DATE: 20010622
DOCKET: C33025

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE, AND MACPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

JOSEPH KOCSIS

Appellant

John McInnes for the respondent
Brian Greenspan and Peter Copeland for the appellant

Heard: June 4, 2001

On appeal from the convictions by Justice Barry Matheson, sitting with a jury, dated July 2, 1999 and from the sentence dated October 22, 1999.

MACPHERSON J.A.:

[1] The appellant, Joseph Kocsis, was convicted of two offences, possession of explosive substances with intent to enable another person to endanger life or to cause serious damage to property and conspiracy to commit the same offence, following a jury trial presided over by Justice B. Matheson. He was sentenced to five years imprisonment on each count, to be served concurrently. The appellant appeals against his convictions. He also seeks leave to appeal his sentence and, should leave be granted, appeals his sentence. The principal ground on the conviction appeal is that the trial judge did not properly charge the jury on the crucial issue of possession.

[2] The Crown alleged that, in the context of a year-long police undercover operation, the appellant was identified as the main supplier of a large number of pipe bombs. The chief Crown witness was an alleged confederate of the appellant, Michael DeSantis, who testified that the appellant was directly involved in the supply and delivery of the pipe bombs.

[3] The appellant denied any involvement with the pipe bombs. He testified that he regularly purchased cocaine from DeSantis. On the critical day, DeSantis drove the appellant to an abandoned farm house owned by the appellant’s family in order to complete a cocaine transaction. DeSantis had been in the house as he was doing some drywalling there. When they arrived at the farm house, DeSantis lifted a blanket in the back of the truck and said there were bombs in there. The appellant testified that he told DeSantis to get off the property. After arguing and yelling, DeSantis drove the appellant back to Prudhommes Landing Mall with the pipe bombs still inside the truck. At the mall, the appellant got out of the truck and departed. The sale of the pipe bombs to undercover police officers proceeded, but not in the presence of the appellant.

[4] The principal issue at trial was whether the appellant possessed the pipe bombs. The Crown’s main contention was that the appellant was deeply involved, with others, in the criminal enterprise and that he was in actual possession of the pipe bombs. However, Crown counsel did not limit his case to actual possession. In his closing address, Crown counsel said:

The first point that I wish to raise concerns the definition of possession. The Criminal Code defines possession in a number of different ways. A person can have possession of something when they’re holding it in their hands or have it in their pocket. That’s actual possession. Or a person may have it in possession of another person. For example, if I give something to a friend to keep for me, I’m still in possession of it. A person can have possession of something when they hold it in a place. For example, if I put something in a barn and it’s held there for me or left at a friend’s place and finally if one of two or more people has possession of something and they each know and consent to that possession, then the possession will be deemed on all of them. My point is, is that Joseph Kocsis had been charged with possession of these bombs so even if you are unsure on the evidence whether he actually physically handled the bombs on the 31st of January, you can still find that he is in possession of the bombs if, for example, you find that DeSantis was keeping them for him, waiting until he got paid the money or you can find him in possession of the bombs if you find that he had them at a certain place. For example, 4131 Greenlane or if Desantis or anybody else had them and Joe Kocsis knew about it and consented to that particular possession, then you can find him in possession. I am suggesting to you, members of the jury, that the evidence will show that he was in possession of those bombs in all those three ways. [Emphasis added.]

[5] In addition, in the pre-charge discussion, Crown counsel submitted that the trial judge should instruct the jury on all of the components of the definition of possession in s. 4(3) of the Criminal Code:

There would have to be a charge with respect to a possession, since the possession in this particular case is not a possession of actual physical possession, save and except for that perhaps one reference by Mr. DeSantis. But I would respectfully submit that all four parts of the possession section of the Code, s. 4.3 would apply here.

[6] Near the beginning of his charge, the trial judge read s. 4(3) of the Code to the jury:

S. (4)(3) For the purposes of the 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 in the custody and possession of each and all of them.

[7] During a recess, defence counsel mentioned that the trial judged had failed to instruct the jury on the definition of possession, specifically the three ingredients of knowledge, consent and control. The trial judge acknowledged this point and later in his charge returned to the definition of possession. He read s. 4(3) of the Code to the jury again and added the following comment:

In order to have possession you must have knowledge of the object that you are alleged to have possession of; you must have the intent to have that possession and you must have consented to have that possession.

[8] Following a further recess and prior to the return of the jury, defence counsel repeated his concerns regarding the instruction on possession:

MR. WALKER: . . . With regard to your definition of possession you did not mention control at all.

THE COURT: Okay. I will do that again.

[9] Upon resuming, the trial judge gave a further instruction regarding possession:

With respect to the question of possession – remember I gave you the definition, which I won’t repeat, but in order for an individual to have possession they must have knowledge, control, either directly or indirectly, and have the intent.

[10] After several hours of deliberation, the jury posed a question about the legal definition of possession. The trial judge and defence counsel engaged in this exchange relating to how the jury’s question should be answered:

THE COURT: Could I see the question, please. As I indicated, the jury would like the legal definition of the word, “possession” so I’ll read from the Code and also the personal possession aspect of control, etcetera.

MR. WALKER: Well, Your Honour, with respect, uhh, your earlier charge on possession, the definition of possession itself verses the various ways one can be in possession. I would submit you’ve got to indicate to the jury there was knowledge of what the object is, consent to the object being there. . .

THE COURT: Mmhmm.

MR. WALKER: . . .and there must be some element or some degree of control exercised over the object. And if you don’t have all three co-existing then you don’t have possession.

THE COURT: I think as far as personal is concerned.

MR. WALKER: That’s right, but you’re still. . .

THE COURT: I hear that, sir. Here’s what I am intending to do. Personal possession: The Crown must prove three things in order to prove personal possession. First, that Joseph Kocsis had actual physical possession of the property. Second, that Mr. Kocsis knew that he had actual physical possession of the property. And third, that he exerted control over while he had possession, actual possession, physical possession. For the personal aspect of it.

Call the jury, please.

[11] When the jury returned, the trial judge again read s. 4(3) of the Code and continued:

Now with respect to personal possession the Crown must prove three things in order to prove personal possession. First, that Joseph Kocsis had actual physical possession of in this case, 74 pipe bombs on the 31st or one on the 29th.

Second, that Mr. Kocsis knew that he had actual physical possession of the pipe bombs.

And third, that Mr. Kocsis exerted control over the pipe bombs while he had actual physical possession of them.

[12] When the jury retired again, defence counsel mentioned his concern about the trial judge’s response to the jury’s question. The following exchange took place:

MR. WALKER: Excuse me, Your Honour.

THE COURT: Certainly.

MR. WALKER: I am concerned about this. Beaver v. The Queen – when you’re talking about actual possession. . .

THE COURT: Yes sir.

MR. WALKER: . . .you’re talking about possession by that person.

THE COURT: Yes Sir.

MR. WALKER: And then there are other means of possession as well.

THE COURT: Yes.

MR. WALKER: But, you’ve still got to have the three ingredients. I mean, I can know that there are pipe bombs in the back of that truck, but if I for instance have said, “I want nothing to do with that. . .

THE COURT: And you have no control over it.

MR. WALKER: That’s right.

THE COURT: That’s right. And the – if he had the pipe bombs in the back of the truck and the jury believes that he had no knowledge of them until that time – until that time, and it was a surprise, the jury will acquit.

MR. WALKER: Well shouldn’t that have been explained to the jury?

THE COURT: No sir.

MR. WALKER: Okay.

THE COURT: I think it has been explained. Thank you.

[13] Less than 10 minutes later, the jury returned with guilty verdicts on both counts in the indictment.

[14] The appellant contends that constructive possession was a live issue in the trial because of the appellant’s testimony explaining his presence in the truck with the pipe bombs, the closing address of Crown counsel which directly addressed the issue and the trial judge’s charge which included all of s. 4(3) of the Code. The appellant submits that, in the context of this issue, the trial judge’s response to the jury question was inadequate. Although the trial judge correctly told the jury that, in relation to actual possession, they must find that the appellant “exerted control over the pipe bombs while he had actual physical possession of them”, he did not advise the jury that a measure of control was also required in relation to constructive possession under s. 4(3)(b) of the Code.

[15] At the appeal hearing, Crown counsel candidly conceded that there were “significant difficulties at first blush” with what the trial judge said in his charge on the issue of constructive possession. He acknowledged that the disparity between Crown counsel’s jury address and the trial judge’s charge and re-charge in response to the jury’s question “does create a problem”. However, in spite of these concessions, the Crown contends that the appeal should still be dismissed, essentially for two reasons.

[16] First, the Crown points out that the appellant was convicted of conspiracy as well as possession. The conviction for the former, says the Crown, is not tainted by the trial judge’s inadequate answer to the jury’s question.

[17] With respect, I disagree. There was an almost total overlap in the two offences, from the actual wording of the two counts in the indictment through to the trial judge’s charge. Indeed, even the Crown in his closing address to the jury explicitly linked conspiracy and possession:

Such possession of bombs is an offence all by itself and that’s what we have charged in count two and where such possession of bombs is the subject of a conspiracy, that is a separate offence. [Emphasis added.]

This statement was followed immediately by Crown counsel’s discussion (set out previously) of the various definitions of possession including, explicitly, constructive possession and his application of the definitions to the evidence. Accordingly, when Crown counsel used the words “such possession of bombs is the subject of a conspiracy”, he intended that constructive possession be a potential foundation for the conspiracy offence as well as for the possession offence.

[18] Moreover, the trial judge’s charge raised the potential basis for conviction on the conspiracy charge flowing from the events that suggested the possibility of constructive possession. At a general level, the trial judge told the jury that “the question of possession . . . is in the second count as well as in the first”, and “in that charge [the possession count] and in the first conspiracy [count] the crown must establish that Joe Kocsis had the criminal intent to possess explosives knowing that they were a danger and could cause danger or serious damage to property”.

[19] More specifically, and bearing directly on the truck ride from the farm house to the mall involving the appellant, DeSantis and the pipe bombs, the trial judge instructed the jury:

The evidence directly admissible against the accused on the issue of his membership in the conspiracy includes . . . his going to Prudhommes and meeting Mr. DeSantis and driving back to 4131 Greenlane and returning with Mr. DeSantis.

This was precisely the evidence that raised the constructive possession issue in the trial.

[20] For these reasons, in my view it is not safe to conclude that the trial judge’s error, admitted by the Crown, relates only to the possession offence. On the evidence, the position of Crown counsel at trial and the trial judge’s instructions, it would be possible for the jury to consider both conspiracy and possession in the context of the disputed evidence surrounding the appellant’s truck ride with the pipe bombs from the farm house to the mall. In light of this possible scenario, a correct response to the jury’s question – one which covered the elements of constructive possession – was essential.

[21] Second, the Crown contends that this is an appropriate case for the application of the proviso in s. 686(1)(b)(iii) of the Code. There is no doubt that there was evidence supporting the conclusion that the appellant was in actual possession of the pipe bombs. That was also the Crown’s principal position in its closing address. Further, the trial judge’s charge on this issue was appropriate.

[22] However, with constructive possession being a live issue based on the evidence, the Crown’s closing address and the trial judge's decision to read all of s. 4(3) of the Code to the jury, the trial judge erred by answering the jury’s question only in terms of actual possession. By doing so, he did not bring home to the jury that the three components of possession needed to be present if the jury was considering constructive possession as a basis for finding the appellant guilty.

[23] In short, in their final exchange, it is clear that the trial judge understood the elements of constructive possession; he expressly mentioned both control and knowledge. Moreover, he clearly understood how an acquittal could arise in this case; he said that “the jury will acquit” if there was no knowledge of, and no control over, the pipe bombs in back of the truck.

[24] Defence counsel said: “Well shouldn’t that have been explained to the jury?” The trial judge replied: “I think it has been explained”. With respect, defence counsel was correct – it had not been explained to the jury. Since the verdict came almost immediately after an inadequate answer to a jury question relating to the very definition of the offences with which the appellant was charged, I cannot say with confidence that, in the words of the proviso, “no substantial wrong or miscarriage of justice has occurred”.

[25] For these reasons, I would allow the appeal, set aside the convictions and order a new trial.

RELEASED: June 22, 2001

“J.C. MacPherson J.A.”

“I agree K. Feldman J.A.”

“I agree R. J. Sharpe J.A.”