Caccamo v. The Queen, [1976] 1 SCR 786

SUPREME COURT OF CANADA

Caccamo v. The Queen, [1976] 1 S.C.R. 786

Date: 1975-03-07

Francesco Caccamo Appellant; and

Her Majesty The Queen Respondent.

1974: June 24; 1975: March 7.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law—Evidence—Surprise evidence at trial—Admissibility—Relevancy of Document—Whether document in possession of accused—Pre-trial disclosure—Preliminary enquiry—Motion to re-elect—Criminal Code, s. 3(4).

A search, pursuant to a warrant issued on the basis of suspicion that certain fire arms were present in appel­lant's home, resulted in the discovery of counterfeit money, a loaded pistol and ammunition, $1,713 in cash and some handwritten notes in Italian. The appellant was charged with (first) possession without lawful excuse of six counterfeit notes, (second) the possession of a weapon dangerous to the public peace and (third) possession of a restricted weapon for which he did not have a registration certificate. The handwritten notes were found in the kitchen cupboard and were not men­tioned at all during the preliminary enquiry, were not disclosed to the defence prior to the beginning of the trial but were introduced and mentioned for the first time during the second day of the trial which took place before a judge alone. Expert evidence identified the notes as a copy of the constitution of a Mafia related secret society which preached and practised violence.

The trial judge granted an adjournment to permit examination of the document. The defence made application for re-election in order that the trial should proceed before a judge and jury but this was refused. Appellant was convicted on all three counts and his appeal was dismissed by the Court of Appeal, Arnup J.A. dissenting. Hence the appeal to this Court on two questions only:

(1) was there evidence upon which the trial judge could find that the possession of the weapon was for a purpose dangerous to the public peace? and (2) did the

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failure of the Crown to disclose to the defence the existence of exhibit 5 until after the trial had com­menced constitute a miscarriage of justice?

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

Per Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. Referring to the first ques­tion, the evidence justified the unanimous conclusion in the courts below that the document was in the possession of the appellant. It was not necessary to invoke the presumption of law that, when a husband and wife live together, the husband is in possession and control of the premises in which they reside. In the circumstances, the trial judge was entitled to draw an inference from the possession of the document that the accused was a member of the organization to which the document referred and therefore had possession of the weapon for a purpose dangerous to the public peace.

Referring to the second question, there was no obliga­tion on the Crown to disclose before trial to the defence the existence of the document and the intention of the prosecution to introduce it into evidence as an exhibit. The sole purpose of the preliminary enquiry is to satisfy the magistrate that there is sufficient evidence to put the accused on trial and the Crown has the discretion to present only that evidence which makes out a prima facie case. At trial Crown counsel has full discretion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive. The accused must however be guaranteed a fair trial, thus if the introduction of new evidence takes the accused by surprise he is entitled to a postponement, as was obtained by the appellant. The fact that the document was only revealed on the second day of the trial (a) did not affect the conduct of the trial prior thereto; (b) did not entitle the accused to make a second option (to be tried by judge and jury rather than by judge alone) which as a rule must be made in the light of the charge not in light of the evidence. In other words, there was no miscar­riage of justice.

In reaching a conclusion as to whether or not a miscarriage of justice exists the courts are entitled to take into account the fact that the accused did not testify.

Per Laskin C.J. and Spence J. dissenting: The police officers and the Crown in a carefully considered procedure

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concealed from the appellant and his counsel the possession of the handwritten notes and their intention to use them at trial until the trial had proceeded for some time. There was utter surprise to defence counsel, however, in view of the fact that the trial did not proceed at once and the statement by appellant's counsel that he had, as a result of the adjournment, ample opportunity to prepare his case, no prejudice to the accused was established. The appeal should none the less succeed on the basis that without the document the Crown had not made out a prima facie case that the possession of the weapon was for a purpose dangerous to the public peace and that the Crown had failed to prove that the document was in the possession of the appellant. The document found as it was in the kitchen casually stored with household accounts inferred possession with the appellant's wife and not with the appellant. The police procedure on discovery of the document prevented the police from being able to show that it was in the appellant's possession. Even if the document had been proven to be in the possession of the appellant in such circumstances as would permit an inference of his knowledge of its contents, it had no probative value to show that the appellant possessed the weapon found for a purpose dangerous to the public. The expert evidence demonstrated quite conclusively that the document related to an organisation which died after an historic trial some 60 years ago. Such a fragile basis for linking the accused with some unnamed and unoutlined crimi­nal organization could not constitute proof beyond reasonable doubt.

[R. v. Caouette, [1973] S.C.R. 859; Parnerkar v. The Queen, [1974] S.C.R. 449; Steinberg v. The King, [1931] S.C.R. 421; R. v. Lawson (1944), 81 C.C.C. 139; R. v. Mandzuk, [1945] 3. W.W.R. 280; R. v. Tokarek (1967), 58 W.W.R. 691: Thompson v. The King, [1918] A.C. 221; Picken v. The King, [1938] S.C.R. 457; Emkeit v. The Queen, [1974] S.C.R. 133; Prosko v. The King (1922), 63 S.C.R. 226; R. v. Wray, [1971] S.C.R. 272; Patterson v. The Queen, [1970] S.C.R. 409; R. v. Epping (1972), 57 Cr. App. R. 499; Lemay v. The King, [1952] 1 S.C.R. 232; R. v. Boucher, [1963] 2 C.C.C. 241; R. v. Cipolla, [1965] 2 O.R. 673; R. v. Greenlaw (No. 1) [1968] 3 C.C.C. 200 referred to]

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a conviction by Moore, Co. Ct. J., for possession of a weapon for a purpose dangerous to the public peace. Appeal dismissed, Laskin C.J. and Spence

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J, dissenting.

A. Maloney, Q.C., for the appellant.

A. Campbell, for the respondent.

The judgment of Laskin C.J. and Spence J. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on January 26, 1973, which, by a majority, dismissed an appeal from the judgment of the trial judge pronounced on June 30, 1972, after a trial without a jury.

The appellant had been convicted on three charges: firstly, possession of counterfeit money, secondly, possession of a weapon for a purpose dangerous to the public peace, and thirdly, posses­sion of a restricted weapon. The appellant had pleaded guilty to the third charge but none the less argued in the Court of Appeal that the conviction thereon should be set aside. The Court of Appeal unanimously confirmed the conviction on the first and third counts and we are not concerned with those counts in this Court.

On the second count, that is, the possession of a weapon for a purpose dangerous to the public peace, the majority of the Court, for reasons given by the Chief Justice of Ontario, dismissed the appeal. Arnup J.A. gave reasons for dissenting and would have allowed the appeal. The formal judg­ment of the Court expressed the dissent of Arnup J.A. in these words:

The Honourable Mr. Justice Arnup dissenting therefrom and expressing the opinion that the appeal against the conviction on charge two (possession of a weapon for a purpose dangerous to the public peace) should be allowed on the following grounds, in law, namely: that there was no evidence upon which the trial judge could find that the possession of the weapon was for a purpose dangerous to the public peace

The appellant applied to this Court for leave to appeal upon other grounds of law and this Court,

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by its Order pronounced May 7, 1973, permitted an appeal to this Court upon the following addi­tional ground:

Did the failure of the Crown to disclose to the defence the existence of exhibit five until after the trial had commenced constitute a miscarriage of justice?

I find it necessary to deal at considerable length with the circumstances surrounding the charge of possession of a weapon for a purpose dangerous to the public peace. I have taken most of the facts hereinafter recited from the evidence given for the Crown by Detective Jack Carr, and particularly from his cross-examination.

A shooting affray occurred at Newtonbrook Plaza in North York Township in Metropolitan Toronto. During the ensuing investigation, the police came to the conclusion that some numbers of persons related by blood and being immigrants from a district in Italy known as Calabria might have been involved and that offensive weapons might be found in the possession of many of those people. Therefore, Detective Sergeant Mouncey instructed Detective Carr to obtain a series of search warrants for offensive weapons applicable to various people including the appellant. The actual search warrant was produced at trial and marked as Exhibit 2; a search for the material upon which the application for the search warrant had been based made during the course of the trial proved in vain and Detective Carr from his memory could not give any information on that topic. At any rate, Detective Carr admitted that he had never heard of the appellant Francesco Cac­camo prior to having obtained the warrant to search his residence and did not know any background. Detective Carr and three other officers, all in plain clothes, on Sunday, August 1, 1971, arrived at the front door of the premises—Detec­tive Carr and Detective Turner approaching the front door while two other officers, Constable Wauchope and Constable Clark, approached the rear door and waited until Detective Turner, having been admitted to the front door, in turn admitted the two latter officers to the rear door. The four officers then seemed to have divided up their task of searching the premises with Detective

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Carr confining his search to the kitchen, although he was assisted from time to time in that task by Detective Turner.

The first discovery by the officers was an American twenty-dollar bill which had been torn in two pieces, which Detective Turner found in a dresser in the master bedroom. He immediately asked the appellant whose money that was and the appellant explained that it was money which he had found in the same torn condition in the street. This was a genuine twenty-dollar bill.

Detective Turner continued his search of that dresser drawer and under clothing found six Bank of Canada notes which turned out to be counterfeit and which gave rise to the charge of possession of counterfeit money to which I have already referred. Again, Detective Turner questioned the appellant as to these counterfeit bank notes, receiving an explanation with which we are not concerned.

Then, Constable Clark, for some unexplained reason, proceeded to search the person of the appellant and found the sum of $1,713, again in genuine money, in his right front pocket. For the third time, Detective Turner questioned the appel­lant as to the possession of this sum of money and simply had the reply that it was the appellant's personal property as he had not banked that week.

Constable Wauchope lifted down, from the top right-hand side of a clothes closet at the foot of the bed, a blue box which contained a black pistol already loaded with six rounds of ammunition which Constable Wauchope removed from the weapon, and then Constable Clark found a box containing an additional eight rounds of 6.35 ammunition with a cleaning brush and cleaning fluid. Once more, Detective Turner, cautioned the appellant on the offence of possession of a restricted weapon. The appellant's answer did not appear in the evidence.

During this time, with the appellant and Detec­tive Turner going back and forth between the living room, master bedroom and kitchen, Detective

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Carr continued his desultory search in the kitchen. It would appear that Mrs. Rosa Caccamo, the appellant's wife, who did not understand Eng­lish and who was in such an obviously pregnant condition that the officers thought it better that she should remain seated, stayed in the kitchen. Detective Carr found nothing which interested him except that, with household bills, in the kitchen cupboard in what would appear to be a plastic envelope he found several slips of notepaper hand-written in Italian. This plastic envelope was on the first shelf of the cupboard. It could hardly be imagined that it was in any way concealed. Detec­tive Carr removed this plastic container and put it in his pocket. So far as he was aware, Mrs. Cac­camo did not observe him doing this and neither he nor Detective Turner, who had observed Detective Carr's movements, made any reference to the papers to either Mrs. Caccamo or to the appellant when he returned in a moment or two to the kitchen. These papers, with the counterfeit money, the torn bill, the genuine money, and the pistol with its ammunition, were all removed from the premises. The appellant was charged with the three offences which I have outlined and eventual­ly came up for preliminary hearing.

At the preliminary hearing, Detective Carr was not called by the Crown as a witness. Counsel for the appellant, however, did call Detective Carr as a witness, It must be remembered that there is no evidence to indicate that either the appellant or his wife knew of the removal of these papers written in Italian from the kitchen cupboard nor, of course, that the appellant's counsel would have any knowl­edge of them. The appellant's counsel, therefore, did not examine Detective Carr upon this topic but he did put to Detective Carr this question: "Q. And then what did you do?", to which Detective Carr replied "A. Well, I looked in various places in the kitchen. I made a search of the kitchen."

Q. About how long?

A. Oh, possibly ten minutes.

When cross-examined at the trial as to his fail­ure to mention the discovery of these papers written in Italian, Detective Carr made two significant statements: Firstly, that he made no mention of these papers, and, secondly,

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It wasn't my decision to make at that time; as I say, I knew nothing of the actual contents [of the papers written in Italian]. I knew basically what it was about. I had never seen a translation. In fact, I didn't know there had been a translation made of the papers. I knew nothing of their actual contents except what I have stated here today.

At the trial, these papers written in Italian were the subject of a great deal of evidence and the question of the papers, which were marked as Exhibit 5, is the kernel of the dissent of Arnup J.A. and of the chief issue before this Court. The papers were produced and identified by Detective Carr and evidence in reference to them was given by Sergeant Dino Chiarot of the RCMP. Chiarot was Italian by parentage and had spent five years in Italy working for the RCMP in conjunction with the Department of Immigration. His evidence shall be referred to hereafter. This evidence was submitted prior to counsel for the appellant being permitted to cross-examine Detective Carr. At the close of Detective Carr's cross-examination, the Crown announced:

Your Honour, I am prepared—I have had an opportu­nity to consult with some senior police officers and I am prepared to call as a witness Dr. Alberto Sabatino, S-a-b-a-t-i-n-o, who is the head of the Mafia Unit of the Federal Italian Police and who is in Italy and who has had an opportunity to examine this document. It would be some day next week before I could have Dr. Sabatino here and I could advise Your Honour exactly when I could have him here and ask leave to call him.

To summarize the evidence in reference to the production of this document, it seems to me most apparent that the police officers and the Crown in a carefully considered procedure concealed from the appellant and his counsel the possession of this document, their view of the significance of the document, and their intention to use the document at the trial until the trial had proceeded for some time and then sprang the existence of that docu­ment on the counsel for the appellant when he was in an almost helpless position to meet its import.

How carefully the Crown's procedure had been worked out is demonstrated by the fact that the

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Crown's first expert witness to prove the contents of the document and its import was Sergeant Chiarot of the RCMP but when it appeared that the learned trial judge was doubtful of the weight of that evidence, the Crown quickly undertook to produce the evidence of Dr. Sabatino, the expert from Italy, whom the Crown spoke of as having already been consulted. It is these circumstances which the court is called upon to consider on the question as to which leave to appeal was granted by the Order of this Court and which I have cited above. There was certainly utter surprise to the counsel for the appellant at the trial and the question would be very easy of decision had the trial proceeded at once without an opportunity to cure that surprise. That, however, did not occur.

The Crown was granted an adjournment from June 2, 1972, to June 12, 1972, and on the latter date counsel for the Crown stated to the learned trial judge that the defence had requested a fur­ther adjournment for the purpose of examining the document. The court convened again on June 26, 1972, and counsel for the appellant made a vain attempt to re-elect so that the trial should proceed before and judge a jury. Upon that application being refused, the trial proceeded on June 28, 1972, and Dr. Alberto Sabatino gave evidence for the Crown.

Counsel for the appellant then called only defence witness Professor Stanley Chandler, Chairman of the Department of Italian and Hispanic Studies of the University of Toronto. There may be some significance in the fact that Dr. Sabatino's evidence immediately preceded the evi­dence of Professor Chandler and it might well have been more efficient for the defence to have had an opportunity to go over Dr. Sabatino's evidence with its own expert Professor Chandler prior to Professor Chandler giving his evidence. However, counsel for the appellant in this Court made no issue of this point and on the other hand expressed himself as satisfied that the delay in the trial had permitted the defence adequate opportu­nity to prepare its case. Counsel for the appellant did argue that the failure to reveal the existence of

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this document at the preliminary hearing or any conferences between counsel for the Crown and counsel for the appellant between the date of the preliminary hearing and the date of trial deprived such counsel of an opportunity to make an intelli­gent election as to the mode of trial and submitted most strenuously that had the defence been in possession of the knowledge that the document was to be introduced the defence would never have re-elected trial before a judge alone without a jury and that therefore the defence should have been granted its motion and permitted to reverse its re-election and go back to the forum to which the appellant had originally been committed for trial, that is, to a judge and jury.

As the learned trial judge pointed out in dispos­ing of that application, such an order would, of course, have resulted in a mistrial after the trial had continued for some considerable time, and it is difficult to understand upon what legal basis this ground of appeal can be put.

As I have said, had there been any prejudice to the appellant by failure to allow him full answer and defence, I would have been of the opinion that a mistrial had resulted and would have been ready to have allowed the appeal and sent the matter back for a new trial. I am inclined to believe that the frank statement by counsel for the appellant has eliminated that possibility and unless there is some legal principle which requires the revelation of the whole case for the Crown to the accused or his counsel prior to the trial no order declaring a mistrial is possible. During the argument in appeal, many cases were discussed and also the writings and speeches of well-recognized legal experts.

The present Mr. Justice Martin of the Court of Appeal for Ontario in his 1955 Special Lecture to the Law Society of Upper Canada put the matter, I think, with respect, most accurately:

But notwithstanding the. pronouncements of courts from time to time as to the duty of Crown counsel to adduce at the trial all evidence in his possession, favourable as well as unfavourable to the accused, there has been no case so far as I know that directly says it is the duty of Crown counsel to disclose or to adduce all his evidence at the preliminary hearing.

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This I am ready to accept as a concise summary of the law. What was said to be the practice in the Province of Ontario was enunciated by Mr. W. B. Common, Q.C., then Director of Public Prosecu­tions for the province, when making a submission before the Joint Committee of the Senate and the House of Commons on Capital and Corporal Pun­ishment when he said:

I might say for those members of the Committee who are unfamiliar with the procedure at a trial—and I am not going into technical matters—it will suffice to say this: that in all of the cases not only in capital cases but usually in all criminal cases there is complete disclosure by the prosecution of its case to the defence. To use a colloquialism, there are no "fast ones" pulled by the Crown. The defence does not have to disclose its case to the Crown. We do not ask it for a complete and full disclosure of the case. If there are statements by wit­nesses, statements of accused, the witness is supplied with copies, they know exactly what our case is, and there is nothing hidden or kept back or suppressed so that the accused person is taken by surprise at a trial by springing a surprise witness on him. In other words, I again emphasize the fact that every safeguard is pro­vided by the Crown to ensure that an accused person, not only in capital cases but in every case receives and is assured of a fair and legal trial.

It is regrettable that the crown attorney in this particular prosecution seems to have paid scant attention to Mr. Commons' very well-known statement and I am of the opinion that it is not sufficient to toss the matter aside so casually as counsel for the Crown does in his factum to this Court in the words:

Although it is conceded that it may have been better under the circumstances of this case for the crown to have made pre-trial disclosure of the fact that the police had learned of the accused's possession of Exhibit #5,....

In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfair­ness then the court should act with decisiveness to reverse such unfairness. As I have said, in the present case, such unfairness has not been proved

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and I cannot understand how the circumstances could be made the base for any right of further election as to the mode of trial.

This brings me to the consideration of the ground of appeal based upon dissenting reasons of Arnup J.A. in the Court of Appeal for Ontario, namely, that there was no evidence upon which the trial judge could find that the possession of the weapon was for a purpose dangerous to the public peace. It was Arnup J.A.'s view that without ex. 5, the document written in Italian, the Crown had not made out a prima facie case that the posses­sion of the weapon was for a purpose dangerous to the public peace. In addition to the possession of that document, the trial judge, as Arnup J.A. points out, relied upon the following circum­stances:

(i) ession by the accused of six $10 counterfeit bills,

(ii) possession of a loaded pistol, on top of a war­drobe in his bedroom, in a box with eight additional rounds of ammunition,

(iii) the accused had $1,713 in cash in his trouser pocket.

In my view, none of those three circumstances, without Exhibit 5, could constitute a prima facie case for the conviction on the charge of possession of a weapon for a purpose dangerous to the public peace.

It is significant that the search for which the warrant was obtained was not in any way connected with counterfeiting or the possession of counter­feit money and the discovery of counterfeit money was a mere accident in the course of the search. There was utterly no evidence that the appellant had been in any way connected with counterfeiting or with the uttering of counterfeit money and there was no evidence of any kind that the appellant had been in any way connected with violence or with a crime of violence.

We therefore must turn to consider the admissi­bility and probative value of Exhibit 5. It has been assumed below that the document was found in the possession of the accused and therefore that, as put

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by the Chief Justice of Ontario in giving the majority reasons, "the finding of a document of the nature of exhibit five is prima facie evidence against him". Surely the finding of the document itself is not sufficient and it must have been found in the possession of the accused. Was it found in his possession?

The appellant was born in Calabria but so were thousands of other residents in Metropolitan Toronto. The document is in the Italian language, or perhaps more particularly, as I shall discuss later, in an Italian dialect, and Calabria is a district in Italy. The document was found in the form of sheets of notepaper written by hand in a dialect and contained in a plastic container to­gether with household bills on the first shelf of a cupboard in the kitchen of a house occupied by the appellant.

The appellant was confronted with each of the other items taken by the police officers from the appellant's residence and was questioned in refer­ence thereto. He was not confronted with this ex. 5. It was never mentioned to him and the record contains no statement from either the appellant or anyone else in his family or anyone who could be said to be connected with him in any way indicat­ing the appellant's knowledge of that document.

Under the common law in civil cases, it has been determined, although not invariably, that one was in possession of whatever was physically in prem­ises occupied by him whether he knew or not of even the existence of such chattels: South Staf­fordshire Water Company v. Sharman[2]. Surely, however, when it is sought to draw an inference of "connection with criminal activity", to again use the words of the Chief Justice of Ontario, a much more appropriate test of possession is that found in the Criminal Code.

Section 3, subsection (4), of the Criminal Code provides:

3. (4) For the purposes of this Act,

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 (a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

To find a person in possession by that section, it must be shown that he had the article in his personal possession, and here it was not, or know­ingly had it in any place whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person. As I have said, despite the fact there was opportunity to obtain that evidence had the police chosen to do so, there was in fact no evidence that the appellant had the document knowingly in any place, and I am, therefore, of the opinion that the Crown failed to prove that this document was in the possession of the appellant.

It would be sufficient to dispose of the appeal upon this basis. It is not a case of an article found in some place which is in the sole custody of an accused person, for instance, his own bedroom drawer and where the accused simply denies knowledge of it; there would be many circum­stances which would permit a court to disbelieve such denial of knowledge. Here, there was no attempt to find out from the appellant whether he knew of the existence of the document and the document was not in his personal room or clothes but was in the kitchen evidently quite casually stored with household accounts. The much more natural tie-up of possession would be with the appellant's wife and not with the appellant. To put it briefly, I am of the opinion that the police procedure upon the discovery of this document defeated the police from being able to show that it was in the appellant's possession. This view would itself be sufficient to allow the appeal because, as I

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have said, if the document was not proved to be in the appellant's possession then the existence of that document could not be added to the other circumstances which I have cited above. Therefore, there certainly could be no prima facie case for a conviction upon the charge of possession of a weapon for a purpose dangerous to the public peace.

Moreover, even if this document should be held to be legally in the possession of the appellant in such circumstances as would permit an inference of his knowledge of the contents, then a further problem arises as to whether it is admissible to prove that the appellant's possession of the pistol was for a purpose dangerous to the public peace. Sergeant Chiarot and Dr. Sabatino described the document, one might summarize, as being the constitution and rituals of a secret society in Italy which preached and practised violence. The Crown relied particularly upon the evidence of a recog­nized expert, Dr. Sabatino, who would appear to have been a very senior officer in the criminal police of Italy and a director within its Mafia investigation services. Dr. Sabatino's evidence was extremely lengthy, both in chief and in cross-examination, but since the whole purpose for the calling of this evidence was to show that a person in the possession of that document must have some connection with that secret criminal organization in Italy, his answer on the specific point should be considered. He was asked this question by the Crown:

Q. Have you been able to form an opinion as to the position of the person who would be in possession of a document such as Exhibit 5?

After objection and argument, the questioning continued:

BY THE CROWN: Q. Well, just answer "yes" or "no", first of all, Doctor Sabatino. Have you been able to come to such an opinion?

A. On what, sir?

Q. The position of the person who would be in posses­sion of Exhibit 5?

A. Yes.

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Q. Now, upon what did you base that opinion?

 

A. I would base it on two fundamental motives. First of all, I would see if the person has possession of this code, whether he would have it for professional reasons because a person that studies sociology, or newspaper man or a police officer, excluding all this, then I would examine the code in relation to the other elements. To the places that the subject frequents as far as consummations of crimes, etc. Then I would form an opinion as far as that person that he does belong to the Mafia.

Q. Would the question of whether or not, for exam­ple, an unauthorized firearm found in the saine house—

Objection and argument.

Q. Doctor Sabatino, assuming it were a fact, would the fact that an unauthorized firearm was found in the same home as Exhibit number 5 have any bearing upon your opinion regarding the position of the person who had possession of Exhibit 5?

A. In Italy, my duty is not to adjudicate but as far as a Magistrate calling the attention of the Magis­trate in this respect, in the presence of the codice and the arm, there are two things I would consid­er—

THE COURT: We are wasting time, I think Mr. Armstrong.

THE CROWN: Sorry, Your Honour?

THE COURT: I say I think we are wasting time. THE CROWN: I thought he was about to — THE COURT: Well, is the answer coming?

THE INTERPRETER: I was just-one more word, Your Honour.

THE WITNESS: I would consider it the same thing.

BY THE CROWN: Q. I am sorry?

A. Having the gun in the same house where this document was found, I would consider the same thing but it is up to the Magistrate to decide in it.

BY THE COURT: Well, Doctor, you say you have studied the methods and organization of the Mafia?

A. Yes, sir.

Q. Well, are there ranks within the Mafia?

A. Yes.

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Q. You mean you have the men that do the work and others that give orders and directions?

A. Yes. Yes, It would be like a pyramid, sir.

Q. Well, are the workers not allowed to bear arms or
have this type of document in their possession?

A. As far as these documents, sir, I have the impres­sion that there is few in circulation. During my activity either through the personnel or my own knowledge, we have followed hundreds of searchings or thousands of searchings during the period of ten years and we have only found few, very few, of similar codes. There are copies that might be around but not many.

As far as we are concerned, this is not a funda­mental element. Depends on what crime that person has done; a Mafiosa crime or what. First of all, extortion, sir.

Arnup J.A. summarized that answer in these words:

I do not find in it any testimony justifying a finding that without any external evidence linking the accused to the organization or to some kind of activity in which the organization engages, the mere prossession of this very rare document gives rise to an inference of "connection" with the organization.

As I read his evidence this witness testified to the contrary effect.

I am in complete agreement with Arnup J.A.'s statement and I think that the testimony of Dr. Sabatino must be considered in the light of the evidence given for the defence by Professor Chan­dler. It is true that the learned trial judge found that Professor Chandler's evidence was not of much assistance to him and that such evidence seemed entirely divorced from reality but that evidence, being a matter of expert opinion in no way dependent on credibility, may be assessed as well by this Court as by the learned trial judge and that evidence, I think, demonstrated quite conclu­sively that the document, if it were the constitution and rituals of a secret organization and not a mere collection of antiquities from various sources many of which were designated by Professor Chandler, was a constitution and set of rituals of an organi­zation which flourished in Naples and not in Calabria and which died after a historic trial in

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1912-60 years before the document was found in the residence of the appellant. I cannot imagine a more fragile ground for an argument that the appellant was linked with some unnamed and unoutlined criminal organization. If there were some modern day, or, more properly, 19th Century Viking writers, would one's possession of some of the sagas show that he had not a mere antiquarian interest in ancient forebears but an active membership in a present day collection of criminals? How can this slim evidence constitute proof beyond reasonable doubt? To merely state the proposition is to disprove it.

For this reason, even if Exhibit 5 had been proved to be in the possession of the appellant, then I am of the opinion that it has no probative value to show that the appellant possessed this weapon for a purpose dangerous to the public peace. Therefore, I am in agreement with Arnup J.A. that the Crown has not proved a prima facie case upon the charge.

In view of the fact that without this evidence there is nothing upon which the Crown could base the charge, I would allow the appeal upon this count and not merely grant a new trial but direct an acquittal.

The judgment of Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—Appellant was convicted at Toronto, on June 30, 1972, by His Honour Judge Moore of the following charges:

(1) possession, without lawful justification or excuse, of six counterfeit Bank of Canada $10 notes, contrary to the Criminal Code, section 408;

(2) possession of a weapon, to wit, a .25 calibre pistol for a purpose dangerous to the public peace, contrary to the Criminal Code, section 83;

(3) possession of a restricted weapon, to wit, a .25 calibre pistol for which he did not have a registration certificate issued to him, contrary to the Criminal Code, section 91.

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Following these convictions, sentence was passed as follows:

(1) Twelve months;

(2) Six months, to be served consecutively to the previous sentence;

(3) $150 or, in the alternative, two weeks imprisonment consecutive to the terms previously referred to.

The Court of Appeal was unanimous in dismiss­ing the appellant's appeal with respect to counts 1 and 3. It is to be noted that, as to count 3, appellant had pleaded guilty at the trial but had argued that the introduction of exhibit 5, of which more later, vitiated the whole trial.

Before we turn to the examination of count 2, which is the only one at issue before this Court, it should be noted that appellant's wife, Rosa Cac­camo, had been convicted with him of possession of counterfeit money, a conviction unanimously set aside by the Court of Appeal which directed that a verdict of acquittal be entered in her case.

To establish that the possession by appellant of a .25 calibre pistol was for a purpose dangerous to the public peace, the Crown relied on the following circumstances which were accepted by the trial judge:

(1) the possession by the accused of the six $10 counterfeit bills which were the basis of the conviction under count 1;

(2) the possession of a loaded pistol on top of a wardrobe in his bedroom, in a box with eight additional rounds of ammunition, which was the basis of the conviction under count 3;

(3) the possession by the accused in his trouser pocket of $1,713 in cash;

(4) the discovery on the first shelf of a kitchen cupboard of handwritten notes in Italian which were filed as exhibit 5.

The circumstances of this discovery and the impact of those notes on the case are summarized

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by Gale, C.J.O., whose judgment is reported at 11 C.C.C. (2d) 249 (p. 253):

The accused's house was searched by the police pursuant to a warrant alleging that certain firearms were suspected of being present there. During that search, the coun­terfeit money and a .25—calibre pistol were both found in the dresser in the accused's bedroom. In a kitchen cupboard, the police also found the handwritten notes, in Italian, which at the trial became ex. 5. They seized the notes without the appellant's knowledge and without asking him for any explanation as to what they were. At trial, the Crown introduced the notes as an exhibit and called two expert witnesses to explain their significance and meaning. One witness was an R.C.M.P. officer with extensive experience in Italy as an assistant to Canadian immigration officials, which duties had given him knowledge of the workings of secret criminal organiza­tions in Italy. The other witness, one Dr. Alberto Sabati­no, was a senior Italian police official, with special knowledge of secret criminal organizations, such as the Mafia. Both men indicated that the document seized in the appellant's home was a type of constitution of a secret Italian criminal organization related to the Mafia and that anyone in possession of it almost certainly had to belong to the organization. The defence also called an expert witness, a Dr. Chandler, who stated that the organization described in the document was virtually extinct since 1912 and had no relationship to the Mafia. The Crown tendered this evidence, of which the defence had no prior notice, as relevant to the issue of whether the accused's possession of the pistol was for a purpose dangerous to the public peace.

As to count 2, the question was expressed in the following terms by Gale, C.J.O., at p. 254:

Did the mere possession of ex. 5 by the male accused so connect him with the organization about which it is written as to permit the inference that his possession of the gun was for a purpose dangerous to the public peace?

An affirmative answer was given to that question by a majority of the Court, the dissenting view of

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Arnup J. being expressed in the following terms in the Order of February 14, 1973:

there was no evidence upon which the trial judge could find that the possession of the weapon was for a purpose dangerous to the public peace.

On the basis of that dissent, an appeal as of right was entered by appellant upon which the Crown moved to quash the appeal for lack of jurisdiction on the ground that there was no dissent in the Court of Appeal on a question of law. This application to quash was dismissed by five judges of this Court on April 30, 1973, without reasons.

While the question of jurisdiction has not been pressed before us, I wish to underline that on the sole basis of the reasons for judgment delivered by Arnup J., I would hesitate to recognize that we have jurisdiction as of right, his reasons appearing to go to the weight of the evidence and not to its non-existence. Should these reasons be considered as having been completed by the Order of Febru­ary 14, 1973, so as to bring into play the classic distinction between "no evidence" and "insuffi­cient evidence", expressed again in two recent decisions of this Court: R. v. Caouette[3]; Parnerkar v. The Queen[4]?

I am strongly inclined to the view that the thinking of Arnup J. is to be found in his reasons and not in the Order and that accordingly we have no jurisdiction as of right. Be that as it may, I am ready to adopt the pragmatic approach taken by this Court in Steinberg v. The King[5] and to exam­ine the merits of the admissibility of exhibit 5.

In the case at bar, there is a second point at issue by special leave of this Court, namely the following question of law:

Did the failure of the Crown to disclose to the defence the existence of exhibit 5 until after the trial had commenced constitute a miscarriage of justice?

I—Admissibility of exhibit 5

The Crown, of course, had the burden of prov­ing that the exhibit in question had been found in

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the possession of the appellant. The courts below undoubtedly came to the conclusion that this point had been established because all of the judges examined the question of admissibility in the light of such a possession. Indeed, Arnup J., in his dissent, writes that "the mere possession of the document" does not connect the accused with the mafia organization. Such concurrent findings in the courts below cannot be the result of an over-sight considering that the provisions of s. 3(4) of the Criminal Code had been argued at length in connection with another aspect of the case.

ln the circumstances, appellant cannot succeed on this ground. The possession of s. 3(4) of the Criminal Code is a question of fact capable of proof by inference. The courts below having reached a unanimous conclusion on that basis the matter must end there, because the facts proved are sufficient to support that inference.

It is not necessary therefore to invoke in support of the conclusion that the appellant was in posses­sion of exhibit 5 the principle that "when a hus­band and wife live together, it is a presumption of law that the husband is in possession and control of the premises in which they reside". See R. v. Lawson[6], (British Columbia Court of Appeal); R. v. Mandzuk[7], (British Columbia Court of Ap­peal); R. v. Tokarek[8] (British Columbia Court of Appeal).

Possession of exhibit 5 by appellant having been established, it remains to be seen whether, in the circumstances, the mere possession of a document of this sort, in the absence of further evidence connecting the appellant with a criminal organiza­tion, did in law entitle the magistrate to draw the inference that appellant was a member of such organization and therefore had possession of the weapon for a purpose dangerous to the public peace. In my view, this submission has been answered fully by the majority in the Court of

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Appeal and I would adopt on this point the reasons of Gale, C.J.O.

Counsel for appellant, however, has referred us to a number of authorities which, in his submis­sion, establish that exhibit 5 was not admissible because not relevant. In my view, the major deci­sions to which we have been referred do not bear out this conclusion.

In Thompson v. The King[9], the prosecution on a charge of gross indecency tendered evidence that on the occasion of his arrest the appellant was carrying powder puffs and that in his rooms were found indecent photographs of boys. The House of Lords held that, in the special circumstances of the case, the evidence was admissible on the issue of identity. However, the speeches of the learned Lords indicate that in fact, in other circumstances, documents found either on the person or in the room occupied by an accused person could very well be accepted in evidence for other purposes.

In Picken v. The King[10], a decision of this Court, a new trial was ordered because there had been produced before the jury in a case of abortion various articles found in the home of the accused by the police, acting on a search warrant, when these articles had no real pertinency between the Crown and the accused. However, Duff, C.J., speaking for the Court, was careful to point out that he was making an exception for the "knitting needle and the bicycle spoke".

Emkeit v. The Queen[11], does not add to the above, the problem being of a very different nature, namely the reading of an inflammatory poem by Crown counsel in presence of the jury.

More to the point, it seems to me, is our decision of Prosko v. The King[12] where three judges

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expressed no hesitation to accept that it was proper for the Crown to produce the articles found in the room of the appellant charged with murder. Idington J. had this to say at p. 235:

The only other question upon which counsel for appel­lant rested his appeal was the fourth question on the stated case, which reads as follows:

Was there error in permitting the Crown to produce before and exhibit to the jury as exhibits certain objects which were found in the possession of one or other of the accused on or in the premises occupied by one or other of them?

I, with great respect, find it difficult to treat such a question seriously. Some of the articles found were not worthy of serious consideration by the jury, but the false moustache and flashlight, for example, were important items well worthy of consideration in a case such as this dependent to so great an extent as it was upon circum­stantial evidence.

That which was incapable of being fitted into the chain of circumstances to be relied upon, of course, would be discarded by the jury to whom we must attribute common sense.

It became the duty of the crown officer to present the suit-case contents as found and let the jury determine what was relevant and what was not. And then not leave the impression that accused was so intent in pursuit of easy money that he could think of nothing else, and hence carried only false moustaches, flashlights or glass cutters.

As to what constitutes admissible evidence, I cannot do any better than to refer to R. v. Wray[13]

II—Miscarriage of justice

It is common ground that exhibit 5

(a) was not mentioned at all during the preliminary enquiry;

(b) was not disclosed to the defence prior to the

(c) beginning of the trial;

was mentioned for the first time during the

second day of the trial.

It is, of course, now settled law that the sole Purpose of the preliminary enquiry is to satisfy the

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magistrate that there is sufficient evidence to put the accused on trial and that, therefore, the Crown has the discretion to present only that evidence which makes out a prima facie case. Patterson v. The Queen[14]; R. v. Epping[15].

However, counsel for the accused has put to us the following question:

Was the prosecution under a duty prior to the start of the trial to inform the defence of the existence of exhibit 5 and of its intention to introduce into evidence that exhibit?

In my opinion, the answer to that question must be in the negative.

The basic rule is that expressed in Lemay v. The King,[16] where it was held

that counsel acting for the prosecution has full discre­tion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive (of which there is here no suggestion). This is not to be regarded as lessening the duty of the prosecutor to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise. The appeal should be dismissed since there was no obligation on the Crown to call either Powell or Lowes at the trial.

It is within the framework of the adversary system, under which our criminal law is administered, that the accused must be guaranteed a fair trial.

In that light, if the introduction of new evidence at the trial takes the accused by surprise, obviously he is entitled to a postponement. Here this post­ponement was accorded to the accused to the point that when the trial did proceed, he was in a position to adduce the evidence of his own expert as to the import of exhibit 5, namely Professor Chandler.

Appellant, however, submits that he has been prejudiced on two counts:

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(1) his cross-examination of Detective Turner would have been conducted in a different light;

(2) it is possible that, had he known of the existence of exhibit 5 and of the intention of the Crown to use it, he would have maintained bis option to be heard by a judge and jury.

As to the first point, we have been referred to the following questions and answers at the begin­ning of Detective Turner's cross-examination:

Q. Now, Detective Turner, just to recap, you said that you arrived at about 5:50 p.m. on August 1st at the Caccamo home?

A. 5:50, yes, sir.

Q. Right. And your purpose in going there was to conduct a search?

A. Yes, sir.

Q. In accordance with the warrant which has been introduced as an exhibit? A. Yes, sir.

Q. And that was to search for firearms?

A. Yes, sir.

Q. Now, was the presence of counterfeit money con­templated at all in the mind of the people execut­ing the warrant?

A. Not in my mind, no, sir.

Q. Have you any previous knowledge before execut­ing that warrant of Mr. Caccamo? A. None that I know of, no, sir.

Q. Or Mrs. Caccamo?

A. No, sir.

Q. Are you aware whether or not there are any records or if there is any information on file about him in the Police Department?

A. Not to my knowledge, sir.

Q. Did you check that before such time as you execu­ted the warrant?

A. No, sir.

I fail to see what prejudice has been suffered by the appellant as a result of this cross-examination. His character was not put into question by any of the answers given by Detective Turner and it is difficult to imagine that any harm has been done. It is true that in a general way the character of the appellant was at stake but until exhibit 5 was offered in evidence on the second day of the trial, nothing had taken place that, in my view, would

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have given another direction to the examination or cross-examination of the witnesses heard till that time.

The second consideration, namely the option, we are told by counsel, has never been examined by any court. The right to the proper forum is indeed a major one belonging to the accused. That forum is determined by statute and, in the cases spelled out in the Criminal Code, the accused had a choice. Of course, the Code does not state that in a case like the one at bar, the choice is vitiated if made before the accused learns at least the substance of all the evidence to be adduced against him. We are asked here to decide that such is the result of the Crown's failure to supply the accused with at least a summary of the substance of the evidence before the expiry of the delays governing the option.

To help us in reaching a decision, we have to keep in mind what has been underlined above, namely

(1) that the Crown does not have the obligation to show all of its evidence at the preliminary enquiry;

(2) that, in conducting its case, the Crown has the discretion defined in the Lemay case above;

(3) that, over the years, the sole effect of the introduction of new evidence at trial has been to allow the accused to obtain a postponement of the trial.

Against this background, it becomes obvious that when the accused makes its option to be tried by a judge alone or by a judge and jury, the law does not expect him to make that decision in the light of the evidence but rather in the light of the charge.

Of course, I do not deny that there could be cases where the option made could be set aside if in fact there has been a miscarriage of justice. Such was not the case here.

On this point, I adopt the reasons of Gale, C.J.O., at p. 252, who, although he was then speaking of count 1, expressed comments equally applicable to count 2:

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It was also argued, with respect to count 1, that the introduction of ex. 5, which is apparently one of the rare statements or codes of the Mafia organization, without prior disclosure by the Crown to defence counsel, ren­dered the trial abortive, particularly when counsel had already re-elected for a trial by Judge alone, without knowledge that this evidence existed and would be ten­dered by the Crown. We do not agree that such non-dis­closure gave a right to the accused to have the trial declared abortive and to re-elect for a trial by Judge and jury. Nor did it detract from or prejudice the action of defence counsel in re-electing trial by Judge alone. It does not seem to us to be right to say that a trial becomes abortive because evidence in the possession of the Crown is not disclosed to the defence prior to the opening of the trial. In this case, the Crown might have revealed its possession of the document, although I do not think this Court is able to pass on that. However, the failure to do so did not produce a mistrial, particularly because the defence, after the disclosure of the docu­ment, was given ample opportunity—indeed, as much opportunity as they wished—to see the document, exam­ine it and take whatever position they wished in that regard. In my opinion, there was no prejudice to the accused, because really what the claim to a right of re-election amounts to is an assertion that there was some prejudice, or that it was a miscarriage of justice, to allow the trial to proceed before the County Court Judge without a jury. We do not agree that amounts to prejudice in any sense of the word.

I might add that in reaching a conclusion as to whether or not a miscarrage of justice exists, the courts are entitled to take into account the fact that the accused did not testify, which is the situation in the case at bar. I would refer on this point to R. v. Boucher et al.[17]. a decision of the Court of Appeal of British Columbia; R. v. Cipolla[18], a decision of the Court of Appeal of Ontario; R. v. Greenlaw (No. 1)[19], a decision of the Court of Appeal of New Brunswick.

For all these reasons, I would dismiss the appeal.

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Appeal dimissed [sic], LASKIN C.J. and SPENCE J. dissenting.

Solicitor for the appellant: Arthur Maloney, Toronto.

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