R. v. McKenzie, [1974] SCR 233

Supreme Court of Canada

R. v. McKenzie, [1974] S.C.R. 233

Date: 1972-03-30

Her Majesty The Queen Appellant;

and

Jeanine McKenzie Respondent.

1971: December 13, 14; 1972: March 30.

Present: Martland, Judson, Ritchie, Hall, Spence, Pigeon, and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Statements—Admissibility—Stolen goods—Recent possession—Explanation in written statement made by co-accused two hours after arrest—Crown not tendering statement but relying on doctrine of recent possession—Co-accused not testifying—Statement properly excluded.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], quashing the respondent’s conviction for possession of stolen goods and directing a new trial. The respondent was jointly charged with one Patrick Benedict Graham and the facts of the present appeal appear in the Queen v. Graham, ante page 206. Appeal allowed and conviction restored.

W.G. Burke-Robertson, Q.C., for the appellant.

J.H. Cram, for the respondent.

The judgment of Martland, Judson, Ritchie, Hall and Pigeon JJ. was delivered by

RITCHIE J.—The respondent and Patrick Benedict Graham were charged jointly with being in possession of a quantity of jewellery of a value in excess of $50 knowing that it was obtained by the commission of an indictable offence. Both accused were convicted at trial and the appeals by the Crown from the judgment of the Court of Appeal of British Columbia quashing these convictions were heard successively in this Court, leave to appeal in both cases having been granted on the following question:

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Did the learned Judges of the Court of Appeal err in holding that a written statement of the Respondent Graham ought to have been adduced in evidence in view of the circumstance that the Crown relied on the presumption flowing from possession by the Respondent of goods recently stolen?

It was contended on behalf of Miss McKenzie that the written statement made by Graham was in all respects consistent with her testimony and that if it had been tendered to the jury it would undoubtedly have strengthened her evidence, so that she was unfairly prejudiced by the non-admission of the statement before the jury. In the course of his reasons for judgment in the Court of Appeal, Mr. Justice Bull dealt with this submission as follows:

But if Graham’s explanatory statement had been before the jury, as it should have been, the jury might well have found (because of the consistency of her sworn story with that statement made after arrest by Graham ten months earlier, having regard to the testimony of the Crown witness Mendelman) enough to conclude that her story might reasonably be true. As it was, the jury merely had Mendelman’s evidence as to the authority given to Graham, but substantially nothing from the latter (whether by testimony or admissions) to indicate that he had acted on that authority. It seems to me that Graham’s written statement which the jury did not have before them, was, in the unusual circumstances of this case, almost as important to the appellant McKenzie as it was to the appellant Graham.

For the reasons which I have given in the case of Graham[2], I am of opinion that his statement was properly excluded from the evidence at the joint trial, but other grounds for quashing her conviction were raised on behalf of the present respondent in the argument before us.

The initial submission made on behalf of the respondent is that this Court did not have jurisdiction to hear this appeal under s. 621(1)(b) of

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the Criminal Code because the ruling as to the inadmissibility of Graham’s statement did not involve a question of law alone in that it was based on the particular circumstances in which it was made.

As to this submission, it is to be observed that the question of law upon which leave was granted in this case is concerned with whether when the Crown is relying on the presumption of guilt arising from the unexplained possession of stolen goods, it is required to adduce evidence of a self-serving statement made by the accused more than two hours after the goods were discovered, and whether such a statement can be introduced by cross‑examination of the party to whom it was made.

Graham did not testity in this case but the statement which he made, upon the goods being discovered in his possession, was duly admitted and there is no dispute about the fact that he offered no further explanation until making his written statement. It is thus clear that the question of law upon which leave to appeal was granted does not involve any disputed issue of fact.

It was also contended on behalf of this respondent as it had been in the Court below, that even if it were found that Graham’s statement was properly excluded, she was nevertheless entitled to succeed in her appeal on the ground that the trial judge erred in commenting adversely as to the credibility of that part of her evidence in which she stated that she had learned about the whereabouts of the stolen jewellery from a person who told her that the location of the jewellery in Vancouver had been reported in the newspapers. The portion of the charge of the learned trial judge to which objection was taken in this regard is the following comment which he made concerning the respondent’s evidence:

In cross-examination she said that it was Friday July 18th when she and Graham went downtown and this

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is ‘when I learned definitely that the jewellery was in Vancouver and this was because of a Calgary newspaper clipping.’ Well you may examine that with some care. It could be you may as a result of your knowledge of life think it rather strange for a newspaper clipping to be stating where stolen jewellery is. Generally speaking the police are looking for stolen jewellery. It is not likely that any information coming from the police would be given to the Calgary Herald or Calgary newspapers to be published as to the location of stolen jewellery.

In the course of her evidence Miss McKenzie had stated that she had been told by telephone of a newspaper article stating that the police believed that the jewellery was on its way to Vancouver and it appears that there was in fact an item published in the Calgary Herald three days after the respondent arrived in Vancouver to the effect that the stolen goods had “been shipped off to Vancouver for distribution through the black market”.

In my opinion the statements made in the last-quoted excerpt from the trial judge’s charge are directed exclusively to the respondent’s evidence as to the source of her information that the goods were in Vancouver and they are not calculated to reflect on any other part of her evidence so that they do not affect the central question of her guilt or innocence which depended entirely upon whether or not the jury accepted her explanation of the fact that she was found to be in possession of goods which she knew to have been recently stolen.

Miss McKenzie’s story was that the stolen goods had been obtained by her from a man, who also knew them to have been stolen, on the understanding that he would receive $1,000 of Mr. Mendelman’s money when the goods were returned to Mendelman. The story of her girl friend, Linda Petrus, who had accompanied her to Vancouver, was a very different one and was to the effect that on the night of his arrival in Vancouver, Patrick Graham sent the two young women out to the airport to pick up a suitcase which was later found to contain the stolen

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goods, and further that Miss McKenzie had later tried to sell the stolen jewellery in Vancouver but could get no offers because it was “too hot”.

The portion of the charge to which objection is now taken has no bearing on the wide divergence between these two stories.

All this evidence was before the jury and it cannot, in my opinion, be suggested that they were not justified in bringing in the guilty verdict which they did.

For all these reasons I would allow this appeal and restore the conviction entered at trial.

SPENCE J.—For the reasons which I have given in the case of The Queen v. Patrick Benedict Graham[3] I am of the opinion that Graham’s statement was properly excluded from his evidence at the joint trial. Therefore, this respondent Jeanine McKenzie can have no basis for alleging that such statement should have been available in aid of her defence.

I concur in the reasons given by Mr. Justice Ritchie for refusal to accept the other grounds of appeal advanced by this respondent in her appeal to the Court of Appeal for British Columbia with which that Court did not have to deal.

I would allow the appeal and restore the conviction.

LASKIN J.—For the reasons I have given in the appeal of Patrick Benedict Graham[4], a co‑accused of the appellant Jeanine McKenzie, with whom he was jointly tried, his written statement of explanation was not admissible to aid her any more than it was admissible to aid him. On the other matters urged before this Court, I am in agreement with my brother Ritchie and would, accordingly, allow the appeal

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and restore the conviction.

Appeal allowed.

Solicitor for the appellant: J.A. Margach, Vancouver.

Solicitors for the respondent: Moseley, Medland & Cram, Vancouver.