Supreme Court of Canada

R. v. Terrence, [1983] 1 S.C.R. 357

Date: 1983-03-24

Her Majesty The Queen (Plaintiff) Appellant;

and

Kelly Terrence (Defendant) Respondent.

File No.: 16296.

1982: March 22; 1983: March 24.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Possession of stolen goods—Motor vehicles—Passenger charged—Meaning of the word “possession” in s. 3(4)(b) of the Code—Whether possession imported control as an essential element—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 3(4), 313.

Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of the Criminal Code. At trial, respondent’s testimony—(1) that he had accepted an invitation from one of his friends to go for a ride in his “brother-in-law’s car” and (2) that he did not know the car to be stolen property—was not contradicted by any direct evidence. The judge disbelieved him, however, and proceeded on the assumption that the respondent’s knowledge of the stolen character of the vehicle was a proven fact and found him guilty. The Court of Appeal quashed the conviction holding that some evidence of control on the accused’s part was necessary to establish possession under s. 3(4)(b). This appeal is to determine whether the word “possession” used in s. 3(4)(b) of the Code imports control as essential element.

Held: The appeal should be dismissed.

A measure of control on the part of the person deemed to be in possession is a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required cannot exist without some measure of control over the subject-matter.

R.v. Proudlock, [1979] 1 S.C.R. 525; R. v. Lou Hay Hung (1946), 85 C.C.C. 308; R. v. Colvin and Gladue, [1943] 1 D.L.R. 20; R. v. Sigouin, [1966] 1 C.C.C. 235; R. v. Fournier (1978), 43 C.C.C. (2d) 468, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario (1980), 55 C.C.C. (2d) 183, 17 C.R. (3d) 390, allowing respondent’s appeal and

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quashing his conviction on a charge of possession of stolen goods. Appeal dismissed.

S. Casey Hill, for the appellant.

Mark L. Kerbel, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court at the instance of the Attorney General of Ontario, pursuant to s. 621(1)(b) of the Criminal Code, from a judgment of the Court of Appeal for Ontario (1980), 55 C.C.C. (2d) 183, 17 C.R. (3d) 390, whereby that Court allowed the appeal and quashed the conviction of the accused entered at trial before Judge P.H. Megginson in the Ontario Provincial Court (Criminal Division) for the County of Frontenac, Ontario, on a charge that he:

…on or about the 30th day of January, 1980 at the Township of Kingston and elsewhere in the County of Frontenac, unlawfully did have in his possession one 1980 Chevrolet automobile, of a value exceeding $200.00, the property of Trudeau Motors, Belleville, Ontario which had been theretofore obtained by a person unknown by an offence committed in Canada punishable on indictment, to wit: theft, the said Kelly Brett Terrence, then knowing the said automobile to have been so obtained and did thereby commit an indictable offence, contrary to section 313(a) of the Criminal Code of Canada.

The important question raised by this appeal relates to the true meaning to be attached to the word “possession” as the same occurs in the context of s. 3(4)(b) of the Criminal Code and more particularly whether “possession” as there employed imports control as an essential element. Section 3(4)(b) reads as follows:

(4) For the purposes of this Act,

(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.

The only evidence in the record of this appeal which is in any way descriptive of the manner in which the respondent first became aware of the

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existence of the automobile in question is the evidence of the respondent himself which is, in my view, accurately summarized in the judgment of Mr. Justice MacKinnon at p. 64 of the case on appeal herein as follows:

The 17-year old appellant testified at his trial. His evidence was that Bill Rorback, Rorback’s brother and one Rick Hayes lived across the street from him in Belleville. He often went across to visit after dinner and he had done so on the evening of January 29th, 1980. When he arrived Rick Hayes was not present and the appellant and the two Rorbacks watched television. At about midnight Hayes drove up to the front of the house in a new Camaro automobile and asked if anybody wanted to go for a ride in his ‘brother-in-law’s new car.’ The appellant said ‘sure’ and went with Hayes.

According to the appellant’s evidence, Hayes and the appellant drove around town for three quarters of an hour or so and then started east along the 401 towards Kingston. It was established that the Camaro had in fact been recently stolen and the licence plates it carried had recently been stolen from another Camaro in Belleville. The appellant knew that Hayes did not own his own motor vehicle but Hayes had, on previous occasions, borrowed his brother-in-law’s car which the appellant described as ‘an old junker.’ He thought that it was probably time for Hayes’ brother-in-law to acquire a new car and as Hayes had the keys to the car, he had no suspicion at the time that the car was stolen.

Hayes turned onto Highway 2 around Napanee and shortly thereafter an O.P.P. cruiser gave chase. Constable Mallock testified that the stolen vehicle, on being pursued, increased its speed to 150 kilometres per hour, although the appellant’s evidence was that the vehicle did not speed up but rather continued at a constant pace. The car was finally stopped by an O.P.P. road-block some time shortly after 2:30 a.m. The Camaro pulled over to the shoulder and was apparently slowing down to a stop when the appellant jumped from the moving vehicle, rolled onto the shoulder and ran into the adjoining field. The Camaro collided with a cruiser and then came to a stop,…

As I have indicated, this was the account given by the respondent and it remains uncontradicted by any direct evidence; it accordingly appears to me that the only basis for doubting the accuracy of this account was the repeated assertion by the trial judge that he “utterly” disbelieved it.

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There is no doubt about the fact that the vehicle had been stolen from a garage in Belleville and indeed there was evidence to the effect that the theft occurred on the very night when the respondent accepted the invitation from Hayes to go for a ride “in his brother-in-law’s car”. It was this latter circumstance which permitted the trial judge to say:

…this car was as hot as a car could be, having been taken by someone during the same night.

There was, as I have said, no direct evidence to contradict the respondent’s version of what occurred, but it is evident from his somewhat acid comments that the judge’s finding of “possession” is in great measure based on his disbelief of the respondent and it is apparent that the judge proceeded on the assumption that the respondent’s knowledge of the stolen character of the vehicle was a proven fact.

Based on the assumption that the respondent knew the car to be stolen property, the trial judge went on to find that:

Even if the accused was not the operator of the vehicle and in that sense had the control of it, if the person who had control of the vehicle had it with his knowledge and consent and he is in the vehicle as well, in my view, that is sufficient to found the necessary conditions to constitute constructive possession under section 3, subsection 4(b) of the Criminal Code as defined.

In allowing the appeal and quashing the conviction entered at trial, the Court of Appeal for Ontario declined to follow the reasoning of the trial judge and it is their disagreement as to “the constituent and essential elements of ‘possession’ ” under s. 3(4)(b) that has given rise to this appeal as can be seen from the grounds upon which application was made to this Court for leave to appeal:

(1) That the Court of Appeal for the Province of Ontario erred in law in holding that a constituent and essential element of possession under section 3(4)(b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code.

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(2) That the Court of Appeal for the Province of Ontario erred in law in holding that a passenger in a stolen automobile which he knows to be stolen is not pursuant to section 3(4)(b) of the Criminal Code in possession of that vehicle where the Crown proves:

(a) possession of an object by another person;

(b) the accused’s knowledge of this other person’s possession of the object; and

(c) the accused’s consent to the other person’s possession of the object.

It will be seen that the second ground of appeal is predicated on it having been proved that the “passenger” knew the automobile to have been stolen and in this connection I think it well to reiterate the fact that there is absolutely no direct evidence to support such an assumption which is denied by the respondent who also states that he first knew of the theft when the O.P.P. chase began on the highway and the stolen car was finally being brought to a halt, although the respondent had jumped to the highway while it was still moving.

The ratio decidendi of the trial judge’s decision is to be found in the following excerpt:

I utterly disbelieved the explanation for recent possession of stolen goods, having found the accused in possession in the other case. I utterly disbelieve the explanation tendered and on the authority of the Proudlock case that leaves me in the position where there simply is no evidence before me to explain the possession. That leaves you with the doctrine of recent possession which says that from the fact of the accused’s possession of recently stolen goods the Court may infer at the lower level that he was in possession with the knowledge of their stolen origin; at the higher level where the recency of possession in the circumstances warrant that he was the thief or one of the thieves. In this case on all of the evidence and utterly having disbelieved the defence evidence adduced, I am left with the operation of the fact of possession of recently stolen goods and the inferences fairly to be drawn therefrom and I infer beyond any reasonable doubt in my mind that Mr. Terrence was a knowing participant in the events of that night relating to the vehicle and its licence plates from the beginning. There will be a finding of guilt.

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The Proudlock case, which is reported in [1979] 1 S.C.R. 525, is authority for the proposition that evidence which is disbelieved by the trier of fact is not “evidence to the contrary” within the meaning of subs. 2(a) of s. 306 of the Criminal Code and it has little bearing on the central question raised by this appeal namely, whether the Crown has proved beyond a reasonable doubt that the respondent was in fact in “possession” of the car within the meaning of s. 3(4)(b).

In the course of his reasons for judgment rendered on behalf of the Court of Appeal, Mr. Justice MacKinnon reviewed the relevant cases concerning the ingredients of possession under s. 3 (4)(b) of the Criminal Code and concluded that in order to establish “possession” under that section it was necessary that there should be evidence of control on the part of the accused. In the course of these reasons he said:

In my view, on the proven facts the necessary measure of control was not established beyond a reasonable doubt by the Crown, nor do those facts allow for the invocation of s. 21. If, by way of example only, it were established that the appellant had directed Hayes to drive to Kingston, that, in light of all the other proven facts, would in my view satisfy the requirement of some measure of control over the car. If, by way of further example, he had been seen handing the stolen licence plates to Hayes for them to be placed on the motor vehicle that, once again in my view, would be sufficient to warrant the application of s. 21 and to establish constructive possession of the car by the appellant.

Section 21 of the Criminal Code defines the meaning of “parties” to an offence and involves the question of common intention. It will be remembered that in the present case there is no suggestion that the respondent participated in any way in the actual theft of the car by an unknown person which took place some time before he was invited to drive in it and there is nothing to support a finding of common intention in relation to the offence of “possession” with which the respondent is here charged.

The Court of Appeal had reference to the case of R. v. Lou Hay Hung (1946), 85 C.C.C. 308, which was a decision of its own court concerned with a charge under the Opium and Narcotic Drug

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Act, 1929 (Can.), c. 49 and in which Mr. Justice Roach in the course of his reasons for judgment, referred to and quoted s. 5(2) of the Criminal Code, the predecessor of s. 3(4)(b), in the following terms at p. 321:

Under s. 5(2), both ‘knowledge’ and ‘consent’ are necessary. I have already stated that, in my opinion, there is no doubt that the appellant knew that the accused Watson had opium in the premises. I have been more than a little concerned with the question whether or not, on the evidence, it should be held that he also consented.

In the same set of reasons, Mr. Justice Roach referred to the judgment of O’Halloran J.A. in R. v. Colvin and Gladue, [1943] 1 D.L.R. 20, where he said at p. 25:

“Knowledge and consent” which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of “possession” in the previous s. 5(1)(b). It follows that “knowledge and consent” cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked.

In the course of the reasons for judgment rendered by Mr. Justice MacKinnon on behalf of the Court of Appeal in the present case, he had occasion to say of the above passage from Mr. Justice O’Halloran’s judgment:

The judgment of O’Halloran, J.A. in Colvin and Gladue, the relevant passage of which for our purposes being the one quoted by Roach J.A. (supra) to the effect that ‘knowledge and consent cannot exist without the co-existence of some measure of control over the subject-matter’, has been followed by British Columbia Courts in subsequent decisions: Rex v. Sherman, 62 B.C.R. 241, 1 C.R. 153, 1946 1 W.W.R. 479; Regina v. Bunyon (1954), 110 C.C.C. 119; Regina v. Dick and Malley (1969), 7 C.R.N.S. 75, 68 W.W.R. 437; R. v. Baker—May 21, 1976, (B.C.C.A.) (unreported as yet).

The courts in Quebec have adopted the same reasoning as will be seen by reference to R. v. Sigouin, [1966] 1 C.C.C. 235, and R. v. Fournier (1978), 43 C.C.C. (2d) 468.

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As I have indicated, I agree with the Court of Appeal that a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code and accordingly I do not consider that the Court of Appeal for the Province of Ontario erred in this regard.

As to the second ground of appeal, it appears to me to be implicit in the manner in which it is stated that the respondent knew the automobile to be stolen and as I do not find any evidence to justify this conclusion, I do not think that the question arises in the present case.

For all these reasons I would dismiss this appeal.

Appeal dismissed.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: Mark L. Kerbel, Toronto.