COURT OF APPEAL FOR ONTARIO

DATE: 20011025 DOCKET: C35613

RE:

HER MAJESTY THE QUEEN (Appellant) v. RALPH SCHROEDER and CHRISTOPHER SCHROEDER (Respondents)

BEFORE:

DOHERTY, LASKIN and SHARPE JJ.A.

COUNSEL:

Karen Shai

for the appellant

Robert B. Howe

for the respondent

HEARD:

October 15, 2001

On appeal from the conviction imposed by Justice N.J. Wilson dated November 16, 2000.

E N D O R S E M E N T

[1] The respondents, Ralph Schroeder and his son Christopher were charged with theft under $5,000. The information alleged that they stole “Canadian currency, the property of Maggie Brown”.

[2] The trial judge acquitted on the theft charge finding that the Crown had failed to prove that the currency was the property of Maggie Brown. The Crown accepts for the purposes of this appeal that it was required to prove that the currency was the property of Maggie Brown.

[3] The procedure followed at trial was somewhat confusing. We are satisfied, however, that the trial judge’s ruling should be read as a ruling made at the end of the evidence and after an election by the defence not to call any evidence.

[4] The respondents were hired by John Bernard to assist in a clean-up of his property after a fire destroyed Mr. Bernard’s hotel. Mr. Bernard and Ms. Brown had lived in a common law relationship for a long time. They lived on the hotel property. Ms. Brown had been very involved in the operation of the hotel until a few years prior to the fire when she became ill.

[5] In the course of the clean-up of the debris, the respondent, Christopher Schroeder found a wad of Canadian and American currency. From its appearance, it seemed probable that the currency was present when the fire occurred. Christopher handed the wad to his father who put it in his pocket. Several days later, Ralph Schroeder used $1,300 from that money to pay down his son Christopher’s tax bill. The respondents did not tell Mr. Bernard or Ms. Brown that they had found the money during the clean-up.

[6] The Crown’s primary theory at trial was that the found funds were funds that Ms. Brown had hidden on various occasions in the hotel at some time before the fire. All of the evidence led by the Crown was directed at this theory.

[7] The trial judge was not satisfied that the Crown had proved beyond a reasonable doubt that the money found by Christopher Schroeder was money hidden by Ms. Brown at some time before the fire. The trial judge’s reasons for that finding are not challenged on appeal.

[8] At trial, by way of an alternative argument, the Crown contended that even if the money was not money “stashed” by Ms. Brown, she had a property interest in that money by virtue of her position as an occupier of the property and a co-operator of the hotel.

[9] The trial judge did not address this theory in her reasons. There was little, if any, attention given to this theory in the evidence. The evidence established that Ms. Brown had lived on the property for many years with Mr. Bernard, although it is unclear whether she lived in the building that burned down in the fire. The evidence also established that Ms. Brown no longer was involved in the operation of the hotel and was not an owner of the land.

[10] We think counsel for the respondents is correct when he submits that the question of whether Ms. Brown was an occupier of the property on which the fire occurred, and the further question of what property interest, if any, her status as an occupier would give her to the money found by Christopher are difficult fact-bound questions which do not admit of a simple definitive answer. As counsel argued, the answer to these questions will depend on the particular circumstances of the case. Those circumstances were not developed in evidence by the Crown.

[11] It would have been better had the trial judge addressed both theories advanced by the Crown. We are satisfied, however, that had she considered the argument that Ms. Brown had a property interest in the money as an occupier of the property on which the money was found, she would have concluded that the evidence simply did not address the issues relevant to that theory of liability.

[12] It is not appropriate for this court to allow a Crown appeal based on the trial judge’s failure to consider a theory of liability which, while available in law, was not developed in the evidence adduced by the Crown at trial. The Crown should not have a second opportunity to lead evidence in support of that theory of liability.

[13] We would dismiss the appeal from the acquittal on the theft charges.

[14] The Crown also appeals the acquittal of Ralph Schroeder on the possession charge. The Crown is correct in her contention that as the possession charge did not allege ownership in any particular person, the Crown was not required to prove ownership in any particular person. We do not think, however, that the ends of justice would be served by giving effect to this argument. The Crown’s theory on the possession charge, like its theory on the theft charge, was that Ms. Brown was the owner of the property. The theft and possession charges were, in fact, if not in law, part and parcel of the same allegation. Since we are satisfied that the acquittal on the theft charge must stand, we do not think that the administration of justice would be served by ordering a new trial on the possession charge so the Crown could advance a new theory.

[15] We would dismiss this appeal.

“Doherty J.A.”

“John Laskin J.A.”

“Robert J. Sharpe J.A.”