R. v. Maroney, [1975] 2 SCR 306

Supreme Court of Canada

R. v. Maroney, [1975] 2 S.C.R. 306

Date: 1974-10-01

Her Majesty The Queen (Plaintiff) Appellant;

and

William James Maroney (Defendant) Respondent.

1974: April 29; 1974: October 1.

Present: Laskin C.J. and Judson, Spence, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal Law—Possession—Goods obtained by the commission of an indictable offence—Rights of holders of conditional sales agreements—Duty of Judge to direct jury on significance of “obtained”—Criminal Code, ss. 312(1)(a), 283(1).

Respondent was convicted of possessing goods obtained by the commission of an indictable offence. The goods, T.V. and stereo sets subject to conditional sales agreements held by third parties, had been in a store operated by a business partnership but were found behind bales of hay in a truck owned by appellant. There was evidence that the goods had been removed from the store with the complicity of at least one of the partners in the business, that a window had been broken to give the appearance of a breaking and entering and that the partnership was on the verge of bankruptcy. The Court of Appeal felt that the trial judge had failed to direct the jury’s attention to the defence that the Crown had not established that the goods were “obtained” by the commission of an indictable offence.

Held: the appeal should be allowed and the conviction affirmed.

The word “obtained” is not to be given too narrow a construction. The partnership was not the outright owner of the goods which were stolen when they were taken from the store. There was here a fraudulent conversion within the meaning of s. 283(1) of the Criminal Code as the holders of the conditional sales contracts owned, or at least had a special property or interest in, the goods.

R. v. Misell (1926), 19 Crim. App. R. 109 distinguished.

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APPEAL from a judgment of the Court of Appeal for Ontario quashing the conviction at trial by Scott, Co. Ct. J., with a jury, and ordering a new trial. Appeal allowed, conviction affirmed.

C. Scullion, for the appellant.

R. Carter, and P. Forestell, Q.C., for the respondent.

The judgment of the Court was delivered by

JUDSON J.—The respondent in this appeal, William James Maroney, was convicted after trial before a judge and jury on the following count:

WILLIAM JAMES MARONEY on or about the 29th day of July, in the year 1971, at the City of St. Catharines in the Judicial District of Niagara North in the Province of Ontario, unlawfully did have in his possession a quantity of merchandise having a total value exceeding Fifty Dollars ($50.00) knowing it to have been obtained by the commission of an offence punishable by indictment contrary to section 312(1)(a) of the Criminal Code of Canada.

He was acquitted on two other counts.

Section 312(1)(a) reads:

312. (1) Every one commits an offence who has anything in his possession knowing that it was obtained

(a) by the commission in Canada of an offence punishable by indictment.

The merchandise referred to in the indictment consisted of 29 television and stereo sets which, on July 28, 1971, were on the premises of a partnership known as “House of Taylor”, in the City of St. Catharines, and formed part of its stock. On the following day, July 29, 1971, the police found this merchandise in a truck owned by Maroney hidden behind bales of hay. The truck was parked on Maroney’s parking lot. There was evidence before the jury that the sets had been removed from the premises of the House of Taylor during the night with the complicity of at least one of the partners of the business; that the business was on the verge of

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bankruptcy, and that a window had been broken to give the appearance of a breaking and entering. While on the premises the goods were lawfully in the possession of the partnership, having been delivered by the manufacturers or distributors. They were subject to conditional sales agreements held by third parties.

The Court of Appeal quashed the conviction and directed a new trial. Its reason for doing so is contained in the following paragraph:

The main ground of appeal taken by counsel for the appellant is that there was evidence to support the theory of the defence that the owners of the goods in question were parties to the removal thereof from their store premises to the vehicle on the premises of the appellant where they were found. Hence, it was argued, it could not be contended that the Crown had established that the goods were “obtained” by the commission of an offence punishable by indictment even if it were to be assumed that the appellant was fully aware of the presence thereof in his van.

The learned trial judge did not direct the jury’s attention to this point or give them any instruction with relation thereto. This, it was contended, was non-direction amounting to mis-direction. In fairness to the learned trial judge it must be said that neither counsel raised this point during the course of the trial.

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 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

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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. Section 283(1)(a) reads:

283. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent,

(a) to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of his property or interest in it,

(b) to pledge it or deposit it as security,

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

On the facts of this case there was here a fraudulent conversion within the meaning of this section. The learned trial judge, in my opinion correctly instructed the jury on this point, telling them that the holders of the conditional sales agreements owned these goods or, at least, in accordance with the definition of theft, had a special property or interest in them.

The Court of Appeal was strongly influenced by a decision of the Court of Criminal Appeal in Rex v. Misell[1]. This was a decision on s. 33(1) of the English Larceny Act, 1916, 6 & 7 Geo. 5, c. 50. That section reads:

33.—(1) Every person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour, shall be guilty of an offence of the like degree (whether felony or misdemeanour) and on conviction thereof liable...

[Page 310]

The facts of that case are that goods were placed in the possession of a servant, who was a commercial traveller, for the purpose of sale. He sold them at a price much below their real value and kept the proceeds. The Court of Appeal held that “obtained” in s. 33(1) above quoted meant “obtained physically”. What the Court really decided was that there was no larceny in the case.

We are not concerned with larceny here but with theft by conversion, as defined by the Criminal Code of Canada. Smith and Hogan, Criminal Law, 3rd. ed., p. 396, point out that the 1916 Larceny Act was often construed on the tacit assumption that there was no intention to alter the previous law and the earlier case law had lost little or no authority. We are concerned here with a Code. We start with the Code and not with the previous state of the law for the purpose of enquiring whether the Code has made any change. On the plain meaning of our Code the facts of this case show the commission of an indictable offence—theft. In my opinion, the goods were obtained by the commission of that offence.

I would allow the appeal and affirm the conviction.

Appeal allowed, conviction affirmed.

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

Solicitor for the respondent: Robert J. Carter, Toronto.