DATE: 20030617

DOCKET: C36022

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. EL-SAYED KANDIL (Appellant)

BEFORE: DOHERTY, ARMSTONG JJ.A. and BLAIR R.S.J. ad hoc

COUNSEL: Sarah Egan and Joe Wilkinson for the appellant Amy Alyea for the respondent

HEARD: June 12, 2003

On appeal from the conviction imposed by Justice T.M. Dunn, sitting with a jury, on February 19, 1999 and the sentence imposed on March 4, 1999.

E N D O R S E M E N T

[1] The appellant was convicted by a jury of conspiracy to possess stolen motor vehicles and four counts of possession of specific stolen motor vehicles. The Crown contended that the appellant was part of a group that provided stolen motor vehicles to buyers on request. On the Crown’s theory, the appellant had arranged to provide certain stolen vehicles to a police agent. He was arrested in the course of making a delivery to the police agent, but, again on the Crown’s theory, continued to operate the scheme from his jail cell and arranged for the sale of two more stolen motor vehicles. The Crown’s case rested primarily on the evidence of a paid police agent, McKane, the appellant’s former girlfriend and an alleged co-conspirator, Hala, and an undercover police officer, Valvasori.

[2] The appellant testified and denied that he was a party to any conspiracy. He also denied that he was in possession of any of the vehicles that were the subject matter of the substantive charges. The appellant acknowledged that he was a passenger in one of those vehicles (count 2) when he was arrested. He testified that the driver of the vehicle was taking him to a car rental agency located near the airport when the arrest took place. The appellant also admitted that he arranged to have one of the vehicles referred to in the indictment (count 6) stored at Mr. McKane’s request.

[3] It was agreed that the vehicles that were the subject of the substantive charges had been stolen shortly before they were recovered by the police.

[4] It was the position of the appellant that the Crown’s case on all of the charges rested almost entirely on the evidence of McKane and Hala. The appellant argued that both were involved in the stolen car operation and were strongly motivated to falsely implicate him to save themselves. The agent, McKane, was paid some $3,000 for his co-operation.

[5] Counsel for the appellant advanced various grounds of appeal. We need address only his submission that the charge to the jury on the inference available from recent possession of stolen property constituted reversible error. It was the appellant’s position that he was not in possession of any of the vehicles and that he did not know that the vehicles were stolen. The inference of guilty knowledge available from a finding of recent possession can arise only if in fact the Crown proves that the accused was in possession of the stolen property. Unfortunately, the trial judge conflated the issues of possession and of guilty knowledge and invited the jury to use the recent possession inference at large in their consideration of the case. His failure to distinguish between proof of possession and the inference of guilty knowledge available from that possession is evident in the following extract from his instructions.

With respect to the possession charges, you must consider all the evidence, the arguments of counsel and hopefully what light my charge will throw upon these things and determine if the Crown has proved beyond a reasonable doubt that the stolen property was in possession of an accused within the meaning of the Criminal Code. You may, however, although not must, in the absence of an explanation which might reasonably be true, find the accused guilty of the offence for which he is charged.

[6] This instruction suggested to the jury that it could consider the reasonableness of the appellant’s explanation in determining whether the appellant was in fact in possession of the vehicle. Possession did not turn on the reasonableness of his explanation for his connection to the vehicle.

[7] Immediately following this instruction, the trial judge mischaracterized the defence by telling the jury, “The accused has given an explanation of how the stolen property came into his possession.” As indicated above, it was not the position of the appellant that he was in possession of any of this property, and he did not offer any explanation for his possession. This mischaracterization of the defence position focused the jury’s attention on the reasonableness of the appellant’s evidence concerning his connection to two of the vehicles referred to in the indictment. That evidence was, to say the least, suspect. The jury’s attention should have been focused first on whether the Crown had proved beyond a reasonable doubt that the appellant was in possession of any, some or all of the vehicles. It was only if and when the Crown proved possession beyond a reasonable doubt that the reasonableness of the appellant’s explanation for the possession became relevant.

[8] We also agree with counsel’s submission that the trial judge did not relate the evidence to the constituent elements of the legal definition of possession. It was important that he do so in this case, given that the Crown’s evidence potentially putting the appellant in possession of the vehicles differed from vehicle to vehicle referred to in the indictment.

[9] The charge on the inference available from recent possession of stolen property constituted reversible error and necessitates a quashing of the substantive possession counts. As the jury may well have used findings of guilt on those counts as evidence on the conspiracy count, we are satisfied that the conviction on conspiracy must also be set aside: R. v. Kocsis (2001), 157 C.C.C. (3d) 564 (Ont. C.A.).

[10] The appeal is allowed, the convictions on counts 1, 2, 3, 6 and 7 are quashed and a new trial is ordered. The convictions on counts 4 and 5 (breach of recognizance) were not in issue on this appeal and those convictions stand.

“Doherty J.A.”

“Armstrong J.A.”

“R.A. Blair R.S.J. (ad hoc)”