R. v. Lovis; R. v. Moncini, [1975] 2 SCR 294

Supreme Court of Canada

R. v. Lovis; R. v. Moncini, [1975] 2 S.C.R. 294

Date: 1974-06-28

Her Majesty The Queen Appellant;

and

Wayne Bernard Lovis Respondent.

Her Majesty The Queen Appellant;

and

Lucien Raymond Moncini Respondent.

1974: May 15, 16; 1974: June 28.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Robbery and possession of stolen automobile—Circumstantial evidence—Charge to jury—Instructions as to law applicable in determining whether certain articles in possession of both accused—Whether misdirection in application of s. 3(4) of Criminal Code, R.S.C. 1970, c. C-34.

The respondents L and M were each convicted, after a jury trial, on two counts, one of robbery and one of possession of a stolen automobile. The trial judge considered that the presence of certain articles in a car driven by L, in which M was a passenger, was of considerable importance. The articles included a briar pipe, a tie-down, a hand gun’s price tag, which was an important evidentiary link to the robbery, and a note alleged to relate to the plans for escape after the robbery. The pipe and the tie-down had been removed from a stolen car alleged to have been the getaway car following the robbery. The trial judge undertook to instruct the jury as to law applicable in determining whether these items could be said to be in the possession of both L and M and in so doing he directed the attention of the jury to the provisions of s. 3(4) of the Criminal Code.

The Court of Appeal, on considering the respondents’ appeals from conviction, directed a new trial. Two of the members of the Court agreed with the submission of counsel for the accused that s. 3(4) is applicable only where it is necessary to interpret the word “possession” in a provision of the Criminal Code and they held that there had been an erroneous

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application of that provision prejudicial to the accused.

Held: The appeal should be allowed and the verdict at trial restored.

The majority of the Court of Appeal erred in their interpretation of s. 3(4) of the Code. Section 3(4) does not purport to define the word “possession”. It provides, generally, that for the “purposes” of the Act possession may be established in certain ways. The words “for the purposes of this Act” are broad enough to encompass all proceedings brought under the Code.

The trial judge was not in error in stressing the requirements of s. 3(4) for establishing possession of the four articles to which he referred. Here, as in Reference re R. v. Coffin, [1956] S.C.R. 191, a rule relating to possession of certain articles was used to link the accused to pieces of evidence in respect of a crime in which their possession was not, otherwise, a material element. The operation of s. 3(4) was an important element in the appellant’s attempt to connect the accused to the evidence as to the stolen car and to the robbery and it deserved full attention in the charge to the jury.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing the appeals of the accused from their convictions, after a jury trial, for robbery and possession of a stolen automobile. Appeal allowed.

G.L. Murray, Q.C., for the appellant.

S.B. Simons, for the respondents.

The judgment of the Court was delivered by

MARTLAND J.—Each of the respondents was convicted, after a jury trial, on two counts, one of robbery and one of possession of a stolen automobile. They appealed to the Court of Appeal for British Columbia, which ordered a new trial. From that judgment the Crown appeals to this Court, by leave, on a stated question of law.

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A car owned by James A. Brown was stolen from him on August 26, 1971. In the car at that time were various objects, including a briar pipe and a rubber “tie-down”. Brown’s car, a Chevrolet Impala, was blue-green in colour with a white top. It was recovered on August 27, 1971, in the vicinity of Alta Lake, British Columbia, and when it was recovered the briar pipe and the “tie-down”, along with other articles, were missing.

The Bank of Nova Scotia at Alta Lake was robbed about 12:45 p.m. on August 27 and, in connection with the robbery, an automobile was used as an escape vehicle which was described by witnesses as having a blue body with a white top. A gun was used in the robbery by one man who entered the bank wearing a mask, sunglasses and an artificial beard. The gun was described by the teller as having “an eight or ten inch barrel on it” and as being “very dark, black, and quite clean looking”.

The man who entered the bank was identified by the teller as the respondent Lovis, but under cross-examination she admitted that this was a “well educated guess”.

The driver of the “get-away” car, who did not enter the bank, was described by the witness Zebrowsky, who was in the bank at the time of the robbery, as wearing “long yellow gloves”.

At or about the time the bank was robbed, the witnesses Goddard and Straight saw an older model, light-coloured Chevrolet parked on a side road not far from Whistler ski lift and both witnesses identified the respondent Moncini as sitting in that car.

On August 11, 1971, a hand gun was missed from a store owned by Mrs. Janowsky at Gibson, British Columbia. Attached to the gun was a price tag and Mrs. Janowsky was able to

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identify both the gun and the price tag when they were found in the circumstances described later.

The witness McConkey, the ski school director at Whistler, drove up behind the ski shop at about noon on August 27 and noticed a blue-coloured car parked there with two men in it and a third man standing beside it. When he came out of the shop about three-quarters of an hour later the car was gone. McConkey later saw the car at the police station in Squamish. McConkey identified Lovis and McConnell as two of the men he saw at the ski lift, at a line-up after the respondents had been apprehended. Later in court when the two accused had been seated among the spectators, McConkey picked out Lovis and one McLaren (who was not involved) and Moncini as a possibility.

At about 1:40 p.m. on August 27, an R.C.M.P. constable was at a road block on the highway leading from Alta Lake to West Vancouver and stopped a light-blue Chevrolet. There were three occupants of the car—Lovis was driving, Moncini was in the back seat and one McConnell Was seated beside Lovis in the front seat. In the car were three sleeping bags, together with a number of articles similar to those stolen from Brown. Brown positively identified a briar pipe on the back window as having come from his car. He also positively identified a rubber “tie-down” which was found on the floor of the back seat as having come from his stolen car. The R.C.M.P. constable, Lawton, later, at 3:25 p.m., saw the car again at which time he seized a pair of leather pants from the car, together with a note in one of the pockets, and he also seized a price tag which he found on the floor in the rear of the car.

During the course of his conversation with the occupants of the car, Lawton saw the briar pipe and asked who was the pipe smoker and Moncini said that he was. Moncini also admitted

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ownership of the leather pants, in the pocket of which was found a note reading:

Pick me up in the cool car at three. Bring two sleeping bags.

On October 14, 1971, Constable Felkar of the R.C.M.P., as a result of a skin-diving expedition in Daisy Lake (just off the highway between Alta Lake and West Vancouver), found a black bag which contained a false beard, sunglasses, three hand guns and a quantity of money, as well as a pair of tan gloves. One of the guns was identified by Mrs. Janowsky as being the gun to which the price tag found in the car occupied by the respondents, which she also identified, had been affixed.

Neither of the respondents gave evidence at the trial and both were convicted on both counts contained in the indictment.

The trial judge properly considered that the presence, in the car, driven by Lovis, in which Moncini was a passenger, of the briar pipe and the rubber tie, both of which had been removed from Brown’s car, of the price tag, and the note in the pocket of the leather pants which Moncini said were his, was of considerable significance. He undertook to instruct the jury as to law applicable in determining whether those articles could be said to be in the possession of both Lovis and Moncini. He directed the attention of the jury to the provisions of s. 3, subs. 4, of the Criminal Code, which provides as follows:

For the purposes of this Act,

(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

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in the custody and possession of each and all of them.

The Court of Appeal, on considering the respondents’ appeals from conviction, directed a new trial. Two of the members of the Court agreed with the submission of counsel for the accused that s. 3(4) is applicable only where it is necessary to interpret the word “possession” in a provision of the Criminal Code and they held that there had been an erroneous application of that provision prejudicial to the accused.

The appellant obtained leave to appeal to this Court on the following question of law:

Did the Court of Appeal for the Province of British Columbia err in holding that the learned trial judge misdirected the jury on both counts of the indictment with respect to the application of Section 3, Sub-section 4, of The Criminal Code?

With respect, I do not agree with the conclusion reached by the majority of the Court of Appeal as to the scope of the application of s. 3(4). It is said, in their reasons, that “For the purposes of this Act” is not synonymous with “In all proceedings under this Act”. My opinion is that the subsection is applicable to all proceedings under the Act.

Section 3(4) is not a part of the definition section of the Criminal Code. Definitions are set out in s. 2 which appears under the heading “INTERPRETATION”. Section 2 commences with the words “In this Act” and lists a series of words, followed, in each case, by the verb “includes” or the verb “means”, in turn followed by a definition of the specific word. Section 3(4) comes under the heading “GENERAL”. It does not purport to define the word “possession”. It provides that “For the purposes of this Act” certain circumstances will constitute possession of “anything” in a person.

The effect of s. 2 is that when a defined word is used in the Code it shall have the meaning, or

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shall include the meaning, ascribed to it in that section. But s. 3(4) is not dealing only with the meaning of the word “possession” where it appears in the Code. It provides, generally, that for the “purposes” of the Act possession may be established in certain ways.

The words “For the purposes of this Act” are broad enough to encompass all proceedings brought under the Code, and, in my opinion, they should receive that interpretation.

The effect of the construction placed by the majority of the Court of Appeal upon s. 3(4) would be that, if the respondents had been charged with having possession of the pipe, the tie-down and the price tag knowing them to be stolen, possession could be proved in the manner described in the subsection, but, if possession of those articles is sought to be established as a circumstantial link in the chain of evidence in proof of another crime, it cannot be established in that manner. This result, in my opinion, would not be in accord with the intention of the subsection.

I mention, in passing, that the majority of the Court of Appeal were of the view that s. 3(4) could properly be applied in respect of the second charge against the respondents, i.e., possession of Brown’s automobile, knowing it to be stolen, although the articles, the possession of which was being discussed by the trial judge, were those previously mentioned.

In the result, I am of the opinion that the majority of the Court of Appeal erred in their interpretation of s. 3(4) of the Criminal Code.

This disposes of the legal issue in respect of which the appellant was given leave to appeal. Counsel for the respondents contends that, apart from this matter, the respondents were entitled to succeed on their appeal to the Court of Appeal upon other grounds and he refers to the statement made in the majority reasons that:

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Even if, contrary to my opinion, s. 3(4) could in an appropriate case be applicable to a count in which possession was not an essential element, I think, with respect, that this was not an appropriate case and that the charge was open to objection.

This statement is amplified in the next following paragraph, as follows:

Whether or not the appellants had custody or possession of the articles had no legal significance. The appellants were not charged with illegal possession of the articles. The origin of the articles, the history of their journeyings, where they were and who was present when they were seen by the police at a roadblock, these were all circumstances from which the jury could draw inferences in coming to a conclusion whether or not the charge of robbery by the appellants had been proved. In this process, a conclusion that the articles were in the custody and possession of the appellants or one of them would not be a landmark, but the emphasis placed on the imposed conclusion to be drawn from the proof of certain facts must have led the jury to think that such a conclusion would establish nothing less than an essential ingredient of Count 1 and carry them a long way towards a verdict of guilty; it must have led them to think that there would be something decisive of the case in the statutory conclusion of custody or possession, which there was not. If the jury did not get that, or some similar, impression, this part of the charge must have caused confusion in their minds by making them wonder—as I have done—what the significance of all the talk of s.s. (4) of s. 3 was.

With respect, after considering the charge, I do not come to this conclusion. In the charge to the jury the position of the appellant was outlined as follows:

In his address to you yesterday Mr. Murray made statements as follows, or to the following effect: When he opened before you and in addressing you yesterday he said that in the view of the prosecution there was a successful plot to rob the bank; secondly, that the participants in the plot were McConnell, Lovis and Moncini; thirdly, that these three came into

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possession of a stolen car, namely the car which Mr. Brown told us had been taken from him; fourthly, that Mr. Brown’s car was the getaway car and that there was a switch of cars; fifthly, that Mr. Lovis was the gunman and he was the one who robbed Brenda McLeod and that Mr. Moncini was in the other car and indicated that by reason of the robbery and by reason of the road block and by reason of Highway 99 being the only highway from Squamish to Alta Lake, that certain articles and money had been disposed of and left somewhere and were not in the car when Constable Lawton stopped the car in the road block at 1:40 o’clock on the afternoon of the robbery.

With respect to the pipe and the tie the appellant sought to establish possession in both respondents as an important evidentiary link connecting them with the stolen Brown car (the subject-matter of Count 2) which was alleged to be the get-away car after the robbery (Count 1). With respect to these items, the jury was told:

So these two items, you see, you may infer or you may be driven to the conclusion were from Mr. Brown’s car and are in this other car, sometimes called the McConnell car, because McConnell produced the registration and insurance indicating that he was the registered owner of that car.

In that car there were three people and the question is, who was in possession. That is not the proper way to state it. Has the Crown proved that someone was in possession and, if so, who? You must consider that question with regards to the definition of possession.

Under this definition the Crown is saying and has said where one of three persons with the knowledge and consent of the other two has anything in his possession, in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Now, in the ordinary course to establish that it must be found that one of the three persons was in possession and, secondly, that that one person was in possession with the knowledge and consent of the other two or one of the other two.

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The price tag was an important evidentiary link in respect of the gun, which was thrown into the lake, and, thus, to the robbery, the subject of Count 1. The note, found in the pocket of the pants, was alleged by the appellant to relate to the plans for escape after the robbery.

While it is true that the respondents were not charged with illegal possession of those items, the significance of that possession in relation to the offences with which they were charged can be illustrated by a reference to the decision of this Court in Reference re R. v. Coffin[2]. In that matter, which involved a charge of murder, evidence was given relating to the possession by the accused of articles which had been in the possession of members of a hunting party, which included the victim, prior to his death. With respect to this evidence it was contended, on behalf of the accused, that the trial judge erred in instructing the jury on the doctrine of recent possession and that the jury had been misdirected as to the burden resting on the accused to explain his possession. It was also contended that the jury should have been directed that they were not entitled to convict the accused of murder because he was guilty of the theft of the various articles.

These objections were rejected, and the significance of the possession of the stolen articles was dealt with by Taschereau J. (as he then was), with whom Kerwin C.J. concurred, at p. 204:

I also regard the second point as without foundation. In my view, the judge was not required to tell the jury what he is said to have neglected to tell them. The fact that Coffin had in his possession recently stolen effects not only gave rise to the presumption, in the absence of any explanation, that he had stolen them, but the jury was entitled to conclude that it was one link in a chain of circumstances indicating that he had committed the murder.

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Kellock J., with whom Rand J. and Fauteux J. (as he then was) concurred, dealt with this matter as follows, at p. 225:

In my opinion, therefore, there was abundant evidence from which the jury could conclude that the possessor of the money and the other items was the robber and the murderer as well. I think they have done so.

In Regina v. Exall, (1866) 4 F. & F. 922, Pollock C.B., said at 924:

The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery.

And so it is of any crime to which the robbery was incident, or with which it was connected, as burglary, arson, or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found committed that other crime.

The law is, that if recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called upon to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable.

In a note to the above case at p. 850 of vol. 176 of the English Reports, the editor refers to the case of R. v. Muller at p. 385 of the same volume, where the murder in question had occurred in a railway carriage on a Saturday evening and on the following Monday the prisoner was found in possession of the watch of the murdered man which he said he had bought off a pedlar at the London docks. The question arose as to whether, supposing the jury were not satisfied of the accused’s guilt upon the evidence apart from the recent possession of the hat and watch, such possession would be sufficient proof of the prisoner’s guilt of the murder. The note reads:

That it would have been sufficient, if no explanation at all had been offered, would be conceded. For the absence of explanation would have amounted to an admission.

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In the light of these statements as to what may be the effect of recent possession of stolen articles, not only in relation to a theft of the articles themselves, but also in relation to the evidence as to the commission of another crime, I do not think that it is a valid ground for upsetting the jury verdict because the trial judge may have stressed the requirements of s. 3(4) for establishing possession of the four articles to which he referred. Here, as in the Coffin reference, a rule relating to possession of certain articles is used to link the accused to pieces of evidence in respect of a crime in which their possession is not, otherwise, a material element. The operation of s. 3(4) was an important element in the appellant’s attempt to connect the accused to the evidence as to the stolen car and to the robbery and it deserved full attention in the charge to the jury. It is not contended that the explanation of the meaning and effect of s. 3(4) was in error, and the trial judge fairly presented to the jury the submissions of counsel for the respondents as to why the application of the subsection would not involve a finding of possession in the respondents.

In the result, I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the verdict at trial.

Appeal allowed.

Solicitor for the appellant: George L. Murray, Vancouver.

Solicitor for the respondent, Lucien Raymond Moncini: Sidney B. Simons, Vancouver.