clarity the chronology of events, as the various booklets were not introduced into evidence in an order that followed the chronology of their probable use at the station, and, more important, of their arrival at the station in batches.For convenience, I have numbered as 1 to 7 the booklets put in evidence by the Crown and I have indicated the booklets from which there were certificates stolen.

The evidence adduced at trial establishes that there were 16 stolen certificate forms, one of which is the certificate bearing number 2036898, the certificate relevant to this case.

As a first observation, one can see that the stolen certificate in possession of appellant on the 3rd of June was from a booklet that was in use in

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the weeks of May and June of 1977. Furthermore, it is only in November that, following J.K.’s discovering in September that four certificates had been stolen from booklet No. 7, the Government investigation revealed the disappearance of the other certificates in booklets that had been previously in use as far back as some 45 to 50 weeks prior to September, when considering booklet No. 3, that from which the certificate in this case was stolen.

It is therefore, in my view, evident that, putting matters at best for the Crown’s case, the only certainty one can reasonably have as regards the time-frame during which the theft could have occurred is that it could have happened any time as of the moment of the booklet’s arrival at the station and the moment that certificate would normally come up for use.

The certificate would normally have been used, considering its number, not long after the certificate issued on the 30th of June. In any event we know that the theft must of necessity have occurred on or prior to the 3rd of June, for it was on the 3rd of June tendered by appellant to the licence bureau.

We do not know, at least the evidence does not tell us so, when booklet No. 3 arrived at the station. So the only time limit one can reasonably put to the time-frame running prior to the 3rd of June during which the theft could have occurred is the approximate time of arrival at the station of booklet No. 3. As the only evidence on that point is the fact that the booklets arrived in batches of five coupled to the frequency of the inspections, certificate 2036898 that was in possession of the appellant on the 3rd of June 1977 could have been stolen as far back as 50 to 55 weeks prior to that date. Indeed no one said in Court that booklet No. 1 (2036841 to 2036860) was the first booklet of the batch of five that booklet No. 3 was part of, though one might be tempted to assume from the numbers on the certificates of booklets No. 1 to No. 6 that this would be so, and that the theft could have happened some 30 to 35 weeks earlier. But the accused is entitled to the benefit of the doubt, and the determination of the recency of his possession of the stolen certificate must be in

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regard of a theft that might have happened 50 to 55 weeks earlier.

The trial judge’s charge included instructions on the doctrine of recent possession. He clearly and very accurately explained to the jury the doctrine save that he did not in any way explain that it was incumbent upon them to determine, granting the accused the benefit of any reasonable doubt, the moment at which the theft took place and then apply to that finding, and to the other factual findings they will have made, the criteria that are used to establish whether a possession is “recent”, which are, having regard to the nature of the object, “its rareness, the readiness in which it can, and is likely to, pass from hand to hand, the ease of its identification and the likelihood of transferability” (per Bull J.A., in R. v. Killam (1973), 12 C.C.C. (2d) 114 (B.C.C.A.) at p. 131) and such other factors.

What the trial judge told them concerning “recency” is contained in the following passage of his charge:

There is a doctrine which the Crown referred to as the Doctrine of Recent Possession and, on a charge of having possession of property, knowing that it was obtained by the commission in Canada of an offence punishable by indictment, if it is proved that the property has been stolen, and that, shortly after the theft, the property or the stolen property was in possession of the accused person, such possession of stolen property by the accused, if it’s unexplained, raises a presumption of fact; not of law, but a presumption of fact, that the accused person committed the offence of having possession of that stolen property, knowing that it was stolen. And, upon such unexplained possession, a jury may, but not must, find the accused person guilty. Now, I reiterate that you may, not necessarily must, find the person guilty in the absence of an explanation.

…

Now, if, therefore, after considering all of the evidence and the arguments of counsel and my charge, you come to the conclusion that the prosecution has proved to your satisfaction, beyond a reasonable doubt, that the certificate was stolen from the place alleged on the Third of June, 1977, and, shortly after that theft, the certificate was in the possession of the accused, you may, although not must, in the absence of a reasonable

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explanation, find the accused guilty of the offence with which he is charged.

…

So, on the charge of possession, it is incumbent upon the Crown to prove, firstly, that that certificate was stolen and, secondly, that it was stolen on or about the Third day of June, 1977, and, uh, that it was in the possession of the accused and the accused knew that it was stolen. Those are the three ingredients that the Crown must prove.

The jury then put to the judge the following question:

If the accused does not offer a reasonable explanation of where he obtained the Safety Certificate, in law, give us an explanation of whether or not it can, may or should be assumed that the accused is guilty as charged.

Following this question, the trial judge reiterated what he had said on the doctrine generally and, as regards recency, then said the following:

Now, with regard to the second count, of possession, let me just read it to you exactly as I gave it to you because I am very careful not to ad-lib, it is too important, about the doctrine of recent possession.

“On a charge of having possession of property, knowing that it was obtained by the commission in Canada of an offence punishable by indictment, if it is proved that the property has been stolen,”

and you don’t have to worry about that: we know that the certificate was stolen. I don’t think the defense serviously [sic] denys [sic] the fact that the certificate was stolen.

“…And that, shortly after the theft, the stolen property was in the possession of the accused person, such person…”

Had the jury acquitted, there was, in my view, reversible error in this charge that the Crown could have invoked successfully as regards recency. Indeed the theft need not have happened on or about the 3rd day of June 1977 for the possession on that date to be “recent”. But the jury did not acquit, and therefore the question is whether appellant can invoke an error which in effect appears to have resulted in the judge setting a higher burden of proof on the Crown as a prerequisite to the doctrine applying? The answer

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would clearly be no, were it not for the fact that I find, as a matter of law, that there is no evidence upon which the jury could predicate a finding that, beyond a reasonable doubt, the theft had taken place on or about the 3rd day of June 1977. That finding, as I have indicated, cannot be supported by the evidence. Whilst the initial error of law as regards the Crown’s burden of proof cannot itself inure to the benefit of the accused, other shortcomings of the judge’s charge in relation to the intricate facts and amounting to non-direction brought about an unnecessary and unreasonable finding of fact by the jury which was itself, as a matter of law, wrong; this latter error should inure to the benefit of the appellant by causing the conviction to be quashed, whilst the initial error should inure to the benefit of the respondent by this appeal resulting not in an acquittal but in an order for a new trial, for I am of the view that, though there was no evidence upon which the jury could find that the theft had taken place on or about the 3rd of June 1977, there was nonetheless evidence upon which the jury could well have reasonably found the possession to be recent.

Though the trial was a short one, the facts were very tricky, as illustrated by the few facts I refer to in this opinion. It must be remembered that evidence was being adduced in support not only of the charge of possession but also of a charge of uttering a forged document, for the latter of which the accused was acquitted. On this charge recency of possession was also an important factor in determining whether the appellant knew that the document he was using was a forgery. But the relevant evidence to that end was quite different as it related not so much to the moment of the theft but rather and mainly to the moment at which the forgery could not have occurred without the knowledge of the accused. I need not consider the matter in detail as the verdict of acquittal on that count is not under appeal. Be it sufficient that I illustrate the matter by the following. The certificate tendered by the appellant contained on the

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face of it the following notice which was in large print:

NOTICE:

THE MINISTRY CANNOT TRANSFER A PERMIT ON THE BASIS OF A CERTIFICATE THAT WAS MADE MORE THAN 36 DAYS BEFORE THE DATE OF APPLICATION.

It also contained an odometer reading indicating 11,983, probably miles, as the vehicle was a 1971 model. These two facts are very relevant in relation to the time span during which the certificate could not have been forged without the appellant knowing it, but of very little, if of any, relevance in determining the moment of the theft. Relevant to both charges, recency of possession by appellant was to be computed for one charge (uttering) in relation to the moment it could or could not have been forged without his knowledge and, for the other (possession), in relation to the moment of the theft.

The trial judge did not in any way relate the facts to those different issues and warn the jury of the different time factors applicable to each of the two counts; nor did he refer to the limitation, which I have alluded to earlier, that one must of necessity put to the probative value of the evidence when establishing the moment of the theft of the certificate. All he said of the facts is the following:

Now, I don’t think, ladies and gentlemen, that I have to review the evidence. The evidence is quite clear.

Mr. Kelly gave evidence that he owned this inspection station, that he noticed that there were some certificates taken from the book. He reported it to the inspector who came down. Mr. Kelly’s evidence shows that, I think sufficiently, that the instrument that we are concerned about here, Safety Standards Certificate #6898, was stolen from his place of business.

Mr. Aliberti and Mr. Turner say that the signatures on that certificate are not theirs. You recall it was I think either Mr. Turner or Mr. Aliberti said that it couldn’t have been at the Canadian Tire Station because at that time they were not in business and it couldn’t

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have been at A.J. Hecker’s because he had ceased to do business before the First of June, and that the Canadian Tire Store didn’t start its inspection until sometime around the Twelfth of June.

You will recall the evidence of the lady who owned the agency where licenses are transferred, that the accused came into her premises and had the car changed over, that he signed his name as purchaser. The accused doesn’t deny this because he says in his statement that he went to her place with the Safety Standards Certificate and got a transfer of the Toyota car, using this Safety Standards Certificate, from his father’s name into his. The issue still remains, with regard to Count #2, whether or not he knew that that was a stolen Safety Standards Certificate.

With respect, I am of the view that it was incumbent upon the trial judge to assist the jurors in their difficult task by determining the timeframe within which they could, as a matter of law, establish the approximate moment of the theft; in fact, given the particular facts of this case and the fact that the trial was proceeding on two counts, he should have directed them that, as a question of law, they could not determine the moment of the theft as being more recent than some 50 weeks prior to the 3rd of June, 1977. Having done so he should then have given them the usual instructions as to how “recency” is to be determined.

I am not in the least unmindful of the fact that the trial judge’s task was not made the easier by the nature of the evidence tendered and the manner in which it was adduced and argued. But I am nevertheless unable to come to the conclusion that, had he addressed those issues as I think he should have, a jury could not reasonably have acquitted.

I would allow the appeal, quash the conviction and order a new trial.

Appeal allowed and new trial ordered.

Solicitor for the appellant: Charles Ryall, Niagara Falls.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.