Held: The appeal should be dismissed.
One of the components of the offence stated in s. 312 of the Criminal Code is knowledge by the person having possession of the thing that it was obtained by the commission of an indictable offence. Thus, even assuming that respondent had possession of the car within the meaning of s. 312, the trial judge in order to find her guilty had to be convinced beyond all reasonable doubt that she knew that the car had been stolen. As the possession was recent, the presumption that she knew this was created. In her testimony, however, respondent contradicted her statements and denied that she knew that the car had been stolen. Confronted with these contradictions, the trial judge should still have acquitted the accused if he was of the view that her explanation under oath could be true, even though he was not convinced that it was. The trial judge said it was impossible for him to determine whether respondent was telling the truth in her statements or in her testimony. Accordingly he could not conclude, as he did, that her explanation under oath could not be true, hence she must be acquitted.
Cases Cited
Tremblay v. La Reine, [1969] S.C.R. 431, applied.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 312 [rep. & subs. 1974‑75‑76 (Can.), c. 93, s. 29].
APPEAL from a judgment of the Quebec Court of Appeal1, allowing the accused's appeal from her conviction of unlawful possession of a stolen car contrary to ss. 312 and 313 of the Criminal Code . Appeal dismissed.
1 Mtl. C.A. 500‑10‑000307‑817, September 2, 1983.
Léopold Goulet and Yves Morier, for the appellant.
François Bérichon, for the respondent.
English version of the judgment of the Court delivered by
1. Lamer J.‑‑Respondent was found guilty by a judge of the Court of Sessions of the Peace for the district of Longueuil of unlawful possession of a stolen car contrary to ss. 312 and 313 of the Criminal Code . She was acquitted in the Court of Appeal. The Crown now appeals to this Court by leave granted pursuant to s. 621(1)(b) of the Code.
2. Respondent, who was eighteen years old, was arrested by the police while at the wheel of a recently stolen car and accompanied by an adolescent. In two written statements to the police which were admitted in evidence, she stated that she accepted the adolescent's invitation to go for a drive with him in a car which he revealed had been stolen. The adolescent was teaching her to drive; along the way, she took the wheel and was driving when they were stopped by the police. In her testimony at the trial, she denied knowing that the car had been stolen. The trial judge rendered judgment orally as follows:
[TRANSLATION] Regarding the other two charges of possession, I am really very sorry: first, there is the question of recent possession; second, the accused gave her testimony in such a way and so contradicted the statements she made to the police ‑ but not only her testimony is contradictory. One reaches a point where one no longer knows whether she is telling the truth in her testimony or in the statements she made, to such a degree that her testimony can no longer be regarded as reasonably true.
For these reasons, I find her guilty in both cases: in case 2531 for 1980, regarding the car; and 2765 for 1980 regarding the coats, jeans and so on.
3. She was acquitted by the Court of Appeal. The decisive ground was stated in the conclusion of Montgomery J.A.'s judgment:
I find nothing in the evidence inconsistent with the theory that Appellant was merely a foolish girl, only 18 at the time, whom boredom led to lack [of] discrimination in her choice of companions. I cannot accept that she became a criminal simply because she chose to exhibit her somewhat limited driving skills on this stolen vehicle. I do not regard her as having had any real control over the stolen property. I would therefore hold that she was not in possession and would accordingly maintain the appeals, set aside the convictions and acquit her.
4.
This conclusion was based on application of the criterion stated by Montgomery J.A. as follows:
It may be that the fact that the accused was at the wheel created a presumption of possession, but any such presumption would, in my opinion, be rebuttable. The evidence most favourable to the Crown is in Appellant's declarations, and from these it appears that she had gone with her companion for social purposes only and that she had requested his permission to drive the automobile solely for her own pleasure and not with any thought of concealing the stolen property or assisting in its disposition.
5. In other words, in the opinion of Montgomery J.A. the fact that someone uses a recently stolen car to learn to drive, and knew it was stolen, is not sufficient for that person to have "real control" and, accordingly, unlawful possession of the car.
6. In view of Montgomery J.A.'s observations, this appeal raises interesting questions regarding the concepts of "possession" and "control". Is the concept of possession mentioned in s. 312 of the Code the same as that required to initiate the presumption that someone who is in possession of a recently stolen thing is presumed to know that it was stolen (or even in certain circumstances to be the thief)? Must there be more control over the car for the presumption that one knew it to be stolen to apply? Specifically, in terms of the facts of the case at bar and of Montgomery J.A.'s observations, the questions are: does taking a drive as a passenger in a car which one knows to be stolen constitute an act of possession within the meaning of s. 312? What if one takes the wheel for the pleasure of driving?
7. In short, is the purpose of possession relevant to its illegality within the context of s. 312 of the Criminal Code ? If yes, is possession only illegal when its purpose is to deprive the victim of the theft of his property by hiding it or by participating in its disposal?
8. These are the aspects of the case at bar which justified intervention by this Court. Unfortunately, these points were not adequately dealt with by the parties, so that it is preferable for the Court to await, if possible, a more favourable opportunity for deciding them.
9. One of the components of the offence stated in s. 312 of the Criminal Code is knowledge by the person having possession of the thing that it was obtained by the commission of an indictable offence.
10. Even assuming (without deciding the point, for the reasons just stated) that Diane L'Heureux had possession of the car within the meaning of s. 312 of the Criminal Code , the Crown's appeal must still fail since, in my humble opinion, the trial judge erred in law in not acquitting the accused. In order to find her guilty, the judge had to be convinced beyond all reasonable doubt that she knew the car in her possession had been stolen. As the possession was recent, the presumption that she knew this was created. In addition, the Crown adduced in evidence the accused's statement that she knew the car to be stolen. While under oath at the trial, the accused contradicted her statement to the police. The question which the Court had to ask itself is well‑known and was stated by this Court as follows in Tremblay v. La Reine, [1969] S.C.R. 431, by Fauteux J. (as he then was), at pp. 436‑37:
[TRANSLATION] The judge must invite the jury to consider whether, in the light of all the circumstances of the case, the explanation given by the accused could be true, and the directions which he must then give them must make clear to them (1) the obligation they have to acquit the accused, if they are of the view that the explanation given by him could be true, even though they are not convinced that it is, and (2) the right but not the obligation, which they have, when relying upon the presumption arising out of recent possession, to convict the accused if they do not believe the explanation given by him, or find it unreasonable to believe.
(Emphasis added.)
11. The trial judge appeared to conclude that it would be unreasonable to believe the explanation given by Miss L'Heureux. This conclusion concerns me, however, since it is based on the fact that, because of contradictions between her statements to the police and her testimony in Court, he "no longer [knew] whether she [was] telling the truth in her testimony or in the statements she made". I agree, but with respect one cannot then simply conclude, as the trial judge did, that her explanation under oath could not be true.
12. For these reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Léopold Goulet, Montréal.
Solicitor for the respondent: François Bérichon, Montréal.
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