Supreme Court of Canada
R. v. Paul, [1977] 1 S.C.R. 181
Date: 1975-04-22
Her Majesty The Queen Appellant;
and
Louis Edouard Paul Respondent.
1974: October 9; 1975: April 22.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Possession of stolen goods—Motion for nonsuit—Sufficiency of evidence or absence of evidence—Rule in Hodge’s Case not applicable—Criminal Code, R.S.C. 1970, c. C-34, s. 312.
Respondent was charged with being in possession of two television sets knowing them to have been stolen. The Crown presented no evidence and relied solely on the admissions of fact. These disclose that the two television sets were loaded on a freight car which was sealed when the car left Brockville and the seal upon which was unbroken when it arrived in Montreal. Neither of the consignees received these television sets, which were found when the police searched the premises of respondent. Respondent then filed a motion of nonsuit on the ground that there was no evidence that the goods had been stolen. The judge of the Court of Sessions of the Peace granted the motion. This decision was affirmed by a majority of the Court of Appeal of Quebec. Hence the appeal to this Court.
Held (Laskin C.J. and Spence and de Grandpré JJ. dissenting): The appeal should be allowed.
Per Martland, Judson, Ritchie, Pigeon, Dickson and Beetz JJ.: A motion for nonsuit cannot be granted unless there is no evidence on which a jury acting reasonably might have convicted the accused. The test propounded in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, was concerned with the weight to be attached to the evidence, whereas here the question is whether there is any evidence to weigh. The admissions constitute evidence upon which a jury might reasonably have concluded that the goods were stolen and that respondent knew that they had been obtained by theft. Even if the facts can be otherwise interpreted, the burden upon the Crown is not to negative every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused.
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Per Laskin C.J. and Spence and de Grandpré JJ., dissenting: Even if there is no question that on a motion for nonsuit the accused can only be released if there is an absence of evidence, that does not mean that the motion must be dismissed whenever there is an iota of evidence, no matter how inconsequential this may be. In the case at bar theft was an essential element of the charge and the Crown did not submit evidence that there was a theft in the car in which the television sets were placed, or that the consignees were unlawfully deprived of them. The doctrine of recent possession must be dismissed if its foundation, namely the theft, is not established.
[Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, distinguished; R. v. Mitchell, [1964] S.C.R. 471, considered; Feeley et al. v. The Queen, [1953] 1 S.C.R. 59; R. v. Morabito, [1949] S.C.R. 172; R. v. Comba, [1938] S.C.R. 396; R. v. Schama; R. v. Abramovitch; (1914), 84 L.J.K.B. 396; Ungaro v. The King, [1950] S.C.R. 430; R. v. Mclver, [1965] 1 O.R. 306; Wild v. The Queen, [1971] S.C.R. 101; R. v. Bagshaw, [1972] S.C.R. 2; R. v. Kyling, [1970] S.C.R. 953, referred to]
APPEAL from a decision of the Court of Appeal for Quebec, affirming a judgment of the Court of Sessions of the Peace granting a motion for nonsuit. Appeal allowed, Laskin C.J., Spence and de Grandpré JJ. dissenting.
G. Fortier and P. Sauvé, for the appellant.
G. Thouin and Fernande Rainville-Laporte, for the respondent.
The judgment of Laskin C.J. and Spence and de Grandpré JJ. was delivered by
DE GRANDPRÉ J. (dissenting)—The Crown asks this Court to set aside a judgment of the Court of Sessions of the Peace granting a motion of nonsuit, a judgment affirmed by a majority of the Court of Appeal.
The indictment reads as follows:
[TRANSLATION] On or about January 12, 1972, did unlawfully have in his possession two (2) R.C.A. Victor television sets, a Sylvania television set and a Phono-Sonic stereo, the whole having a value of approximately $1,875, the property of various persons, in which Canadian National has a special interest, knowing that the said items were obtained by the commission in
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Canada of an offence punishable by indictment, namely: a theft, committing thereby a criminal offence, prescribed by s. 312 of the Criminal Code.
The appeal is concerned only with the two R.C.A. Victor television sets, as the Crown admitted in the Quebec courts that it lacked sufficient evidence with respect to the other two items.
In the case at bar the Crown summoned no witnesses, relying solely on the following admissions:
[TRANSLATION] …the parties agree to admit that:
(1) on January 11, 1972, two (2) R.C.A. Victor television sets, produced as Exhibits P-1 and P-2 and here present in the court, shipped to Paradis T.V. Enregistré of St‑Pascal, Province of Quebec, and to Ouellet & Fils Limitée of Rimouski, Province of Quebec, were delivered at Prescott, Province of Ontario, by Mr. Thomas Degroot, shipper with R.C.A. Victor Limited, to Mr. Francis Ferguson, driver for Canadian National;
(2) this delivery was recorded in two (2) contracts of carriage numbered P-10 403 and P-14 01976, signed by Messrs. Degroot and Ferguson;
(3) on the same day Mr. Ferguson delivered the two (2) R.C.A. Victor television sets to Mr. Pervus Dillabough at Brockville, Province of Ontario;
(4) this delivery was recorded on the aforesaid contracts of carriage;
(5) Mr. Dillabough placed the two (2) aforesaid television sets in car CN 523257 of train No. 212, originating at Brockville and destined for Montreal, on January 11, 1972, and sealed the said car CN 523257 with seal No. C 441889-90;
(6) in Montreal, at about five fifty-five (5:55) A.M. on January 12, 1972, Mr. Thrimp (according to his testimony), the checker for Canadian National in Montreal, checked car No. CN 523257 in train No. 212, and found that the seals were intact;
(7) Ouellet & Fils Limitée and Paradis T.V. Enregistré did not receive the television sets they had ordered from R.C.A. Victor Limited in Prescott;
(8) the aforesaid television sets, together with a Sylvania set and a Phono-Sonic stereo, were found in a search conducted by officers of Canadian National and the Montreal Police at the premises of the accused, at
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about one-thirty (1:30) P.M. on January 14, 1972, at 8877 Tolhurst, in Montreal, Province of Quebec;
(9) if the police officers who carried out the investigation were heard, they would identify the accused as the person on whose premises they found the television sets on January 14, 1972.
The Crown having indicated that its evidence was concluded after the presentation of the foregoing admissions, the defence immediately moved for nonsuit; this motion was taken under reserve and finally granted. On this point the transcript reads as follows:
[TRANSLATION] The Court grants the motion of nonsuit and acquits the accused.
The Crown has not been able to present evidence establishing the allegation beyond any doubt.
Further, in his oral judgment, the trial judge said:
[TRANSLATION] I have concluded that the motion for nonsuit should be granted, as the Crown has not established to my satisfaction the commission of a prerequisite for the existence of the offence as stated, namely a theft.
Brossard J., speaking for the majority of the Court of Appeal, concluded that
[TRANSLATION] there is no evidence on the record establishing that the aforesaid articles were actually stolen (emphasis added).
Thus he concurs in the conclusion of the trial judge, while emphasizing that the language used by the latter was not especially well chosen, but that this could not have the effect of causing the trial judgment to be set aside, if no valid evidence really existed in support of one of the essential aspects of the information, namely theft. The relevant paragraph from the reasons of Brossard J. is as follows:
[TRANSLATION] Undoubtedly the trial judge would have been wiser not to go beyond the finding that no evidence of theft existed, and add the opinion that, in any event, he did not have before him evidence to support beyond any reasonable doubt a conviction of the accused of unlawful possession of stolen goods, knowing them to be stolen; but this can have no effect on the validity of the dismissal of the information for lack of evidence of theft of the goods found in the possession of
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the respondent, and accordingly of any link between such a theft and the possession of respondent.
Turgeon J. was of the same view, stating that there existed no
[TRANSLATION] evidence of theft of the articles found in the possession of respondent.
For his part, Lajoie J. summarized his dissenting opinion in the following way:
[TRANSLATION] The motion for nonsuit could only have been granted if there was a total lack of evidence against the accused. If there was any basis for assessing the sufficiency of the evidence, as in my opinion was the case here, the motion should have been dismissed and the accused called to state whether or not he had a defence to present. The judge could not proceed to assess the evidence and make a decision on the merits until after the conclusion of that evidence on both sides.
Relying on this dissenting opinion the Crown brought the case to this Court, stating the legal argument on which it relies as follows:
[TRANSLATION] Did the Court of Appeal of Quebec err in law in holding in its majority decision that there was a total lack of evidence in the record of the essential element of theft required to support the charge of unlawful possession of stolen goods?
There is no question that on a motion for nonsuit the accused can only be released if there is an absence of evidence. In this connection we need only refer to the remarks of Pigeon J. in The Queen v. Kyling, at p. 956:
Regarding the contents of the judge’s report, I must respectfully point out that an absence, not an insufficiency, of evidence is meant in the following reason: “the Crown did not adduce the evidence necessary to show that the charge is well founded”.
In The King v. Morabito, [1949] S.C.R. 172, this Court held that a nonsuit pronounced on a motion by the defence after the close of the case for the Crown is a decision on a question of law, namely the absence of evidence. This rule was also held applicable to summary proceedings by the judgment in Feeley et al. v. The Queen, [1953] 1 S.C.R. 59. I have found nothing in the 1955 Criminal Code that might imply a change in the principles underlying these judgments, nor has anything to this effect been brought to our attention.
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As Pigeon J. points out, the applicable principles were discussed more fully in Morabito and Feeley, and I adopt the reasons expressed in those cases.
However, the expression “absence of evidence” does not mean that the motion for a nonsuit must be dismissed whenever there is an iota of evidence, no matter how inconsequential this may be. On the contrary, a careful reading of Feeley, referred to above, discloses that there were few iotas of evidence in that case. Appellants had been acquitted at first instance on a motion for nonsuit, and the Court of Appeal had set aside this acquittal and ordered a new trial. This Court unanimously reinstated the judgment of acquittal with respect to three of the four appellants. Cartwright J., as he then was, speaking for the Court, emphasized that the various aspects of the evidence “taken together, are insufficient to make out a prima facie case” (p. 64). This conclusion must be read in the light of the following paragraph, taken from the reasons of Cartwright J. (at p. 60):
It is common ground that had the learned Magistrate refused the motion the appellants would have had the right to call evidence for the defence if so advised and counsel for the respondent submits that the decision of this Court in The King v. Morabito establishes (i) that at that stage it was not open to the learned Magistrate to dismiss the charge unless there was no evidence on which, had the trial been before a jury, a properly instructed jury, acting reasonably, might have convicted the accused, and (ii) that whether or not there was such evidence is “a question of law alone” within the meaning of section 1013(4) of the Code. I agree with this submission.
In my view, therefore, the judges of the Court of Appeal, on appeal by the Crown, applied the pertinent principles of law in examining the record.
It must now be considered whether Brossard and Turgeon JJ. were correct in concluding, as they did, that there was no evidence on the record establishing theft of the two television sets, in the sense that must be attributed to the phrase “absence of evidence”. On this point, Brossard J. observes:
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[TRANSLATION] In my opinion counsel for the respondent correctly maintained that there was no evidence on the record establishing that the aforesaid articles were actually stolen; the most that could be inferred from the Crown evidence and the admissions was that at some point, not specified, these articles, under circumstances that were not established, ceased to be in the possession of the carrier, and were not subsequently delivered into the actual possession of their original consignees. In my view, this evidence could not serve as the foundation of evidence of commission of a theft, whether from the shipper or the consignees. Conjectures and assumptions do not constitute evidence of the unlawfulness of possession.
I consider that this conclusion was correct.
In a case such as that before the Court, where the indictment charges respondent with unlawful possession of stolen articles, knowing that those articles were obtained by the commission of a theft, theft is an essential element which has to be established by the Crown: Geist v. The Queen, (Court of Appeal of Quebec); R. v. Vogelle and Reid, (Court of Appeal of Manitoba); R. v. Gowing, (Court of Appeal of Alberta).
If the Crown submits no evidence (in the sense defined above) of the commission of a theft, an accused who makes a motion for nonsuit must be acquitted. Moreover, the Crown concedes the merit of these principles, since it relies in its factum on [TRANSLATION] “proof that the buyers had not alienated the goods”, “the absence of evidence of any title in the accused to the said goods”, and “the other circumstances of the case”. In the case at bar, I have read and re-read the admissions which constitute the Crown’s only evidence, and I find absolutely no proof
(a) that there was in fact a theft in the car in which the television sets were placed; on the contrary, the last time this car was examined (para. six of the admissions) the seals were intact;
(b) that the consignees, namely Ouellet and Paradis, were unlawfully deprived of the televi-
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son sets; on the contrary, the only statement to be found in the admissions (para. seven) is that they were not received, but it is in no way alleged that such non-delivery was against their will.
The record thus contains no evidence of the theft alleged in the indictment, and consequently the entire argument of the Crown based on “recent possession” must be dismissed, since the foundation of that argument, namely the theft, was not established.
For all these reasons, I would affirm the judgment of the Court of Appeal and the acquittal of respondent.
The judgment of Martland, Judson, Ritchie, Pigeon, Dickson and Beetz JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of the Province of Quebec affirming the judgment rendered at trial in the “Cour des Sessions”, whereby the learned trial judge granted the motion for nonsuit advanced by the present respondent at his trial on a charge of being in possession of stolen goods knowing them to have been stolen, on the ground that there was no evidence that the goods found in the respondent’s pessession had been stolen. The conclusion of the learned trial judge, which was affirmed by a majority of the Court of Appeal (Lajoie J. dissenting) was phrased as follows:
[TRANSLATION] I have concluded that the motion for nonsuit should be granted, as the Crown has not established to my satisfaction the commission of a prerequisite for the existence of the offence as stated, namely a theft.
The Crown presented no evidence and this appeal falls to be determined in accordance with a statement of admitted facts which has been recited by Mr. Justice de Grandpré in the course of the reasons for judgment which he has prepared for delivery in this appeal.
In summary, these facts disclose that two R.C.A. Victor television sets produced at the trial had been shipped from Prescott, Ontario, by the C.N. Railway, one to Paradis T.V. Enregistré of St-Pascal and the other to Ouellet et Fils Limitée
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of Rimouski, and that these sets were loaded on a freight car which was sealed and the seal upon which had not been broken when it arrived in Montreal in the early hours of January 12, 1972. Neither of the consignees received these television sets, both of which were found when the police searched the premises of the respondent in Montreal on January 14, 1972.
It was agreed also that if the police officers who effected the search had been heard at the trial they could have identified the accused as the person in whose premises the television sets were found.
The position of a Magistrate in considering a motion for nonsuit is authoritatively described by Cartwright J., as he then was, in Feeley and others v. The Queen, at p. 61 where, after making reference to the case of R. v. Morabito, he adopts the submission
…that at that stage it was not open to the learned Magistrate to dismiss the charge unless there was no evidence on which, had the trial been before a jury, a properly instructed jury, acting reasonably, might have convicted the accused, and (ii) that whether or not there was such evidence is “a question of law alone” within the meaning of section 1013(4) of the Code.
The underlining is my own.
On the admitted facts the two television sets were known to have been in a sealed C.N.R. freight car in Montreal en route to their respective destinations at St-Pascal and Rimouski in the early hours of January 12th. They were never received by the consignees, but two and a half days later had found their way to the respondent’s premises in Montreal and I am of opinion that from these facts a properly instructed jury might reasonably have drawn the inference that they did not get there without having been stolen by somebody.
It is suggested, however that as the evidence disclosed by the admissions is purely circumstantial, the proper test to be employed in assessing the
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weight to be attached to it is that first propounded by Baron Alderson in charging the jury in Hodge’s Case, which was adopted by Sir Lyman Duff, C.J., on behalf of this Court in R. v. Comba. This test is, however, to be read in light of what was said by Spence J., speaking on behalf of the majority of this Court in R. v. Mitchell, at p. 478, where he said:
Does the fact that evidence is circumstantial necessarily require that an instruction be given to the jury in accordance with that which was given in Hodge’s Case!
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 underlining is my own)
This statement was reaffirmed in R. v. Bagshaw, at p. 6. (a case of theft).
We are not concerned here with the identification of the thief. The issue is not who stole the goods, but whether there is any evidence justifying the inference that they were stolen. It should be observed also that the rule in Hodge’s Case, supra, which was reaffirmed in R.v. Comba, supra, was concerned with the weight to be attached to the evidence, whereas here the question is whether there was any evidence to weigh.
It is admitted that the goods in question were found in the accused’s home on January 14, 1972, and if the admissions constitute evidence upon
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which a properly instructed jury might reasonably have concluded that the goods were stolen, it would follow that they might also have concluded that the respondent knew that they had been obtained by theft in accordance with the rebut-table presumption to which such possession would give rise. See R. v. Schama: R. v. Abramovitch, Ungaro v. The King, and many other cases in this Court.
It is said, however, that the admitted facts are capable of being construed as leading to other rational conclusions than the theft of the goods such as the conclusion that the consignees were a party to their goods being diverted from the custody of the railway company to the home of the accused. As to this contention reference may be had to the statement made by McRuer, C.J.H.C. in R. v. Mclver, at p. 309, which was adopted in this Court in Wild v. The Queen, and in R. v. Bagshaw, supra, and where it is 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.
I do not think that the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt includes the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused.
As I have indicated, however, I do not think that the judgment of Sir Lyman Duff in the Comba Case, supra, in which he reiterates the rule in Hodge s Case has any application to the circumstances here disclosed. I am rather of opinion, as indicated by Mr. Justice Pigeon in R. v. Kyling,
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at p. 957, that the true test to be applied before granting a nonsuit is whether the Crown evidence gives rise merely to a suspicion or whether it is such as to justify the drawing of an inference.
In my view the facts disclosed in the admissions are such that a properly instructed jury might reasonably draw the inference that the goods had been stolen, and as there was no evidence to support any other rational conclusion, I am of opinion that this was not an appropriate case in which to grant an order of nonsuit, and I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and the verdict of acquittal and direct a new trial.
Appeal allowed, LASKIN C.J. and SPENCE and DE GRANDPRÉ JJ. dissenting.
Solicitor for the appelant: Guy Fortier, Montreal.
Solicitor for the respondent: Gilles Thouin, Montreal.
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