Stavroff v. R., [1980] 1 SCR 411

Supreme Court of Canada

Stavroff v. R., [1980] 1 S.C.R. 411

Date: 1979-10-02

Louis Stavroff (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: March 8; 1979: October 2.

Present: Martland, Ritchie, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Jury trial—Possession of weapons—“Dangerous to the public peace”—Judge’s charge to jury—Further charge in response to question—Judge’s reference to factual situations from decided cases—Whether charge proper.

Appellant was convicted before a County Court Judge and jury of three counts of possession of a weapon for a purpose dangerous to the public peace and one count of possession of restricted weapon for which no registration certificate had been issued. His subsequent appeal was dismissed without recorded reasons. A search of appellant’s residence had disclosed certain weapons viz. a loaded 12 gauge double barrel shotgun in a closet just outside the master bedroom; a loaded double barrel shotgun in the garage. That same day a tenant of the Stavroff family in other premises gave the police two boxes containing ammunition and a pistol. A few days later, he gave the police another pistol. These articles were said to have been given to him by the appellant some months earlier to be kept by him. Appellant was present during the search of his residence and on the discovery of the shotgun near the bedroom said that he had enemies and needed the gun for his protection. The police also found dynamite, wires and a blasting cap in the basement and some large amounts of currency in plastic bags concealed in the garden. There was other evidence to the effect that the appellant was engaged in a large way in street money lending (loan sharking) and that he wanted out of that activity.

After the jury had retired the foreman sent a question to the judge asking clarification of the phrase ‘dangerous to the public peace’ with particular reference to its application within the confines of a person’s home. The judge advised counsel that he proposed to answer the query by referring to factual situations drawn from decided cases and no objection was then taken. After the

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judge had dealt with the question the jury again retired and returned with its verdict a few minutes later.

Held: The appeal should be dismissed.

It is for the jury alone to find the facts upon the evidence adduced. The judge has the sole responsibility for the law, and in making his explanation of the law he may refer to illustrations to assist the jury but the judge must not in so doing take from the jury the right to form their own conclusion on fact. The question here was whether the judge’s response to the jury’s request produced that result. The judge’s charge when read as a whole was, until the question was raised by the jury, unassailable. The course adopted as to the answer to that question was however unfortunate. It would have been wiser to repeat the charge earlier given, or to give a further charge in general terms explaining his earlier remarks with particular reference to the question. It does not follow, however, that he made a reversible error. Each case must be considered on its own facts and consideration must be given to the influence the words used by the trial judge had or could have had upon the jury. Here the judge provided illustrations—in which no error of law appears—of circumstances where the possession of weapons in a private dwelling place did not preclude a finding of a purpose dangerous to the public peace. The effect of the charge taken as a whole made it clear that the case references were merely illustrative.

R. v. Badenoch, [1969] 1 C.C.C. 78 (B.C.C.A.); R. v. Yaskowitch, [1938] O.R. 178 (Ont. C.A.); Caccamo v. The Queen, [1976] 1 S.C.R. 786; R. v. St. Pierre (1974), 17 C.C.C. (2d) 491 (Ont. C.A.); R. v. Barr (1975), 23 C.C.C. (2d) 116 (Ont. C.A.); R. v. Richards (1937), 69 C.C.C. 289 (N.S.S.C.A.D.); R. v. LeFrançois, [1965] 4 C.C.C. 255 (Man. C.A.); R. v. More (1963), 43 W.W.R. 30 (Man. C.A.) referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing without recorded reasons an appeal from conviction by County Court Judge and jury on three counts of possession of a weapon for a purpose dangerous to the public peace and one count of possession of a restricted weapon for which no registration certificate had been issued. Appeal dismissed.

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Allan Mintz, for the appellant.

E.G. Hachborn, Q.C., for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This is an appeal from the Court of Appeal for the Province of Ontario which dismissed without written or recorded reason an appeal from conviction upon three counts of possession of a weapon for a purpose dangerous to the public peace and one count of possession of a restricted weapon for which no registration certificate had been issued. The convictions were made after trial before a County Court Judge and jury. Two other counts of similar nature were dismissed. The four counts upon which convictions were recorded are reproduced hereunder:

1. LOUIS STAVROFF stands charged that he on or about the 27th day of March in the year 1975, at the Municipality of Metropolitan Toronto in the Judicial District of York, had in his possession a weapon, to wit: one Springfield 12 gauge double barrel shotgun, #C2537, for a purpose dangerous to the public peace, contrary to the Criminal Code.

2. LOUIS STAVROFF stands further charged that he on or about the 27th day of March in the year 1975, at the Municipality of Metropolitan Toronto in the Judicial District of York, had in his possession a weapon, to wit: one Armadeo Rossi S.A. 12 gauge double barrel shotgun, #T45226, for a purpose dangerous to the public peace, contrary to the Criminal Code.

3. LOUIS STAVROFF stands further charged that he during the year 1975 at the Municipality of Metropolitan Toronto in the Judicial District of York, had in his possession a weapon, to wit: a 25 calibre Browning semi-automatic pistol, #447173, for a purpose dangerous to the public peace, contrary to the Criminal Code.

4. LOUIS STAVROFF stands further charged that he during the year 1975 at the Municipality of Metropolitan Toronto in the Judicial District of York, had in his possession a restricted weapon, to wit: one 25 calibre Browning semi-automatic pistol, #447173, for which he did not have a registration certificate issued to him, contrary to the Criminal Code.

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Upon a search of the appellant’s residence, certain weapons were found: a loaded 12 gauge Springfield double barrel shotgun, in a closet just outside the master bedroom door (count 1); a loaded double barrel shotgun in the garage suspended from a rafter inside a plywood box with the barrel pointing towards the street (count 2). On the same day, one Peterson, a tenant of the Stavroff family in premises other than the Stavroff residence, gave the police two boxes containing ammunition and a pistol. A few days later, he gave the police another pistol. He said that these articles had been given to him by the appellant some months earlier to be kept until their return was sought. One of the weapons formed the sub-sect matter of counts 3 and 4.

The appellant was present while the search of his residence was conducted and upon the discovery of the shotgun near the master bedroom he said to the police officer who was conducting the search “Oh, well, I’ve got a lot of enemies. I need it for protection”. In addition to finding the weapon the police found dynamite with some wires and a blasting cap in the basement of the house and some large amounts of currency in plastic bags concealed in the garden. There was other evidence to the effect that the appellant was engaged in a large way in street money lending, frequently described as loan sharking, and that he wished to get out of that activity. On the totality of the evidence there can be no doubt that a properly instructed jury would have been justified in returning a verdict of guilty on the possession charge.

After the jury had been instructed and had retired to consider its verdict, the foreman sent a question to the judge. It was in these words: “The jury requires a clarification of the law relative to the phrase ‘dangerous to the public peace’ with particular reference to its application within the confines of a person’s home”. The trial judge informed counsel in the absence of the jury that he proposed to answer the jury’s question by referring to factual situations drawn from decided cases.

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The cases he mentioned were R. v. Badenoch[1], R. v. Yaskowitch[2] and Caccamo v. The Queen[3]. Counsel took no objection to that course. It must be noted, however, that no lengthy discussion of the course to be adopted by the trial judge occurred and counsel, of course, were not aware of the precise words which were to be employed by the trial judge in his remarks to the jury.

The jury was recalled to the court room and the following occurred as it was recorded in the transcript of the evidence:

QUESTION BY THE JURY AND HIS HONOUR’S FURTHER CHARGE

—The jury returns to the courtroom at 4:33 p.m.

THE CLERK OF THE COURT: Would the foreman please rise?

I understand you have a question to ask of His Honour.

THE FOREMAN OF THE JURY: Yes, we do. Your Honour, the jury would like a clarification of the law related to the phrase “dangerous to the public peace”, with particular reference to its application within the confines of a person’s home.

THE COURT: I presume you do not wish me to instruct you again with regard to what items you should be considering in determining “dangerous to the public peace”. You are, rather, directing my attention to the fact that these weapons were found in a private home, and you wish some comment or some assistance on that fact, that they were found in a private home. Is that correct?

THE FOREMAN OF THE JURY: I’d say that we understand the application of the law as you have explained it.

THE COURT: So that I don’t have to—

THE FOREMAN OF THE JURY: We merely asked with particular emphasis on that point.

THE COURT: Perhaps it would be of assistance to you if I referred to some factual situations that have occurred in private homes. That may be of assistance to you.

THE FOREMAN OF THE JURY: All right.

THE COURT: In one case there were found to be billies and hardwood legs from broken chairs, and the persons in possession of them were convicted of possession for a purpose dangerous to the public peace, even though they

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were assembled in a private place and these objects were for a purpose of defence against a contemplated attack.

Then there is another factual situation, which also happens to be a reported case, where a person was found to have knives in his possession and was found to possess them for a purpose dangerous to the public peace, in that during the course of a family argument in a motel unit, he took two knives out of a drawer and waved them about in a threatening manner and grabbed one of the female occupants and made a threat. The Court held that regardless of whether or not this conduct took place inside or outside a private dwelling, the conviction would be sustained.

Then in another example, also found in a reported case (a case that was considered by the Supreme Court of Canada), a person was found to possess a loaded pistol, and it was found in the top of a wardrobe in his bedroom, in a box, with eight additional rounds of ammunition. In another part of the bedroom six counterfeit ten-dollar bills were found. A sum of cash was found in his trouser pocket which amounted to $1700. There was also other evidence that tended to connect him with an organization which used or was known to use force.

Now is that of any assistance to you, ladies and gentlemen?

You may retire; and if I haven’t answered your question, if you will re-form it, I would be glad to hear it.

—The jury retires from the courtroom at 4:37 p.m.

The jury retired and a few minute later returned with its verdict. As I have said, they convicted the accused on counts 1 to 4 of the indictment.

No authority is needed for the proposition that where a judge sits with a jury it is the function of the jury alone to find the facts and to do so upon the evidence adduced. It is equally clear that the judge has the sole responsibility for the law and that in making his explanation of the law he may quite properly refer to illustrations to assist the jury but he must not in so doing take from the jury the right to form their own conclusion on matters of fact. The question which arises here is whether the trial judge’s response to the jury’s request for further assistance produced that undesired result.

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Before embarking on that inquiry it seems fitting to observe that a judge’s charge, when scrutinized by an appellate court, must be read in full and considered in its entirety. I have read the charge with great care. No complaint was made against that part delivered before the jury posed its question. Indeed it is my opinion that no complaint could be sustained. Upon the all important issue of the purpose for which the weapons were possessed, the trial judge told the jury in precise terms that it was for them to decide. He told them as well that the possession of weapons for defensive purposes was a factor for consideration but not by itself decisive. He also told them that they must consider all the circumstances surrounding the matter and he made it clear that the possession of a weapon in a person’s home could be legal and unobjectionable. He then reviewed the evidence touching on purpose and related it to the law. Near the conclusion of his charge, he returned to this subject with a short and accurate summary of his earlier instructions. In my view, if there had been no question raised by the jury, the charge would have been unassailable.

I turn now to the answer he gave to the jury’s question. I commence by saying that the course adopted by the trial judge at this point was unfortunate. It would undoubtedly have been wiser to repeat the charge that he had earlier given or to give a further charge in general terms explaining his earlier remarks with particular reference to the question raised by the jury. It does not follow, however, that he made a reversible error. It is obvious that the jury was to some extent confused by the Crown’s submission that they could find a purpose dangerous to the public peace upon evidence which revealed possession in a private dwelling place or places. The trial judge could have answered the question simply and correctly by telling the jury that the fact that the weapons were in a private dwelling was merely one of many factors to be considered in reaching a conclusion. This he had covered in his earlier charge. He chose, however, to illustrate the same proposition by reference to factual situations he found in the cases. In the first two illustrations he referred to two cases, R. v. Badenoch, supra, and R. v. Yas-

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kowitch, supra, where instruments, not always to be regarded as weapons, were held to be so and where convictions were obtained despite the fact that possession was in a private place. I cannot read his words from these two examples to mean or to leave the meaning that as a matter of law the jury was required to regard the weapons in the case at bar as having been possessed for a purpose dangerous to the public peace. The two illustrations go no further in my mind than to point out that possession in a private place does not rule out the existence of a purpose dangerous to the public peace.

The third example drawn from the case of Caccamo v. The Queen, supra, is more difficult and it is this illustration which was strenuously attacked by the appellant’s counsel. Not only, it was argued, does it refer to the Supreme Court of Canada but, in its reference to the finding of counterfeit bills and cash and the other evidence tending to show a connection with an organization which used or was known to use force, it underscored the evidence of similar nature present in the case at bar to the prejudice of the appellant. The effect of the reference to the Caccamo case by the trial judge, it was argued, was to leave the jury with the impression that it had already been determined in the courts as a matter of law that possession of weapons in circumstances such as those found in the evidence amounted to proof of a purpose dangerous to the public peace and that they were left with no alternative but to convict.

In support of this argument, reliance was placed upon R. v. St. Pierre[4]. Other authorities such as R. v. Barr[5] and R. v. Richards[6] were cited but the appellant’s argument rests principally upon, and is most strongly supported in R. v. St. Pierre.

In R. v. St. Pierre, supra, the appellant had admitted cunnilingus and the trial judge in charging the jury on the offence of gross indecency read to the jury the headnote from the case of R. v.

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LeFrancois[7], which was a case where fellatio had been the subject of a gross indecency charge. He then read from the judgment of Miller, C.J.M., a passage which described the appellant’s behaviour as “unnatural and depraved” and not within acceptable standards of behaviour. His dealing with the matter is best illustrated by an excerpt from the charge to the jury referred to by Dubin J.A. in his judgment in the St. Pierre case at p. 492 which is reproduced hereunder:

It may be of some help to you if I were to read to you very briefly from a judgment of the Manitoba Court of Appeal, and this was not a case of cunnilingus, but one of fellatio, and that is the putting of a penis in someone’s mouth. There the Court said:

An accused who engages in an act of fellatio with a female is guilty of the offence of gross indecency whether or not the female consents to such an act. The conduct as such is so repugnant to the ordinary standards of morality and decency that is cannot be called anything other than gross indecency.

They go on:

The accused’s behaviour was unnatural and depraved and violated the common standards of conduct accepted by the people or our land, and it is our view that Canadians are not prepared to condone such acts as falling within acceptable standards of behaviour.

Members of the jury, that was an expression of opinion on a fact. You must consider it. It is not controlling. You will consider all the facts here. What I have said may be of use to you. You will consider the definition of gross indecency and you will consider all the circumstances and say whether or not what happened here was a grossly indecent act.

The jury having heard these words, commenced deliberation and after several hours returned and asked for assistance on the law regarding “the gross indecent act”. In recharging the jury, the judge reread the headnote from the LeFrancois case and added, “that was the statement of the court having regard to a similar act and you may find that it is helpful or not”. I am in full agreement with the words of Dubin J.A. who said,

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speaking for the court, at p. 493, in the St. Pierre case:

With deference to the learned trial judge, he erred by reading from the headnote of that judgment. In so doing, he could not have helped but to have left the impression with the jury that a Court has held, as a matter of law, that the conduct alleged on the part of St. Pierre constituted gross indecency. The issue here was a question of fact for the jury and yet it was put to them as if it were a question of law. The jury had been advised that they must take the law as the learned trial Judge had given it to them, and the fact that he advised them that they might or might not find this statement helpful does not, in my view, remedy the misdirection.

The danger of referring to decided cases and other authorities in order to provide illustrations for the assistance of juries in deciding issues of fact has been noted frequently by the courts. In R. v. Barr, supra, Dubin J.A. in obiter said:

Further, in the learned trial Judge’s charge to the jury on the question of law he dealt with the Poitras v. The Queen case, supra. For the purpose of illustrating his recital of that case he interposed the names of the witness in the case at bar with names of the witnesses in the Poitras v. The Queen case and then instructed the jury as to the judgment of the Supreme Court of Canada. With respect to the learned trial Judge, doing it in this way could only confuse the jury and might leave them with the impression that the Supreme Court of Canada on facts identical to the facts in the case at bar had determined that the accused was guilty. With respect, the trial Judge ought to have instructed the jury as to the law set down by the Supreme Court of Canada, and then related the issues therein to the facts of the case at bar. It is only in this way that the jury could properly apply the facts in the case before them to the law as enunciated by the learned trial Judge. To leave it in the manner that the learned trial Judge did in this case might well have had the effect of removing the defense from the jury, since they could readily conclude that the issues had been resolved for them by a definitive judgment of the Supreme Court of Canada.

Other examples may be found in R. v. Richards, supra, and R. v. More[8].

While the adoption of this course by a trial judge will not always amount to error in law, it is generally to be avoided. The trial judge faces a

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task of great difficulty in charging a jury. He must explain the law and he must as well relate the law to the facts. While he is entitled to comment on and express opinions on the evidence, he must always keep in mind the separate functions of the judge and jury and avoid any interference with the jury’s prerogative to find facts. The trial judge is fully entitled to all the assistance he can find in the decided cases and other authorities and he is entitled to utilize the language of learned judges and authors in making his explanations and in answering questions. He must, however, be at pains to see that he does not leave with the jury the impression that because a conviction or acquittal resulted in an earlier case on apparently similar facts they are bound as a matter of law to reach the same result in the case before them. He must make it clear to the jury that his explanations are explanations of law and that they must apply that law to the peculiar facts of the case before them only after finding the facts themselves. The words of Green-shields J. in Leblanc v. The King[9], at pp. 209-210,. illustrate the position:

In the present case, the trial Judge was instructing the jury on the law governing the theft of a postal letter. After explaining the general law of theft, he told the jury that it had been decided in two cases, that a certain manner of dealing with a postal letter by a postman was, in law, theft. Taking his charge as a whole, and as stated in his notes, the trial Judge did nothing more than to say to the jury, “If you find such and such to be the facts,—and you are masters of the facts—I tell you, in law, it is theft,” and in support of his instruction in law, he referred to other cases where the law had been laid down or determined. As was said by a Chief Justice:—“He, the trial Judge, or the counsel, has the right to use the words of another as expressive of his own opinion. There is no objection to him (counsel) even using them as part of his own speech.”

I have no hesitation in saying, that the Judge charging a jury, in law, has a perfect right to say to them, “Lord Chief Justice so and so, in a certain case reported, laid down the law on this matter to be such and such,” and there and then proceed to read to the jury the holding in law in that other case. Or, in other words, to use them as expressive of his own opinion.

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The principles above stated are, in my view, not in dispute. The case must turn on the application of those principles. It is to a great extent a question of degree, each case must be considered on its own facts and consideration must be given to the influence the words used by the trial judge had or could have had upon the jury. In the St. Pierre case, it seems clear to me that the trial judge’s words were tantamount to a specific statement that the issue had been settled in the courts and that the conduct of the appellant was therefore, in law, grossly indecent. The trial judge’s words in the case at bar do not go so far. They provide illustrations—in which no error in law appears—of circumstances where the possession of weapons in a private dwelling place did not preclude a finding of a purpose dangerous to the public peace. The effect of the charge taken as a whole was, in my opinion, to make it clear that the case references were merely illustrative of situations involving questions similar to the one facing the jury. I am unable to read the judge’s words as meaning or being capable of conveying the meaning complained of by the appellant. The illustrations given in answer to the jury’s question did not constitute an entry by the judge into the jury’s peculiar sphere and did not constitute a direction to them to bring in a particular verdict. This is a case where the words of Greenshields J. from Leblanc v. The King, supra, at p. 210, immediately following the words already quoted, are apposite:

In the present case the trial Judge never told the jury that because another man was convicted by another jury, the prisoner should be convicted. What he did tell the jury was, that the law as stated by him, had been so stated and upheld by other Courts.

It is my opinion that the jury was not misdirected on the law nor misled as to its functions with regard to the evidence and I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Allan Mintz, Toronto.

Solicitor for the respondent: H. Allan Leal, Toronto.