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Supreme Court of Canada

Criminal law—Possession of goods recently stolen—No explanation advanced—Charge to jury—Evidentiary effect of proof of recent possession—Proper instruction to jury does not constitute comment on failure of accused to testify—Canada Evidence Act, R.S.C. 1970, c. E‑10,s. 4(5).

The respondent was charged with breaking, entering and theft. Goods which had been recently stolen were found in his possession. At the trial counsel for the Crown urged the trial judge to instruct the jury as to the inference to be drawn from the accused being found in possession of recently stolen goods, but, after argument, the judge made an express ruling that he “would decline to charge the jury as requested by the Crown with respect to the doctrine of recent possession.” He was of the view that it was incumbent upon the Crown to adduce evidence as to whether or not the accused had offered any explanation for his possession of the stolen goods. An appeal from the accused’s acquittal was dismissed by a majority of the Court of Appeal on the ground that an instruction to the jury in accordance with the rule as to recent possession would constitute a comment on the failure of the accused to testify contrary to the provisions of s. 4(5) of the Canada Evidence Act. The Crown appealed further to this Court.

Held: The appeal should be allowed and a new trial ordered.

Per Laskin C.J. and Dickson J.: The trial judge erred. There is no duty upon the Crown to lead negative evidence. It would be better to continue the existing practice in this matter. If the accused has offered an explanation to the police, it is open to his counsel, if the accused does not wish to testify, to cross-examine the police witnesses for the purpose of bringing forth evidence of the explanation.

[Page 400]

The argument respecting s. 4(5) of the Canada Evidence Act was not persuasive. Explanations can be given inside or outside the court-room. When the trial judge speaks to the jury about absence of explanation, the reasonable inference for the jury to draw is that the accused did, or did not, as the case may be, offer an explanation at the time one would expect an explanation, that is, when the accused was found in possession of the goods alleged to have been stolen.

R. v. Graham, [1974] S.C.R. 206, referred to.

Per Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.: The instruction which should be given to a jury in a case involving possession by the accused of recently stolen goods is described by Lord Reading in R. v. Schama; R. v. Abramovitch (1941), 11 Cr. App. R. 45, at p. 49. The essence of the matter is that in a case such as the present one where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced, the jury shoud be instructed that the evidence of such possession standing alone raises a prima facie case upon which they are entitled to bring in a verdict of guilty.

The trial judge was wrong in thinking that some evidence relating as to whether or not there was an explanation must be adduced by the Crown if it seeks to rely on the above rule. Under the circumstances of this case, there was no onus upon the Crown to produce evidence of an explanation which might have been made by the respondent out of Court. Any other conclusion would have fixed the Crown with an untenable burden and made the rule as to the evidentiary effect of proof of recent possession almost completely unworkable.

The contention that an instruction to the jury in accordance with this rule would constitute a comment on the failure of the accused to testify contrary to the provisions of s. 4(5) of the Canada Evidence Act was rejected. There was no evidence of any explanation of the stolen goods being found in the respondent’s possession and the provisions of s. 4(5) of the Canada Evidence Act do not alter the instructions which a judge should give to the jury in such a case.

R. v. Schama; R. v. Abramovitch, supra; Richler v. The King, [1939] S.C.R. 101; Ungaro v. The King, [1950] S.C.R. 430; Graham v. The Queen, [1959] S.C.R. 652; Tremblay v. The Queen, [1969] S.C.R. 431; R. v. Graham, [1974] S.C.R. 206; R. v. Hill (1973), 10 C.C.C. (2d) 541, referred to.

[Page 401]

Per Martland, Judson, Spence, Pigeon and Beetz JJ.: R. v. Graham, supra, is conclusive against the view that, in order to rely on the doctrine of recent possession, the Crown must give some evidence as to whether or not there was an explanation given.

Assuming for the purposes of this case that, under the circumstances, a direction to the jury in the exact words of Lord Reading in Schama, 11 Cr. App. R. 45, at p. 49, would, in view of what was decided in Bigaouette v. The King, [1927] S.C.R. 112, be apt to be understood by a jury as a comment on the failure of the accused to testify (contrary to the provisions of s. 4(5) of the Canada Evidence Act), all the trial judge had to do was to give the direction omitting the words: “in the absence of any reasonable explanation”. There was no necessity for stating the rule with the qualification when, on the evidence, it was to be applied without qualification.

When the Crown has put in evidence facts from which guilt may be inferred, the accused may be convicted unless there is an explanation that may reasonably be true. When such an explanation appears, whether in the evidence tendered by the Crown or brought by the defence, it must be considered and will justify an acquittal if it raises a reasonable doubt. This is what distinguishes facts from which guilt may be inferred from facts giving rise to a legal presumption where the defence has the onus of proving any admissible excuse on a balance of probabilities.

R. v. Spurge, [1961] 2 Q.B. 205, referred to.

APPEAL by the Crown from a judgment of the Court of Appeal for British Columbia[1], dismissing the Crown’s appeal from the acquittal of the accused on charges of breaking, entering and theft. Appeal allowed.

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

P.R. Lawrence, for the respondent.

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

DICKSON J.—The short question in this appeal is whether the Crown is obliged to adduce evidence of any explanation given by the accused, or

[Page 402]

absence of explanation, before relying on what has come to be called the “doctrine of recent possession”. It has generally been understood that all the Crown need establish in the first instance is that the goods were recently stolen and that they were found in the possession of the accused. Then the jury must be told that they may, not that they must, in the absence of any reasonable explanation, find the accused guilty. In the instant case, the trial judge refused so to instruct the jury being of the view that it was incumbent upon the Crown to adduce evidence as to whether or not the accused had offered any explanation for his possession of the stolen goods. With respect, the judge erred.

There is no duty upon the Crown to lead negative evidence in these circumstances. The issue now before the Court was decided in R. v. Graham[2]. Consider the implications of what has been suggested. Let us assume that no explanation was given by the accused. To establish this, it would presumably be necessary for the Crown to call all police officers with whom the accused had spoken during investigation of the offence or after arrest. Each officer would be questioned as to whether the accused had made any explanation to him. Apart from the obvious practical difficulties this would present, a more serious concern is that the jury could obtain, indeed could hardly escape, the impression that a duty to explain rested upon the accused. Let us assume, on the other hand, that the accused had given several explanations. Nothing could be more damaging than evidence adduced by the Crown of a series of inconsistent explanations by the person charged. For these reasons, I should think it would be better to continue what I have understood to be the practice in this matter. If the accused has offered an explanation to the police, it is open to his counsel, if the accused does not wish to testify, to cross-examine the police witnesses for the purpose of bringing forth evidence of the explanation.

[Page 403]

The argument respecting s. 4(5) of the Canada Evidence Act, I do not find persuasive. Explanations can be given inside or outside the court-room. When the trial judge speaks to the jury about absence of explanation, the reasonable inference for the jury to draw is that the accused did, or did not, as the case may be, offer an explanation at the time one would expect an explanation, that is, when the accused was found in possession of the goods alleged to have been stolen.

I would allow the appeal, set aside the judgment of the Court of Appeal and the verdict of acquittal, and order a new trial on the second and third counts of the indictment.

Martland and de Grandpré JJ. agreed with the reasons of Ritchie J.

RITCHIE J.—This is an appeal brought pursuant to the provisions of s. 621(1)(a) of the Criminal Code from a judgment of the majority of the Court of Appeal of British Columbia dismissing an appeal by the Attorney General from a verdict of acquittal rendered at trial. The respondent was charged and acquitted on an indictment containing four counts of breaking, entering and theft but, in the Court of Appeal the Attorney General abandoned the appeal on the first and fourth counts and the judgment from which this appeal is taken is thus concerned only with counts two and three.

The dissenting opinions of Mr. Justice Taggart and Mr. Justice Mclntyre are recorded in the formal order of the Court of Appeal in the following terms:

AND BE IT RECORDED that the Honourable Mr. Justice Taggart and the Honourable Mr. Justice Mclntyre dissent from the judgment of the Court on the ground that in law the learned trial judge was in error in refusing to charge the jury on the inferences they might draw from the possession by the Respondent of recently stolen goods.

The issue before this Court is accordingly limited to the question of law so recorded.

One of the counts which was the subject of appeal related to breaking into a hardware store from which two walkie-talkie radios and a 22-calibre rifle were stolen, and the other count

[Page 404]

arose out of the breaking and entering of a garage where tires were stolen.

It is not seriously contested at this stage that the goods which had been recently stolen were found in the possession of the respondent and it seems unnecessary to recount the details of the circumstances under which they were found, having regard to the following admission contained in the respondent’s factum:

It is conceded by the Respondent that the “fact of possession of goods recently stolen” was before the Jury. That “fact” will hereinafter be referred to as “THE FACT”.

At the trial counsel for the Crown urged the learned trial judge to instruct the jury as to the inference to be drawn from the accused being found in possession of recently stolen goods, but after lengthy argument and on consideration of the authorities, the learned trial judge made an express ruling that he “would decline to charge the jury as requested by the Crown with respect to the doctrine of recent possession.” The instruction which should be given to a jury in such a case is described by Lord Reading in R. v. Schama; R. v. Abramovitch[3], at p. 49, in a passage which has been approved by this Court on many occasions and particularly in Richler v. The King[4]; Ungaro v. The King[5], per Estey J. at p. 436; Graham v. The Queen[6]; Tremblay v. The Queen[7], at p. 437; and more recently in R. v. Graham[8]. The passage in question reads as follows:

Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced

[Page 405]

that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner’s guilt. That onus never changes, it always rests on the prosecution. That is the law; the Court is not pronouncing new law, but is merely restating it, and it is hoped that this re-statement may be of assistance to those who preside at the trial of such cases.

This statement has come to be referred to by text writers and by many judges as the statement of a “principle” or a “doctrine”, but I prefer to think of it in terms of a rule of evidence as to which all judges should charge a jury. The rule has been variously stated in different cases, but in my view the essence of the matter is that in a case such as the present one where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced, the jury should be instructed that the evidence of such possession standing alone raises a prima facie case upon which they are entitled to bring in a verdict of guilty.

In refusing to instruct the jury in the present case as to the evidentiary effect of proof that the appellant was found in possession of recently stolen goods, the learned trial judge had occasion to say:

It seems to me to be incumbent upon the Crown if it seeks to rely on the presumption to give some evidence relating as to whether or not there was an explanation…

With the greatest respect for those who may hold a different view, I am of opinion that the learned trial judge erred in thinking that it was incumbent upon the Crown to call such evidence before it could invoke the rule to which I have referred. To make proof as to whether or not there was an explanation, a prerequisite to the application of the rule might entail requiring the Crown to prove a negative before the rule could be invoked and might indeed involve questioning all the persons with whom the accused might have been in contact between the time of the theft and his apprehension.

[Page 406]

It was, however, argued before us on behalf of the respondent that the learned trial judge was right in thinking that some evidence relating as to whether or not there was an explanation must be adduced by the Crown if it seeks to rely on the rule. In this regard it should be noted that the majority of the Court of Appeal rejected this proposition. Branca J.A., while he dismissed the appeal on another ground, concluded that under the circumstances of the present case there was no onus upon the Crown to produce evidence of an explanation which might have been made by the respondent out of Court and this opinion was obviously shared by the two dissenting judges. In my view any other conclusion would have fixed the Crown with an untenable burden and made the rule as to the evidentiary effect of proof of recent possession almost completely unworkable.

In the case of R. v. Graham[9], the following passage occurs in the reasons for judgment of the majority of this Court at p. 213:

There is nothing in any of these authorities to suggest that in relying upon the presumption of guilt flowing from possession of recently stolen goods, the Crown has the burden of proving that no explanation has been given by the accused at any time prior to his trial, or that if such an explanation has been given, it could not reasonably be true.

The majority of the Court of Appeal, however, dismissed this appeal on the ground that an instruction to the jury in accordance with the rule which I have stated would constitute a comment on the failure of the accused to testify contrary to the provisions of s. 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E-10, which provides that:

The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

This contention is based on the use of the words “in the absence of any reasonable explanation” as they were employed by Lord Reading in the Schama case, supra, and it is said that to tell a jury that recent possession of stolen goods which is

[Page 407]

unexplained raises a prima facie case upon which “the jury may, not that they must ….find the prisoner guilty” is tantamount to commenting on the failure of the accused to testify.

This argument assumes that in using the words “in the absence of any reasonable explanation” as he did, Lord Reading must be deemed to have been referring to the failure of the accused to give evidence as to a reasonable excuse for his possession. Mr. Justice Seaton, with whom the majority of the Court of Appeal agreed in this regard, appears to have adopted the view that this Court and the Court of Appeal of Ontario have both accepted this approach when he says:

R. v. Graham, [1974] S.C.R. 206, and R. v. Hill, (1973) 10 C.C.C. (2d) 541, have shown that the explanation properly in question is the explanation given in the witness box by the accused.

In subscribing to this view, Branca J.A. abstracts the following paragraph from a judgment of the majority of this Court in the Graham case, supra.

“In cases such as that of Schama where the accused has given an unsworn explanation before the trial and a later explanation from the witness box in the presence of the jury, I think, with all respect for those who take a different view, that when the Court of Appeal refers to the result ‘if the jury think that the explanation may reasonably be true’ they are to be taken to be referring to the sworn explanation which the jury has heard and seen delivered in the Court rather than any unsworn statement made before the trial.”

In the present case no evidence was adduced as to any explanation given by the respondent before trial and he gave no evidence himself, so that the circumstances which existed in the Schama case are not present here. The fact that in a case where there is an explanation under oath and one which is unsworn, the explanation under oath is the one to which the judge is to be taken as referring when he states the rule, has no relevance in a case where there is no explanation whatever.

[Page 408]

In the case of R. v. Hill, supra, to which Mr. Justice Seaton referred, Gale C.J.O. said, at p. 542:

In our view, there is no obligation on the Crown to show that no explanation was given prior to trial. If the accused is found in the position where the doctrine of recent possession is applicable, then it is encumbent upon him to give any explanation available to him and then let the Court decide whether it reasonably could be true. In this respect I will make reference to just one decision, that of the Court of Appeal of Quebec in Messina v. The King (1926), 42 Que. K.B. 170, where this was said:

“Where the doctrine of recent possession is applicable, all that the Crown need establish in the first instance is that the goods were stolen and that they were in the accused’s possession…”

I do not think that the above passage is to be construed as meaning that where recent possession has been established, the accused is required to testify or that a verdict of guilty must necessarily ensue from his failure to do so.

With the greatest respect for the contrary opinions advanced in the Court of Appeal, I do not think that there is anything in that case or in the Graham case, supra, to suggest that a judge is commenting on the failure of an accused to testify when he instructs a jury that evidence of recent possession, standing alone, raises a prima facie case upon which they may but not must bring in a verdict of guilty of theft.

It has been suggested that the effect of instructing the jury in accordance with the rule is to place the burden of proof on the accused, but as Lord Reading said in the Schama case “That onus never changes, it always rests on the prosecution”, and it is not inconsistent with this fundamental principle of our criminal law to say that when the prosecution has proved facts beyond a reasonable doubt which constitute a prima facie case against the accused, the jury is entitled to bring in a verdict of guilty.

Here as I have said, there was no evidence of any explanation of the stolen goods being found in the respondent’s possession and in my view the

[Page 409]

provisions of s. 4(5) of the Canada Evidence Act do not alter the instructions which a judge should give to a jury in such a case. As Mr. Justice Taggart said in the present case, that provision

is not a reason for the judge to not make reference to the possession by the respondent of recently stolen goods as a circumstance from which the jury might infer guilt because the inference of guilt arises from possession alone.

As I stated at the outset, this appeal is brought pursuant to the provisions of s. 621 (1) (a) which read as follows:

621. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 603 or 604 or dismisses an appeal taken pursuant to paragraph 605 (1) (a) or subsection 605 (3), the Attorney General may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents, or…

The question of law which was the subject of dissent in this case is whether “the learned trial judge was in error in refusing to charge the jury on the inferences they might draw from the possession by the respondent of recently stolen goods.”

As I have indicated, I am of opinion that the learned trial judge was in error in this regard and I would accordingly allow this appeal and direct that there be a new trial on counts two and three of the indictment.

Martland, Judson, Spence and Beetz JJ. agreed with the reasons of Pigeon J.

PIGEON J.—I have had the advantage of reading the reasons written by Ritchie J. with whom I agree. I wish however to make the following observations.

In my opinion, our judgment in R. v. Graham[10] is conclusive against the view that, in order to rely on the doctrine of recent possession, the Crown must give some evidence as to whether or not there was an explanation given.

[Page 410]

The neat point requiring consideration for the first time in this Court, as far as I know, is as to what the instructions to the jury should be when there is no evidence of an explanation and the accused has not testified. How is this to be done so as to avoid saying anything that might constitute a comment on the failure of the accused to testify contrary to the provisions of s. 4(5) of the Canada Evidence Act? In all the previous cases mentioned by Ritchie J., the accused had testified or there was evidence of an explanation. Thus, the problem did not arise as it does here.

For the purposes of the present case, I will assume that, under the circumstances, a direction to the jury in the exact words of Lord Reading in Schama[11], at p. 49, would, in view of what was decided in Bigaouette v. The King[12], be apt to be understood by a jury as a comment on the failure of the accused to testify.

In the Court of Appeal[13], Branca J.A. thought that, on such view of the matter, the trial judge’s refusal to give the direction to the jury was justified. With respect, this is where I think he was in error. All the trial judge had to do was to give the direction omitting the words: “in the absence of any reasonable explanation”. In the circumstances of this case, those words were unnecessary, there was no evidence of an explanation. If the trial judge had given a direction to the jury in those terms, it would have been unobjectionable and adequate in the circumstances.

As Seaton J.A. pointed out at p. 569: “It must be kept in mind that an English Judge may comment upon the failure of an accused to testify.” Therefore, in Schama, Lord Reading did not have to worry about possible implications in a case where no explanation had been given. Anyway, it was a case where explanations had been given. In the present case, however, there was no evidence of

[Page 411]

any explanation. Therefore, the jury did not have to be bothered with how they should be dealing with it if an explanation had been offered. Only such instructions need be given as the case being tried actually requires. There was absolutely no necessity for stating the rule with the qualification “in the absence of any reasonable explanation”, when, on the evidence, it was to be applied without qualification. In this connection, I would direct attention to the manner in which the onus of proof was approached by the English Court of Criminal Appeal in R. v. Spurge[14], at p. 212, a dangerous driving case:

It has been argued by counsel for the Crown that even if a mechanical defect can operate as defence, yet the onus of establishing this defence is upon the accused. It is of course conceded by the Crown that this onus is discharged if the defence is made out on a balance of probabilities. In the opinion of this court, the contention made on behalf of the Crown is unsound, for in cases of dangerous driving the onus never shifts to the defence. This does not mean that if the Crown proves that a motor-car driven by the accused has endangered the public, the accused could successfully submit at the end of the case for the prosecution that he had no case to answer on the ground that the Crown had not negatived the defence of mechanical defect. The court will consider no such special defence unless and until it is put forward by the accused. Once, however, it has been put forward it must be considered with the rest of the evidence in the case. If the accused’s explanation leaves a real doubt in the mind of the jury, then the accused is entitled to be acquitted. If the jury rejects the accused’s explanation, the jury should convict.

In short, when the Crown has put in evidence facts from which guilt may be inferred, whether it be possession of recently stolen goods or driving objectively dangerous, the accused may be convicted unless there is an explanation that may reasonably be true. When such an explanation appears, whether in the evidence tendered by the Crown or brought by the defence, it must be considered and will justify an acquittal if it raises a reasonable doubt. This is what distinguishes facts from which guilt may be inferred from facts giving rise to a

[Page 412]

legal presumption where the defence has the onus of proving any admissible excuse on a balance of probabilities.

I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and the verdict of acquittal, and order a new trial on counts 2 and 3 of the indictment.

Appeal allowed; new trial ordered.

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

Solicitors for the respondent: Lawrence & Co., Vancouver.

 



[1] [1975] 2 W.W.R. 404, 21 C.C.C. (2d) 550.

[2] [1974] S.C.R. 206.

[3] (1914), 11 Cr. App. R. 45.

[4] [1939] S.C.R. 101.

[5] [1950] S.C.R. 430.

[6] [1959] S.C.R. 652.

[7] [1969] S.C.R. 431.

[8] [1974] S.C.R. 206.

[9] [1974] S.C.R. 206.

[10] [1974] S.C.R. 206.

[11] (1914), 11 Cr. App. R. 45.

[12] [1927] S.C.R. 112.

[13] 21 C.C.C. (2d) 550.

[14] [1961] 2 Q.B. 205.

 

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