R. v. Bagshaw, [1972] SCR 2

Supreme Court of Canada

R. v. Bagshaw, [1972] S.C.R. 2

Date: 1971-04-27

Her Majesty The Queen (Plaintiff) Appellant;

and

Albert Charles Wilkinson Bagshaw (Defendant) Respondent.

1971: February 17; 1971: April 27.

Present: Abbott, Martland, Judson, Ritchie and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Theft—Owner of goods named in charge—Proof of ownership—Circumstantial evidence—De facto possession.

Appeal—Criminal law—Dissent—Question of law—Conjectural possibility or rational conclusion—Criminal Code, 1953-54 (Can.), c. 51, s. 598(1) (a).

The respondent was employed as a truck driver for C.P. Ltd. A police officer observed the respondent and another man standing in the foyer of a restaurant. He then saw them walk to the company’s truck. The respondent opened the rear doors and the other person removed three cans of peanut cooking oil from the truck and carried them into the restaurant where he was handed something which the police officer believed to be money. That other person then left the restaurant and entered the truck which was driven away by the respondent. The latter denied taking any peanut oil to the restaurant and also that anyone else had been in his truck. He was charged with theft of three cans of peanut cooking oil, the property of C.P. Ltd. The loading sheet showed that only two cans of oil had been placed in the truck. These were consigned and delivered to another restaurant. The evidence established also that the company was the only wholesale outlet for the produce and that no cans of peanut cooking oil of the size in question had been sold to any employee on the previous day. The respondent’s conviction was set aside by a majority judgment of the Court of Appeal, which took the view that there was a rational conclusion to be drawn from the evidence which was consistent with the goods having been obtained from a source other than the company. The Crown appealed to this Court.

Held (Spence J. dissenting): The appeal should be allowed and the conviction restored.

Per Abbott, Martland, Judson and Ritchie JJ.: The Court of Appeal did not distinguish between a con-

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jectural possibility, arising from the facts, and a rational conclusion arising from the whole of the evidence. This was an error on a question of law on which there was a dissent within the meaning of s. 598(1) (a) of the Criminal Code.

There is a prima facie presumption of law that the person who has de facto possession has the property. There was evidence that the three cans of peanut cooking oil here in question were the property of C.P. Ltd. The facts were inconsistent with any other rational conclusion.

Per Spence J., dissenting: The only difference between the majority of the Court of Appeal and the dissenting judge, was whether or not the other possible conclusion, i.e., that the cans of oil were not the property of C.P. Ltd., was a rational conclusion or merely a speculative one. That difference is a difference upon a question of fact and not in any way a question of law. There was therefore no dissent in the Court of Appeal upon a question of law alone and, consequently, no appeal lay to this Court under s. 598(1) (a) of the Code.

However, if this Court had jurisdiction, that other conclusion suggested in the judgment of the majority of the Court of Appeal was not a conjectural one but was based on a careful consideration of all the evidence and was, therefore, a rational conclusion but not consistent with the guilt of the respondent charged with stealing the property of C.P. Ltd. Although it was quite conclusive that the cans had been produced by C.P. Ltd. they might well have been sold by it to one of those innumerable concerns which bought oil from C.P. Ltd. and stolen by the friend of the respondent from one of such concerns. At is was not proved that these cans were in the possession of C.P. Ltd. the doctrine of possession could not be applied to prove property in C.P. Ltd.

APPEAL from a majority judgment of the Court of Appeal for Ontario[1], setting aside the respondent’s conviction for theft of goods, the property of Canada Packers Ltd. Appeal allowed, Spence J. dissenting.

Archie Campbell, for the appellant.

Robert S. Hart, for the respondent.

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

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario[2] setting aside a conviction entered against the respondent on the charge that he “did steal three cans of peanut cooking oil of a value not exceeding $50.00, the property of Canada Packers Limited.” The judgment of the majority of the Court of Appeal was rendered by Aylesworth J.A., but a dissenting opinion was filed by Schroeder J.A. and it is in relation to the question of law on which Mr. Justice Schroeder dissented that the present appeal is brought pursuant to s. 598 (1) (a) of the Criminal Code.

The respondent was employed as a truck driver by Canada Packers Limited and on June 9, 1969, was driving one of that company’s delivery trucks which had been loaded with merchandise during the previous night. A loading sheet was prepared upon which was entered a list of goods, and a copy of this sheet was handed to the respondent before he started on his delivery route. The loaded truck was sealed and the seal broken by the driver on making his first delivery.

The Division Superintendent of Canada Packers Limited testified that the records of the company showed that on the day in question only two 45-pound cans of peanut cooking oil were placed in the truck driven by the respondent. They were consigned to the Happy Palace Company restaurant, 108 Dundas Street West, Toronto, and were duly delivered.

At about 1:55 p.m. on the day in question Detective Greer, who was then off duty, was walking east on Dundas Street when he observed the respondent and a man named Terry Graham standing in the foyer of the Golden City restaurant at 175 Dundas Street. Graham was holding the restaurant door open and talking to a Chinese standing behind the cash register when the police officer heard him say: “Will $25 be okay”? or words to that effect, to which the Chinese replied “yes, it would be all right”, whereupon the respondent and Graham walked to the Canada

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Packers truck, the respondent opened the rear doors and Graham removed three cans of peanut cooking oil from the truck and carried them into the restaurant where he had a further conversation with the Chinese who handed him something which the police officer believed to be money. Graham then left the restaurant and entered the truck which was driven away by the respondent.

The Division Superintendent of Canada Packers was shown the cans identified by the police officer who had seized them from the Chinese restaurant and he stated that Canada Packers Limited refined the peanut cooking oil in question and that it was the only wholesale outlet for the produce which had a retail value of approximately $15.30 per can. The Division Superintendent also testified that no cans of peanut cooking oil of the size in question had been sold to any employee on the previous day but that it was possible that the respondent could have got it elsewhere although his company was the only wholesale source.

By the time that the respondent returned to the Canada Packers Limited plant, the police officer had alerted his superiors, and Inspector Cole was on hand to interview the respondent who there and then denied taking any peanut oil to the Golden City restaurant and denied also that anyone else had been in his truck. At that time he had a $20 bill folded up small in the bottom of his wallet which he explained that he always carried in case he had to pay for out-of-town repairs to his truck.

In commenting on the conduct of the respondent, Mr. Justice Aylesworth, in the course of his reasons which were delivered on behalf of the majority of the Court of Appeal, said:

While the whole conduct of the appellant, in particular his denial of the presence upon the truck of the 3 cans of peanut oil seized by the police and of the removal of those cans and delivery thereof to the Golden City Restaurant (see Mawaz Khan v. Reginam, (1967) 1 A.E.R. 80), loudly proclaims his guilt of theft or illegal possession, that conduct in no way aids in establishment of the title of Canada Packers Limited in the stolen goods;…

As I have indicated, the evidence that the cooking oil was the property of Canada Packers

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Limited was that the three containers were on a Canada Packers truck which was in charge of its servant or agent, the respondent, until the moment when they were delivered to the Golden City restaurant. Mr. Justice Aylesworth observed that this evidence was purely circumstantial and he took the view that there was a rational conclusion to be drawn from the evidence which was consistent with the goods having been obtained from a source other than the company, and that the evidence, accordingly, did not satisfy the requirements of the rule in Hodge’s case[3].

The rule in Hodge’s case was recently restated by Mr. Justice Spence, speaking on behalf of the majority of this Court, in The Queen v. Mitchell[4], where he said:

To answer this question it is desirable to recall just what were the circumstances of Hodge’s case. The report states that the prisoner was charged with murder, the case was one of circumstantial evidence altogether, and contained no one fact which, taken alone, amounted to a presumption of guilt.

Baron Alderson told the jury that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, “not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person”.

It is quite clear that this direction was concerned only with the identification of the accused as being the person who had committed the crime…

The Court of Appeal’s finding that there was a rational conclusion inconsistent with ownership in the company appears to be based entirely upon the following excerpt from the evidence of the Divisional Superintendent of Canada Packers Limited, who gave the following evidence in the course of his cross‑examination:

Q. Then it’s possible Mr. Bagshaw could have got it elsewhere, your company is not the only source from which he could obtain this peanut oil?

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A. No, that’s quite true. The only source he could buy it wholesale would be from our company, Maple Leaf cooking oil.

Q. But he could buy it at a distress sale somewhere else?

A. Correct.

There is no evidence whatever to suggest that the respondent did buy the peanut oil either from Canada Packers Limited or from anybody else.

In the course of his reasons for judgment in The Queen v. Mitchell, supra, Mr. Justice Spence made the further comment at p. 479:

The direction in Hodge’s case did not add to or subtract from the requirement that proof of guilt in a criminal case must be beyond a reasonable doubt. It provided a formula to assist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime; i.e., the commission of the act as distinct from the intent which accompanied that act.

Reference may also be made to the reasons for judgment of Evans J.A. in the Court of Appeal of Ontario in Regina v. Torrie[5]. The following passage from that judgment, which appears at p. 303, was recently adopted in this Court in Wild v. Her Majesty the Queen[6]:

With the greatest respect, I am of the opinion that the learned trial judge misapplied the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in that he based his finding of reasonable doubt on non-existent evidence. In Regina v. McIver, [1965] 1 O.R. 306 at 309, [1965] 1 C.C.C. 210, McRuer C.J.H.C. said:

‘The rule (in Hodge’s Case) makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.’

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This statement was approved on appeal to this Court, [1965] 2 O.R. 475, 45 C.R. 401, [1965] 4 C.C.C. 182 and an appeal therefrom to the Supreme Court of Canada was dismissed [1966] S.C.R. 254, 48 C.R. 4, [1966] 2 C.C.C. 289.

I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.

In the course of his reasons for judgment in the Wild case, Mr. Justice Martland, who spoke for the majority of this Court, had occasion to say at page 611:

In the Lemire case, to which reference was made in the reasons of the Appellate Division, quoted above, it was stated, in this Court, that on an appeal from a conviction, if an appellate court allows the appeal on the ground that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt, there is an error of law. In my opinion, that proposition applies equally in a case in which a trial judge, in his reasons, finds that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt.

In the penultimate paragraph of his reasons for judgment in the Wild case, Mr. Justice Martland said, at page 616:

In the present case, the learned trial judge, in considering the facts to which he referred, failed to appreciate their proper effect, in law, in that he did not distinguish between a conjectural possibility, arising from those facts, and a rational conclusion arising from the whole of the evidence.

In my opinion, the same error is to be found in the reasons for judgment of Mr. Justice Aylesworth in the present case and this was a question of law on which Mr. Justice Schroeder dissented within the meaning of s. 598(1) (a) of the Criminal Code.

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In the course of his reasons in the dissenting judgment in the Court of Appeal in the present case, Mr. Justice Schroeder expressed the further view that the evidence constituted prima facie evidence of the company’s ownership of the property, and in this regard he cited the statement made in Halsbury’s Laws of England, 3rd ed., vol. 29, para. 731, at p. 369, where it is said:

731. Possession prima facie title. The prima facie presumption of law is that the person who has de facto possession has the property, and accordingly such possession is protected, whatever its origin, against all who cannot prove a superior title. This rule applies equally in criminal and civil matters. Thus a person in actual or apparent possession, but without the right to possession, has, as against a stranger or a wrongdoer, all the rights and remedies of a person entitled to and able to prove a present right to possession.

Reference is also made to Wigmore on Evidence, vol. 9, 3rd ed., para. 2515, and to Pollock and Maitland’s History of English Law, p. 100.

I agree with Mr. Justice Schroeder that the paragraph which he quoted from Halsbury’s Laws of England contains an accurate statement of the law.

I am accordingly of the opinion that there was evidence that the three cans of peanut cooking oil here in question were the property of Canada Packers Limited and that the facts are inconsistent with any other rational conclusion.

For all these reasons I would allow this appeal.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario[7] pronounced on February 25, 1970, whereby that court allowed an appeal from the conviction of this appellant by Provincial Judge Taylor upon the charge:

Albert Charles Wilson Bagshaw, you are charged that on or about the 9th day of June in the year 1969, at the Municipality of Metropolitan Toronto in the County of York, unlawfully did steal three

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cans of peanut cooking oil of a value not exceeding $50.00, the property of Canada Packers Limited, contrary to the Criminal Code.

The appelant was arraigned on that charge and pleaded not guilty. At the same time, he was arraigned on a charge:

You’re further charged that on or about the 9th day of June in the year 1969, at the Municipality of Metropolitan Toronto in the County of York, unlawfully did have in your possession three cans of peanut cooking oil of a value not exceeding $50.00, the property of Canada Packers Limited, contrary to the Criminal Code.

and also pleaded not guilty.

The trial proceeded without any statement by the Crown or by the Provincial Judge as to which charge was being considered. The Provincial Judge, at the close of the trial, pronounced reasons very briefly as follows:

Stand up Mr. Bagshaw. I’m finding that there is a prima facie case made out against you and I can draw an inference from all the evidence that I have heard that you in fact did steal these three cans of peanut oil.

The only information as to the disposition of the second charge upon which the accused was arraigned may be found in the return on the reverse side of the information where it is indicated over the signature of the Provincial Judge that Count No. 2, i.e., that for possession of stolen goods, was dismissed.

The appeal by the Crown to this Court purports to be based upon s. 598(1) (a) of the Criminal Code, i.e., an appeal from the judgment of a court of appeal setting aside a conviction, such appeal being permitted “on any question of law on which a judge of the Court of Appeal dissents”.

The Notice of Appeal served and filed by the Crown specified that question in these words:

…upon the following question of law upon which the Honourable Schroeder, J.A. dissented from the judgment of the majority of the Court of Appeal for Ontario:

Did the majority of the Court of Appeal for Ontario err in law in holding that the removal

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of the goods from the Canada Packers Limited truck in no way aids in establishing the title of Canada Packers Limited in the goods?

As the argument developed in this Court, it seemed to cover a much broader field than the question as was stated and dealt with an analysis of all the evidence adduced at trial not merely that as to the removal of certain goods from a truck owned by Canada Packers Limited.

I have had the opportunity of perusing the reasons given by my brother Ritchie and I shall adopt the very complete statement of facts set out in those reasons making only additional reference to the evidence required for the purpose of my consideration.

Both the majority of the Court of Appeal for Ontario, for whom Aylesworth J.A. gave reasons for judgment, and Schroeder J.A., dissenting, agreed that on the information as charged the Crown has the burden of proving that the three cans of peanut cooking oil were the property of Canada Packers Limited and all three judges agreed that that proof could be made by the Crown either by direct evidence or by circumstantial evidence applying to the latter the well known rule in Hodge’s case[8], i.e., that to be probative such circumstances must not only be consistent with the accused having committed the act but the trier must also be satisfied that the facts were such as to be inconsistent with any other conclusion than that the accused was the guilty person. One must note that in applying that test to the present case, the trier must be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that these cans were the property of Canada Packers Limited and not consistent with any other rational conclusion.

Both the majority of the Court of Appeal for Ontario and Schroeder J.A., dissenting, rec-

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ognized that in order to find other rational conclusions such conclusions must not be merely speculative. Aylesworth J.A. said:

(3) While bearing in mind the application of the rule in Hodges case, it must also be borne in mind that conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts and that no conclusion can be a rational conclusion that is not founded on evidence, being in the absence of evidence a speculative imaginative conclusion not a rational one. McIver’s case, [1965] 1 O.R. 306; [1965] 2 O.R. 475; [1966] S.C.R. 254, and Regina v. Torrie, [1967] 3 C.C.C. 303.

Therefore, I am of the opinion that the only difference between the majority of the Court of Appeal for Ontario composed of Aylesworth J.A. and Laskin J.A., as he then was, and the dissenting opinion of Schroeder J.A., was whether or not the other possible conclusion, i.e., that the cans of peanut cooking oil were not the property of Canada Packers Limited, was a rational conclusion or merely a speculative one. Surely, that difference is a difference upon a question of fact and a difference arrived at by considering and weighing the evidence and not in any way a question of law. I express this view despite the decisions of this court in Regina v. Lemire[9] and Wild v. The Queen[10].

As my brother Martland points out in his reasons in Wild v. The Queen, it was held in Regina v. Lemire that if an appellate court allows an appeal on grounds that certain specific evidence creates a reasonable doubt as to guilt when on a proper view of the law that evidence is not capable of creating any doubt as to his guilt then the decision of the appellate court is in error on law and an appeal lies to this Court under the provisions of s. 598(1) (a) of the Criminal Code.

In the Wild case, the majority of this Court, of which I was not one, held that the Crown had

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a right, under the provisions of s. 584(1) of the Criminal Code, to appeal to the appellate court from the acquittal at trial, such appeal being limited to one which involves a question of law alone because the trial judge, in considering the facts to which he referred in finding any rational conclusion, did not distinguish between a conjectural possibility arising from those facts and a rational conclusion arising from the whole of the evidence. In the present case, Aylesworth J.A., giving the reasons for the majority of the Court of Appeal for Ontario, did consider all of the evidence and, in my view, did not base his decision on any conjecture having, as I pointed out above, expressly ruled out any conclusion based on such conjecture. It would seem, from reading the reasons of Schroeder J.A. that he was of the opinion that the other conclusion which the majority of the court found to be a rational one and which, therefore, would cause the rule in Hodge’s case to operate so as to prevent a conviction, was that the cans of peanut cooking oil had been purchased by the accused from some other source such as at a distress sale and the learned justice in appeal pointed out that the inference could only arise from a question put by Crown counsel to the employee of Canada Packers Limited and that there was no evidence at all of any such sale. Schroeder J.A. characterizes such a conclusion as being only “by a resort to the most highly imaginative and unrealistic speculation which has no basis in the evidence, whether derived therefrom directly or indirectly”. I am of the opinion that this was not the other conclusion which the majority of the Court of Appeal for Ontario found was a rational one. Aylesworth J.A., giving judgment for the majority, said:

As an equally rational conclusion from the evidence in the case, these cans of peanut oil, with or without the connivance of appellant, might have been stolen by Graham from any one of innumerable concerns which had bought the oil from Canada Packers Limited; certainly Graham, an individual identified by the police, played a prominent, indeed a leading, part in the disposal of the cans of peanut oil to the Golden City Restaurant; his presence and his conduct according to the only evidence ad-

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duced, are as consistent with theft from a person or persons unknown or even theft by Graham alone, appellant being guilty of illegal possession only, as they are with theft by appellant from Canada Packers.

It should be noted that the Provincial Court Judge dismissed the charge of illegal possession against this accused and there was no appeal therefrom.

For these reasons, I am of the opinion that there was no dissent in the Court of Appeal for Ontario upon a question of law alone and that, therefore, no appeal lay to this Court under the provisions of s. 598(1) (a) of the Criminal Code.

However, lest I be in error in that view, it is my intention to examine the other conclusion suggested in the judgment of the majority of the Court of Appeal for Ontario and to express my view as to whether that conclusion was a rational one or was based on mere conjecture and, therefore, excluded by the authorities in Ontario cited by Aylesworth J.A., i.e., the McIver case[11], confirmed in this Court[12], and Regina v. Torrie[13] and by the Lemire and Wild decisions in this Court.

As I have pointed out, that other conclusion which Aylesworth J.A. termed “equally rational” was that the peanut oil might have been stolen by Graham, the other rider in the Canada Packers truck and not an employee of the company, from any one of the innumerable concerns which had purchased the said peanut oil from time to time from the said Canada Packers Limited and that such theft from another might have been either with or without the connivance of the present appellant.

Employees of Canada Packers Limited gave evidence for the Crown. Their evidence proved that the system utilized by that company was that during the night prior to the day the driver, the appellant, made the deliveries, the night staff loaded the truck which was to be operated by

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this appellant and then locked the truck and sealed it. In the morning, when the appellant came on duty he was given the key, a complete set of invoices covering each shipment of goods which had been loaded on the truck and another document called a Driver’s Loading Sheet. The latter document listed all of the invoices covering all the goods on the truck and indicated which of the shipments were to be delivered only on payment by the customer. The evidence showed that there was only one shipment of peanut cooking oil placed, on the previous night, in the truck to be driven by the appellant and that shipment was two 45-pound cans which were to be delivered to the Happy Palace Company at 108 Dundas Street West. The driver’s load sheet showed that the shipment which included those two cans of peanut oil was delivered to the said Happy Palace Company and was paid for by a cheque and such cheque was handed over by the appellant to Canada Packers Limited. In my view, this evidence proves conclusively that when the appellant took possession of his truck so loaded with the goods in the locked compartment and the invoices covering the goods locked therein on the morning of the offence, the three cans of peanut oil in the truck were not there.

Now let us consider the possibility that on that morning the appellant made a detour or side trip to some store room and there obtained the three extra cans of peanut oil. These are no little containers which could be stuffed into a jacket pocket or hidden in a coat, they are three 45-pound containers of peanut oil. Had the appellant stolen three such cans of peanut oil from the storage that day such an action would have been most visible and we can be sure that evidence would have been given on that topic at the trial. Moreover, it is impossible to conceive of the three 45-pound drums being already in the truck when the night staff started to load it. Such a circumstance would defeat the whole procedure set up by Canada Packers to control the deliveries and could not have failed to have been the subject of a report to the officials supervising the loading of the trucks. No evidence whatsoever was offered in reference to any unexplained shortage of stock and yet Canada Packers Limited is one of the

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very largest packing houses in Canada and must have had an accurate inventory control.

What I have been going on above is not evidence but the lack of evidence. Under the circumstances, however, it is not conjecture. As Aylesworth J.A. said, the evidence shows that Graham was the person who actually drove the bargain with the alleged receiver in the premises of the Golden City Restaurant and he was already known to the police. No evidence was given and no evidence could be given as to the actions of the appellant after he left the premises of the Canada Packers Limited and prior to arriving at the premises of the Golden City Restaurant at 175 Dundas Street West, Toronto, and therefore there is no evidence whatsoever as to when these three cans of cooking oil were loaded onto the truck driven by the appellant. It would appear that the back door of that truck had been opened at some time after it left the premises of Canada Packers Limited because the detective who observed Graham delivering these three cans of peanut oil to the Golden City Restaurant described the appellant opening the back doors but made no reference to his breaking any seal. Upon leaving the restaurant after having carried out the deal described by my brother Ritchie in his reasons, the appellant drove only a short distance along Dundas Street and then south on Chestnut Street, and there Graham left the truck while the appellant proceeded on his way.

The evidence also showed that Canada Packers Limited sold a considerable number of these large cans of peanut cooking oil to restaurants and other large volume users.

Now those are the circumstances upon which Aylesworth J.A. determined that another rational conclusion was that the three cans of peanut oil were not, on the day they had been delivered to the premises of the Golden City Restaurant, the property of Canada Packers Limited, although it was quite conclusive that they had been produced by Canada Packers Limited but might well have been sold by it to one of those whom Aylesworth J.A. rightly describes as “innumerable concerns” which bought oil from Canada Packers Limited

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and from one of such concerns stolen by Graham. I must point out that even if the theft from such other unidentified firm had been perpetrated by this appellant he could not have been convicted on the offence as charged as the cans would not have been the property of Canada Packers Limited: Reg. v. Scott[14]. (Alta. App. Div.).

With respect, I am in agreement with Aylesworth J.A. that such a conclusion is not a conjectural one but is based on a careful consideration of all of the evidence and is, therefore, a rational conclusion but not consistent with the guilt of the accused charged with stealing the property of Canada Packers Limited.

I should point out that Schroeder J.A., in his dissenting reasons, relied on the doctrine of possession giving a prima facie status of proprietorship to hold that it had been proved that the three cans of peanut cooking oil were the property of Canada Packers. I am, of course, in agreement that if it had been proved that these cans were in the possession of Canada Packers Limited then it could be taken as established that they were the property of that company for the purpose of founding a charge of the theft of the property of that company. I am, however, of the opinion that it has not been proved that the cans of peanut oil were in the possession of Canada Packers Limited. It is true that they were being carried in the truck owned by Canada Packers Limited and operated by the appellant in the course of his duty as an employee of that company but on the evidence recited by my brother Ritchie, to which I have referred, it has also been shown conclusively that they were not delivered to that employee by Canada Packers Limited for the purpose of his acting in reference thereto as an employee and that when he was in possession of the cans of cooking oil he was not in possession as the agent of Canada Packers Limited but against the interest of Canada Packers Limited. In my opinion, the doctrine of possession cannot be applied here to prove property in Canada

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Packers Limited any more than if the appellant had borrowed or stolen a raincoat and his use for it having been temporary he had thrown the raincoat into the locked compartment of the truck.

For both of the reasons which I have outlined I would dismiss the appeal.

Appeal allowed, SPENCE J. dissenting.

Solicitor for the appellant: W.C. Bowman, Toronto.

Solicitors for the respondent: Levinter, Dryden, Bliss, Maxwell, Levitt & Hart, Toronto.