Hewson v. R., [1979] 2 SCR 82

Supreme Court of Canada

Hewson v. R., [1979] 2 S.C.R. 82

Date: 1978-10-17

Jon Hewson (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1978: February 7; 1978: October 17.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Theft and possession—Recent possession—Evidence of similar acts—Admissibility—Evidence of previous conviction under appeal—Defences—Res judicata—Criminal code, s. 318—Canada Evidence Act, R.S.C. 1970, c. E-10, s.12.

Appellant was charged with (1) breaking, entering and theft at premises of Allan Crawford and Associates Limited in Mississauga (2) possession of electronic equipment and computer parts of a value exceeding $200, knowing that they were obtained by the commission in Canada of an offence punishable by indictment, namely theft, and (3) unlawful possession of a computer and a teletype machine contrary to s. 312(1)(b) of the Criminal Code. The electronic equipment and computer parts were allegedly stolen by appellant from Allan Crawford and Associates Ltd. by whom he had been employed prior to his discharge. The computer and teletype machine were allegedly stolen from a company in the United States with whom appellant had been employed and although he was not charged with the theft of the goods the Crown case was founded on evidence from which it could be inferred that he had stolen them. Appellant was convicted on counts 1 and 3 and acquitted on count 2. The Court of Appeal dismissed his appeal without written reasons. Leave to appeal further was granted on four questions namely (first) whether the trial judge should have charged the jury on the doctrine of recent possession, (second) whether appellant was prejudiced by the improper admission of similar fact evidence, (third) whether appellant was prejudiced by the improper admission of a previous conviction which was under appeal and subsequently set aside and (fourth) whether there was lack of direction by the trial judge on the explanations of appellant.

Held (Laskin C.J. and Spence, Dickson and Estey JJ. dissenting): The appeal should be dismissed.

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Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: Since the case for the prosecution on the counts of unlawful possession rested upon evidence that the appellant had in fact stolen the property and the Crown did not purport to rely upon the doctrine of recent possession but rather sought to prove that the goods had been stolen by appellant, recent possession was not squarely in issue and the judge was not bound to direct the jury to the doctrine. The jury having found the appellant guilty of theft (count 1) quite properly found him not guilty of unlawful possession of the same goods (count 2). As to count 3 the judge repeatedly referred to the doctrine of reasonable doubt as to whether appellant had an honest belief in his right to retain the goods.

As to the second question the evidence of similar facts introduced was admissible to show the possession by the appellant of the goods was not innocent. The judge properly made it clear to the jury that the similar fact evidence did not apply to the theft libelled in count 1.

There has been no judicial determination in Canada on the right to adduce evidence of a conviction under appeal. Appellant referred to a number of American authorities to support his contention that the conviction in question, being under appeal, was inadmissible but the preponderance of judicial opinion seems to support the view that evidence of such a conviction is indeed admissible notwithstanding a pending appeal. The fact that the appeal against the conviction here at issue was subsequently allowed and a new trial directed cannot affect the admissibility of the evidence respecting it.

Per Laskin C.J. and Dickson, Spence and Estey JJ. dissenting: While appellant’s appeal as to the admission of similar fact evidence cannot be supported in reference to count 3 and its application to count 2 is irrelevant in view of the verdict of not guilty, the statement made by the trial judge that this similar fact evidence was admissible on counts 2 and 3 only was made in the absence of the jury. In her address, the judge failed to make any detailed application of the evidence to each count or counts. Failure to exclude this similar fact evidence from the consideration of appellant’s guilt on the count of theft constituted misdirection as also did failure to charge the jury on the doctrine of recent possession, whether or not the Crown purported to rely upon the doctrine.

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Further where an appeal is pending aginst a previous conviction it is not proper to examine the accused on that conviction [Campbell v. U.S., 176 F. (2d) 45]. Moreover in this case the permitting of such evidence was particularly damaging and, even if the evidence was correctly admitted, the trial judge should have made it very clear in her charge that if this accused had not, in law, been properly convicted, then the evidentiary value in regard to his credibility was nil. Failure so to do amounted to further misdirection.

[R. v. Schama and Abramovitch (1914), 11 Cr.App.R. 45; Richler v. The King, [1939] S.C.R. 101; Tremblay v. The Queen, [1969] S.C.R. 431; R. v. Newton, [1977] 1 S.C.R. 399; R. v. Hart, [1973] 1 W.W.R. 244; R. v. Siggins, [1960] O.R. 284; Makin v. A.-G. for New South Wales, [1894] A.C. 57; D.P.P. v. Boardman, [1975] A.C. 421; Brunet v. The King, [1928] S.C.R. 375; R. v. Quon, [1948] S.C.R. 508; R. v. Hogg, [1958] O.R. 723; Suggs v. State of Maryland (1969), 250 A. (2d) 670 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from conviction for break, enter and theft and possession of stolen goods. Appeal dismissed, Laskin C.J. and Spence, Dickson and Estey JJ. dissenting.

J. Lockyer and M. Winter, for the appellant.

Douglas Hunt, for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on March 23, 1977. By that judgment, the Court of Appeal dismissed an appeal from a conviction of the appellant by a judge and jury pronounced on June 25 and July 29, 1975.

The appellant was charged in an indictment containing three counts as follows:

1. The Jurors of her Majesty the Queen present that JON HEWSON, between the first day of August, 1974, and the thirty first day of August, 1974, unlawfully did, at the City of Mississauga, in the Judicial District of Peel, and the Province of Ontario, break and enter a certain place, to wit; the business premises of Allan Crawford and Associates Limited, 6427 Northam Drive, Mississauga, and commit the indictable offence of theft

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therein, contrary to Section 306-1(b) of the Criminal Code of Canada;

2. The Jurors of Her Majesty the Queen further present that JON HEWSON, between the first day of April, 1974, and the seventeenth day of August, 1974, at the City of Mississauga, in the Judicial District of Peel, and at the Municipality of Metropolitan Toronto, in the Judicial District of York, both in the Province of Ontario, unlawfully did have in his possession electronic equipment, and computer parts of a value exceeding Two Hundred Dollars ($200.00) knowing that they were obtained by the commission in Canada of an offence punishable by indictment, namely theft, contrary to Section 312-1 (a) of the Criminal Code of Canada;

3. The Jurors of Her Majesty the Queen further present that JON HEWSON, between the first day of April, 1974, and the seventeenth day of August, 1974, at the City of Mississauga, in the Judicial District of Peel, and the Municipality of Metropolitan Toronto, in the Judicial District of York, both in the Province of Ontario, unlawfully did have in his possession a computer and a teletype machine of a value exceeding Two Hundred Dollars ($200.00), knowing them to have been obtained by the commission of the crime of theft, in the State of Massachusetts in the United States of America, which if it had occurred in Canada, would have constituted an offence punishable by indictment, contrary to Section 312-1(b) of the Criminal Code of Canada.

After a lengthy and complicated trial, the jury found the accused guilty on counts 1 and 3 and not guilty on count 2. The appeal of the accused to the Court of Appeal for Ontario was dismissed without written or oral reasons. Leave to appeal to this Court was granted upon the following questions.

1. Did the Supreme Court of Ontario err in not finding that in the circumstances of this case it was incumbent on the trial judge to charge the jury on the doctrine of recent possession?

2. Did the Supreme Court of Ontario err in finding that the applicant was not prejudiced in his right to a fair trial by the improper admission of similar fact evidence?

3. Did the Supreme Court of Ontario err in finding that the applicant was not prejudiced in his right to a fair trial by the improper admission of a previous conviction of the applicant which was at the time of trial under appeal and which was set aside subsequently?

4. Did the Supreme Court of Ontario err in not finding lack of direction by the trial judge on the explanations of the applicant?

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I shall first refer to the second question, that is, the question dealing with the admission of similar fact evidence. Such evidence was admitted by the learned trial judge and submitted to the jury only after a very careful consideration upon a voir dire and after the learned trial judge had given reasons in which she cited and analyzed many relevant authorities. At the conclusion of the argument, this Court came to the view that the evidence produced as evidence of similar fact was admissible on charges 2 and 3 but was quite inadmissible on charge 1. It is not my intention at the present time to discuss the question of the admissibility of similar fact evidence at any length and I confine myself to stating very shortly that the evidence was admissible to show that the possession by the accused of the goods referred to in count 2 and count 3 was not innocent and that such similar fact evidence did fall within the well known classifications outlined particularly in Makin v. Attorney General for New South Wales[1], Brunet v. The King[2], and D.P.P. v. Boardman[3].

The evidence was submitted in the form of an agreed statement of facts as follows:

On Friday, February 23rd, 1973, the Bell Canada Service Centre at 1090 Shaw Street, Toronto, received an emergency order for a view-com C.R.T. unit for installation on the following Monday. As a result of that order, a view-com C.R.T. unit, serial number 3 0 8 was hooked up for testing. This unit was seen on a service bench by Bell Canada employees at 4:00 o’clock p.m. Friday, February 23rd, 1973. This unit was missing from its location on the service bench at 8:00 a.m., Monday, February 26th, 1973. The Metropolitan Toronto Police Department was called and they began to look for the view‑com unit. Acting on information received, the detectives obtained a search warrant for apartment 356 at 20 Cassandra Boulevard, Toronto, the apartment of Jon Hewson.

On Saturday, March 10th, 1973, Metropolitan Toronto Police detectives, along with Bell Canada Security Department employees went to this particular apartment. They knocked several times on the door. No answer was received, although they heard someone

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speaking on the telephone. On an earlier day, the previous week, they had attempted to gain entry to the apartment, but it appeared a lock had been changed. On this particular Saturday, after the detectives heard the voice inside the apartment, one detective looked through the letterbox and saw Jon Hewson standing inside. The officer yelled to Mr. Hewson and saw Mr. Hewson enter the kitchen area and Mr. Hewson made no reply. The detective gained access to the apartment by entering the adjacent apartment and climbed from the balcony of the other apartment to the balcony of Mr. Hewson’s apartment. They then smashed the window, reached in, and unlocked the door. Jon Hewson asked to see the search warrant and indicated that he was talking on the phone to someone. The search warrant was shown to him. The detectives observed a view-com C.R.T. unit sitting on the end table in the apartment. On top of the view-com was a non-impact printer. This property was taken back to the police station and a supervisor of Bell Canada came to the police station to examine the property. He checked the view-corn C.R.T. unit and found the serial number had been removed from the back of the unit. He removed the back shield of the unit and on the frame of the unit was the serial number 3 0 7. The Bell Canada employee was able to identify this view‑com unit as the property of Bell Canada Limited. He examined the non-impact printer and found a serial number 1 4 4. Upon checking with Bell Canada Service Centre at 1090 Shaw Street, Toronto, he was able to determine that the item known as the non-impact printer had gone missing from 1090 Shaw Street, the Bell Service Centre.

Such evidence indicated a possession by the accused of goods which were the property of a previous employer, i.e., Bell Canada. These goods were electronic equipment, and the accused and his various employers had all been in the electronic field. In the case of both similar fact evidence and the goods with which the accused was charged with possession in counts 2 and 3 aforesaid, the explanation of the accused was that he had some sort of a colour of right to possess the goods although the reasons advanced by the accused were many and varied.

I, therefore, have come to the conclusion that the appellant’s appeal as to the admission of this similar fact evidence cannot be supported in reference to count 3. Count 2 is irrelevant as the jury’s verdict upon that count was one of not guilty.

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It was the view of the learned trial judge expressed at the end of the voir dire as to the admission of this similar fact evidence that the evidence was admissible on counts 2 and 3 only. This statement, of course, was made in the absence of the jury. When the state of the trial was finally arrived at where Her Honour addressed the jury, she did not make any detailed application of the evidence to one particular count or counts but rather she spoke of the admissibility of the evidence and its availability to the jury in considering “the question of honesty of the belief of the accused with respect to the goods that he had with him on August 15th, 1974” and then continued “but that similar act evidence can be used by you to assist you in reaching your conclusions as to whether he honestly believed that he had the right to retain the goods which he claimed he retained”.

The goods which were found in the premises of the accused on August 15, 1974, were the goods as to which the accused was charged with stealing in the break, enter and theft count, #1, and as to which he was charged with possession in counts 2 and 3. Surely, as Her Honour realized, similar fact evidence was inadmissible in support of the break, enter and theft count, #1, and the exclusion of such evidence from the consideration of the accused’s guilt on that count 1 should have been made very clear to the jury. Failure to do so, in my opinion, constituted serious misdirection.

Question 1 in the order for leave to appeal granted by this Court dealt with the failure of the trial judge to charge the jury on the doctrine of recent possession. As counsel for the Crown pointed out in his argument before this Court, the Crown did not purport to rely upon the doctrine of recent possession of goods knowing them to have been obtained by crime but rather sought to prove that the goods which were the subject matter of the three counts, that is, the goods, the property of Allan Crawford and Associates Limited, alleged in count 1 to have been stolen from that owner, the same goods dealt with in the possession count, #2, and the goods allegedly stolen from the Gould Corporation, the subject of count 3, had all been the subject of theft by the appellant. It is to be

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noted, however, that there was only indirect and circumstantial evidence of both the theft from Allan Crawford and Associates Limited and from the Gould Corporation, and there can be no doubt that the adducing of the evidence that the goods allegedly stolen were found in the actual possession of the accused would be very telling evidence against him in the minds of the jury. I am of the opinion that whether or not the Crown purported to rely upon the doctrine of recent possession, it was incumbent upon the learned trial judge to cite that presumption and particularly to warn the jury that they could not rely upon the presumption to convict the accused of either the break and enter count or the other two possession counts if they were of the opinion that his explanation reasonably could be true whether or not they were ready to accept that story. This has been said very frequently by authorities and particularly by Fauteux C.J.C. in Tremblay v. The Queen[4]. Again, I regard the failure to so charge the jury as a major misdirection.

I turn now to the third question upon which leave to appeal was granted. The Crown had given notice to the appellant or his counsel of its intention to produce evidence of previous convictions. This was evidently an attempt to proceed under the provisions of s. 318 of the Criminal Code which, in sub. (1), provides:

318. (1) Where an accused is charged with an offence under section 312 or paragraph 314(1)(b) and evidence is adduced that the subject-matter of the proceedings was found in his possession, evidence that the accused was, within five years before the proceedings were commenced, convicted of an offence involving theft or an offence under section 312 is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the property that forms the subject-matter of the proceedings was unlawfully obtained.

Counsel for the appellant at trial objected to the production of evidence as to one conviction of the accused for the theft of articles from Bell Canada which were the subject of similar fact evidence. It was the submission of counsel for the accused that when that conviction had been appealed and the

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appeal was pending then the conviction should not be submitted under the provisions of s. 318 of the Criminal Code and the learned trial judge should rule that the Crown could not, in its case, produce evidence of that conviction.

The appellant gave evidence in his own defence and, in answer to his counsel, admitted two previous convictions—one for placing harassing telephone calls and the second for causing a disturbance. The first conviction, the accused explained was in connection with his telephone service where he had run into repeated failures and the second when he had attended a garage to have his automobile serviced. The garage operator refused to do so, a disturbance resulted, and the accused was charged with causing a disturbance. It is said that the accused pleaded guilty to both of those charges. On cross-examination, counsel for the Crown asked “Did you leave out one conviction?” and when the appellant asked for further elucidation, counsel for the Crown reminded the accused that he had been convicted in December 1974 for possession of stolen property. The accused admitted that conviction and, after an interruption in which the right of the Crown to put that question was debated and the ruling made in favour of permitting the question, the accused said that that charge was then under appeal and that was the reason he had made no mention of it.

The learned trial judge in her charge to the jury said:

Now, there has been evidence given by the accused,—he was in the witness box with respect to previous convictions, and I want to give you a specific warning about this evidence. It may be considered by you only in respect of the credibility of the accused. You may take it into consideration, then decide how much of his evidence you believe. There was, in this case, a rather peculiar circumstance in that when the accused was asked about his convictions, he left out one conviction which was brought to his attention on cross examination. I wish to advise you at this time that it was quite clear that that was not deliberate, but it was done on the wrong advice of counsel, so that you may consider his answer as if he had originally said, “I was convicted of three offences”,—which he did outline. Now, I want to warn you that you are not entitled to regard the fact that he was convicted of those criminal offences or any of them

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as indicating a propensity on his part to commit other acts, and take into account in determining his guilt or innocence, but you should consider that evidence solely and exclusively for the purpose of determining the degree of credibility which might be attached to his evidence.

Her Honour, therefore, corrected any impression that the accused had sought to deliberately avoid mention of the conviction for possession of goods stolen from Bell Canada but Her Honour did allow the jury to hear of the conviction despite the fact that it was, at the time of this trial, under appeal. It is not without interest that such appeal was subsequently allowed and a new trial directed.

There has been no judicial determination in Canada as to the right to adduce against an accused person evidence of a previous conviction which was under appeal. There have been decisions in the United States in the federal appeal courts and in the highest of the state courts, and those decisions have gone both ways. It is said that the very considerable majority of the decisions in the courts in the United States permit the adducing of evidence as to a conviction despite the fact that an appeal is pending and that several of them have even gone so far as to permit the adducing of such evidence despite the fact that at the time of the subsequent trial the earlier conviction had been reversed on appeal. I find much virtue in the pronouncement made by Miller, Circuit Judge, in Campbell v. U.S.[5], at p. 47:

But it seems wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later reversed, the defendant has suffered unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction. We therefore, hold that the pendency of an appeal prevents the prosecution from proving a previous conviction for impeachment purposes; and that the District Court erred in admitting evidence concerning Campbell’s conviction when his appeal therefrom had not been determined. It is noteworthy that the trial judge, himself a former United States Attorney who served with distinction, expressed grave doubt as to the admissibility of the conviction, repeatedly warned government counsel of the

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risk of reversible error involved in asking the question, and was persuaded to permit it only by authorities from state courts which were submitted to him.

That position has been upheld in other United States federal courts of appeal and in Jennings v. Texas[6]. In Suggs v. State of Maryland[7], however, Murphy, Chief Judge, said at p. 672:

The eliciting of impeaching evidence that a witness had previously suffered a conviction from which an appeal was pending has been held proper even where, as here, the appeal subsequently resulted in the reversal of the previous conviction. See Latikos v. State, 17 Ala.App. 655, 88 So. 47; People v. Braun, 14 Cal. 2d 1, 92 P.2d 402; In re Abrams, 36 Ohio App. 384, 173 N.E. 312; State v. Crawford, 60 Utah 6, 206 P. 717. In Manning v. State, 7 Okl.Cr. 367, 123 P. 1029, a case upholding the use of a conviction pending appeal despite its subsequent reversal on appeal, it was indicated that where a witness had been tried for a felony, and the case submitted to a jury which found from the evidence that he was guilty, this fact could in any event be shown in evidence for the purpose of affecting his credibility since the law presumes that the jury, as an intelligent and impartial body, would not find the accused guilty upon mere suspicion or accusation. The Manning court, in concluding that the prior conviction was properly admissible, held that it was the verdict of the jury upon such an accusation that affects the credibility of the witness (without regard to the subsequent reversal of the conviction).

In my view the fact that a jury has found that an accused was guilty cannot be accepted as an important finding by an intelligent and impartial body when the basis upon which that jury reached its verdict was upon a subsequent appeal found to be faulty. Let us presume that the jury had, as a result of the error of the court, heard hearsay evidence and that error had been reversed in the Court of Appeal. The finding of a jury, no matter how impartial and intelligent, based on such an unreliable foundation as that would certainly not give any evidence of the accused’s guilt or indicate

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his lack of credibility, the sole purpose for which a record may be adduced. It is highly possible that a jury would disregard strenuous denials by an accused relying on evidence which an appellate court might find later to be unreliable. How then could a jury’s finding of guilt reflect on the credibility of that accused?

I have come to the conclusion that in Canada we should accept the principle as enunciated in Campbell v. U.S., supra, and not adopt the course as enunciated in, inter alia, Suggs v. Maryland, supra. Moreover, in this particular case, the permitting of the evidence as to the conviction under appeal was particularly damaging. As I have pointed out, the only other record was of two very inconsequential convictions not in any way connected to the sort of charge which faced the accused on this occasion. On the other hand, the record of the conviction for possession of stolen goods, the property of Bell Canada, was a record connected with the very evidence adduced on the evidence of similar facts. Nothing could be more conclusive in the mind of the jury against the accused than that he was, according to the Crown’s evidence, proceeding in a fashion similar to that in which he had proceeded as to the property of Bell Canada and that he had been convicted for such actions. Even if we are not to rule out all convictions which are subject to pending appeals as being admissible in cross‑examination of an accused, this conviction certainly should have been ruled out.

There is much debate as to whether s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10, gives to the court a discretion to refuse to permit the production of any part of the accused’s record. I am presently of the opinion that the initial words of subs. (1) of s. 12, “a witness may be questioned as to whether he has been convicted of any offence.” do not give a discretion to the court but rather to the Crown. I am, therefore, of the view that the exclusionary rule must be adopted and it should not be left to the discretion of individual trial judges. However, in this particular case, Her Honour the learned trial judge had

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determined that the question was admissible. Even if that decision had been correct, I am of the view that she should have made it very clear in her charge to the jury that if this accused had not, in law, been properly convicted, then the evidentiary value in regard to his credibility was nil, and I find Her Honour’s failure to take that position in her charge was again misdirection.

For these reasons, I would allow the appellant’s appeal and direct a new trial on counts 1 and 3.

Another matter must be referred to. The accused had been charged with an unrelated theft of goods of a value of under $200 and had been convicted on July 12, 1977. On his appeal to the Court of Appeal, the sentence of that offence had been amended to provide that it should be “twenty-nine days consecutive to time now being served”. If the “time then being served” were the sentences imposed by Her Honour Judge Dymond in the appeal we are now considering, then those twenty-nine days have long passed and cannot be considered as being consecutive to a sentence which is now being quashed by these reasons, and this matter should be considered by the appropriate authorities.

The judgment of Martland, Ritchie, Pigeon, Beetz and Pratte JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for the Province of Ontario rendered without written reasons in dismissing an appeal from the appellant’s conviction at trial before Her Honour Judge S. Dymond, sitting with a jury.

I have had the privilege of reading the reasons for judgment of my brother Spence, wherein he has accurately reproduced the charges contained in the indictment laid against the appellant which can be summarized as follows:

1. Breaking and entering the business premises of Allan Crawford and Associates Limited at the City of Mississauga in the Province of Ontario.

2. Having possession of electronic equipment and computer parts of a value exceeding Two Hundred Dollars

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($200.00) “knowing that they were obtained by the commission in Canada of an offence punishable by indictment, namely theft...”

3. Unlawfully having in his possession “a computer and a teletype machine of a value exceeding Two Hundred Dollars ($200.00) knowing them to have been obtained by the commission of the crime of theft in the State of Massachusetts in the United States of America, which if it had occurred in Canada, would have constituted an offence punishable by indictment, contrary to Section 312-1(b) of the Criminal Code of Canada.

The electronic equipment and computer parts referred to in the second count were allegedly the property of Allan Crawford and Associates Limited by whom the appellant had been employed prior to his discharge and from whose premises, situated at the City of Mississauga, the appellant had allegedly stolen them. If these goods were in fact found to have been stolen by the appellant, it is obvious that he must have known them to have been obtained by theft within the meaning of the second count, and this was the basis upon which the Crown founded its case.

The computer and teletype machines referred to in the third count were allegedly stolen from a company in the United States by whom the appellant had formerly been employed, and although he was not charged with stealing these goods, the Crown’s case on this count was also founded on evidence from which it could be inferred that he had stolen them.

The appellant was convicted of the first and third counts and acquitted of the second count, and the grounds upon which leave to appeal was granted to this Court are also reproduced in the reasons for judgment of my brother Spence, but I think it convenient to repeat them for the purposes of clarity:

1. Did the Supreme Court of Ontario err in not finding that in the circumstances of this case it was incumbent on the trial judge to charge the jury on the doctrine of recent possession?

2. Did the Supreme Court of Ontario err in finding that the applicant was not prejudiced in his right to a fair trial by the improper admission of similar fact evidence?

3. Did the Supreme Court of Ontario err in finding that the applicant was not prejudiced in his right to a fair

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trial by the improper admission of a previous conviction of the applicant which was at the time of trial under appeal and which was set aside subsequently?

4. Did the Supreme Court of Ontario err in not finding lack of direction by the trial judge on the explanations of the applicant?

As to the first question, the instructions required to be given to a jury by a trial judge where an accused is charged with “receiving recently stolen property” have been accepted in this Court in the terms first stated by Lord Reading in R. v. Schama and Abramovitch[8], at p. 49, which have been summarized by Chief Justice Duff in Richler v. The King[9] at p. 103 as follows:

The question, therefore, to which it was the duty of the learned trial judge to apply his mind was not whether he was convinced that the explanation given was the true explanation, but whether the explanation might reasonably be true; or, to put it in other words, whether the Crown had discharged the onus of satisfying the learned trial judge beyond a reasonable doubt that the explanation of the accused could not be accepted as a reasonable one and that he was guilty.

See also Tremblay v. The Queen[10], R. v. Newton[11], and the many cases there cited.

As I have indicated, the case for the prosecution on the second and third counts rested upon evidence that the accused had in fact stolen the property, and it is significant that Crown counsel stated in this Court that the Crown did not purport to rely upon the doctrine of recent possession of goods knowing them to have been obtained by theft, but rather sought to prove that the goods had been the subject of theft by the appellant himself. In this latter regard, I share the view expressed by Bull J.A. in R. v. Hart[12] at p. 245 where he said:

In this case the doctrine of recent possession was not raised in the Court below, either by the Crown or by the defence. The Crown did not rely on any presumption stemming from the unexplained possession of recently

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stolen goods, nor did the learned Provincial Court Judge in any way base his decision on such a presumption. It was simply not in issue, and hence he was not bound to direct himself as to whether the appellant’s explanation might or might not reasonably be true. It follows he did not err as submitted.

The Hart case was one which had been tried by a judge sitting alone but the same considerations apply in the case of a trial by a jury.

In the present case, however, the jury, having found the accused guilty of theft under the first count, quite properly found him not guilty of the possession count (count 2). This is in accord with the law as stated by MacKay J.A. in R. v. Siggins[13], at p. 285 where he said of an indictment charging both theft and possession of the stolen goods:

The Crown is entitled to lay both charges against him, but at the trial if the jury convicted of theft they should not convict on charges of unlawful possession.

The cases of R. v. Quon[14] and R. v. Hogg[15] are to the same effect.

The third count which related to the unlawful possession of goods allegedly stolen in the United States of America can have had no bearing on the guilt or innocence of the appellant in relation to the goods allegedly stolen in Canada which are the subject of the first count.

In the course of the charge to the jury, the learned trial judge repeatedly referred to the doctrine of reasonable doubt in relation to the question of whether the appellant had an honest belief in his right to retain the goods.

In dealing with the second count the learned trial judge summarized the explanations given by the accused as follows:

The accused says, ‘I had these goods, those marked, ‘R’,—the company owes me money, I am holding them until the company pays me. I believe I can do that’. The accused also says, ‘Certain goods I found in the garbage,

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certain goods I bought out of my own money and certain goods were given to me in payment for overtime’.

You will consider the evidence for and against these allegations when you go to your jury room.

At another stage in her charge, the trial judge gave this direction:

The unreasonableness of a belief when objectively considered does not necessarily destroy the honesty of the belief, but the unreasonableness may be considered along with other evidence in determining whether the Crown has established that these articles were taken without colour of right.

In all the circumstances I can find no error in the trial judge having failed to charge the jury on the doctrine of recent possession and I would accordingly answer the first question in the negative.

As to the second question, I am in agreement with Mr. Justice Spence in finding that the evidence of similar facts introduced in this case was admissible to show the possession by the accused of the goods referred to in counts two and three was not innocent and that such similar facts did fall within the principles outlined in Makin v. Attorney General for New South Wales[16] and D.P.P. v. Boardman[17].

This evidence was introduced to rebut the defence that the defendant honestly believed that he had a right to have the goods in question in his possession and it is admissible solely on the issue of “honest belief” and it is therefore not relevant or admissible as to the first count of theft. This latter view was expressed by the learned trial judge on a voir dire but was not expressed in the same terms in the charge to the jury.

It was contended on behalf of the appellant that the learned trial judge failed to make it plain to the jury that this evidence was to be excluded in their consideration of the guilt or innocence of the

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appellant on the first count. In this regard it is appropriate to quote the following paragraph of the charge to the jury:

There was evidence read into Court to you which I will come to later on of similar acts committed by the accused relating to the two pieces of equipment owned by Bell Canada and found on the accused’s premises. Now, that evidence only goes to the question of honesty of the belief of the accused with respect to the goods that he had with him on August 15th, 1974. All other evidence about the character of the man, that is, of Mr. Hewson, must be used only to determine whether he is a man you can believe, and must not be used to decide that he is a man who is likely to commit the act complained of, but that Similar Fact Evidence can be used by you to assist you in reaching your conclusions as to whether he honestly believed that he had the right to retain the goods which he claimed he retained.

With the greatest respect, I am of opinion that in directing the jury that the “similar fact evidence” “only goes to the question of honesty of the belief of the accused with respect to the goods that he had with him on August 15th, 1974” the learned trial judge made it plain that this evidence was only to be considered in relation to the second and third counts in the indictment. The question of “honesty of belief” was not at issue in relation to the first count, and I am satisfied that the jury was made aware of this by the paragraph of the charge which I have just quoted which can, in my view, only be construed as meaning that the “similar fact evidence” did not apply to that count.

The third question is concerned with the admissibility of evidence of a previous conviction of the accused which was under appeal at the time of the trial and was subsequently set aside. This evidence was obviously admitted in compliance with s. 318(1) of the Criminal Code which reads as follows:

318. (1) Where an accused is charged with an offence under section 312 or paragraph 314(1)(b) and evidence is adduced that the subject-matter of the proceedings was found in his possession, evidence that the accused was, within five years before the proceedings were commenced, convicted of an offence involving theft or an offence under section 312 is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the

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property that forms the subject-matter of the proceedings was unlawfully obtained.

In the course of his evidence, the appellant was asked the following questions by his own counsel:

Q. Now, before I ask you the next question, I believe you have a previous conviction?

A. I do.

Q. And you have a conviction for harrassing phone calls?

A. That was in connection with my telephone service failing continually.

Q. And you also have a previous conviction for causing a disturbance?

A. In 1969, I went to get my car serviced and the garage refused to and they laid charges against me.

Q. That charge of harrassing arose out of some dispute between you and these garage people, is that correct?

A. No, the garage incident was, I believe, causing a disturbance.

No other previous convictions were drawn to the appellant’s attention in his direct examination nor did he volunteer any evidence in this regard.

In the course of his cross-examination the appellant however, admitted to having been convicted in 1974 for the possession of stolen property. This evidence was brought out in the following series of questions:

Q. Mr. Hewson, sir, when your counsel, Mr. Raman, was asking you questions about previous convictions, you mentioned that you had been convicted for causing a disturbance at one time and I believe causing a disturbance at one time,—did you not leave out one conviction?

A. Could you remind me please?

Q. Yes, I’d like to remind that you were convicted in 1974, in December, for possession of stolen property.

A. Yes.

Q. Any reason that one slipped your mind when counsel asked you?

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This question was followed by argument in the absence of the jury and on the jury’s return the following ensued:

Q. We agree in December, ’74 you were convicted of possession of stolen property?

A. No, in October ’74.

Q. Is there anything you’d like to say about that?

A. Yes, the matter is under appeal and that is the reason I made no mention of it.

It became apparent that the appellant’s initial failure to mention this conviction was a result of his counsel’s advice and in this regard the learned trial judge, in my opinion properly, instructed the jury in the following terms:

Now, there has been evidence given by the accused,—he was in the witness box with respect to previous conviction, and I want to give you a specific warning about this evidence. It may be considered by you only in respect of the credibility of the accused. You may take it into consideration, then decide how much of his evidence you believe. There was, in this case, a rather peculiar circumstance in that when the accused was asked about his convictions, he left out one conviction which was brought to his attention on cross-examination. I wish to advise you at this time that it was quite clear that that was not deliberate, but it was done on the wrong advice of counsel, so that you may consider his answer as if he had originally said—’I was convicted of three offences’,—which he did outline. Now, I want to warn you that you are not entitled to regard the fact that he was convicted of those criminal offences or any of them as indicating a propensity on his part to commit other acts, and take that into account in determining his guilt or innocence, but you should consider that evidence solely and exclusively for the purpose of determining the degree of credibility which might be attached to his evidence. (The italics are my own).

As the learned trial judge pointed out, the evidence of previous convictions could only be considered by the jury in respect of the issue of the accused’s credibility and it appears to me that as the omission of the third conviction was the result of counsel’s advice rather than any deliberate attempt to mislead, it is not to be treated as affecting the appellant’s credibility.

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It is contended, however, on behalf of the appellant that the fact that the conviction in question was under appeal resulted in any evidence relating to it being inadmissible. In support of this contention reference is made to a number of American authorities, but it will be found that the great weight of judicial opinion in that country is to the contrary effect. In the course of his reasons for judgment, Mr. Justice Spence refers to the case of Suggs v. State of Maryland[18], and I quote from the reasons for judgment of the Court of Special Appeals of Maryland in that case in the paragraph immediately preceding that which is cited by my learned brother. It is there said:

It appears to be the majority rule that it is permissible to attack the credibility of a witness by showing the fact of a previous criminal conviction even though an appeal therefrom is then pending. The rule is bottomed upon the premise that unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding that conviction. The cases are collected in an Annotation at 16 A.L.R. 3d. 726-738.

The 1974 conviction here at issue was under appeal at the time of the hearing of the present case and in my view the fact that the appeal was subsequently allowed and a new trial directed cannot affect the admissibility of the evidence respecting it.

It is true that there has been no express judicial determination in Canada as to the right to adduce evidence against an accused person of a previous conviction which was the subject of appeal at the time of the trial. In this regard every consideration must be given to the provisions of s. 318(1) of the Criminal Code which is quoted above.

In my view a previous conviction cannot be excluded from the operation of this section on the sole ground that a notice of appeal had been entered against it. If it were otherwise it would only be necessary for a convicted person to file a notice of appeal in order to sterilize his conviction from the operation of the section at least until such time as his appeal was disposed of, and with all respect, I am unable to accept a proposition which

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could lead to such a result. I would accordingly answer the third question in the negative.

It will be apparent from the observations which I have made concerning the second question that I find no lack of direction by the trial judge concerning the explanations given by the appellant and would accordingly answer that question in the negative also.

For all these reasons I would dismiss this appeal.

Appeal dismissed.

Solicitor for the appellant: Charles C. Roach, Toronto.

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