Clay v. The King

Clay v. The King
Collection
Supreme Court Judgments
Date
1951-10-12
Report
[1952] 1 SCR 170
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Clay v. The King, [1952] 1 S.C.R. 170
Date: 1951-10-12
John Clay (Plaintiff) Appellant;
and
His Majesty The King (Defendant) Respondent.
1951: June 4; 1951: October 2, 12.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.
Reporter’s Note—The appeal was argued on June 4, 1951 before Kerwin, Kellock, Estey, Locke and Fauteux JJ. By order of the Court it was re-argued before the full bench on Oct. 2.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal Law—Theft—Receiving—Retaining—Recent Possession—Whether where explanation rejected but accused acquitted of receiving conviction on retaining charge maintainable—Whether doctrine of recent possession applies to retaining—Cr. Code s. 399.
The accused was charged with (a) receiving and (b) retaining stolen goods knowing them to be stolen. The evidence established that the goods were found in the recent possession of the accused. He gave no evidence but his wife, called as a witness on his behalf, gave an explanation as to how the goods came into her husband’s possession. The trial judge, sitting without a jury, found that the explanation was not a reasonable one but acquitted the accused on the receiving charge and convicted him on the charge of retaining. An appeal to the Ontario Court of Appeal was dismissed but leave to appeal to this Court was granted on the following questions of law: (a) The doctrine of recent possession does not apply to a charge of retaining stolen goods; (b) The learned trial judge having acquitted the accused on a charge of receiving could not in the circumstances of the case convict him on a charge of retaining; (c) An accused person cannot be convicted of both of the offences of receiving and retaining.
Held: Rinfret C.J., Rand, Kellock, Estey, Locke and Cartwright JJ., (Kerwin, Taschereau and Fauteux JJ. dissenting):
1. The appeal should be allowed.
2. An accused person cannot be convicted both of receiving and of retaining. R. v. Yeaman 42 Can. C.C. 78; R. v. Searle 51 Can. C.C. 128; Frozocas v. The King 60 Can. C.C. 324; Ecrement v. The King 84 Can. C.C. 349.
3. The accused having been acquitted on a charge of receiving, could not in the circumstances of the case be convicted of retaining.
Per Rand, Kellock, Locke and Cartwright JJ. The accused having been acquitted on the receiving charge it was for the Crown to establish subsequent guilty knowledge which it failed to do. There was accordingly no evidence or no sufficient evidence upon which a charge of retaining could be supported.
Per Kerwin J. contra. The rejection of the explanation permits the doctrine of recent possession to apply to the charge of retaining. Not only was there evidence to determine that the explanation was not reasonable but it appeared that was the only proper conclusion.
Per Taschereau and Fauteux JJ. contra. In acquitting the accused on the charge of receiving the trial judge said he did not accept the explanation and therefore the presumption was not rebutted and it was open to him to decide as he did.
Held: also, Rinfret C.J. Kerwin, Taschereau, Estey and Fauteux JJ., (Rand, Kellock, Locke and Cartwright JJ. dissenting). The doctrine of recent possession applies to a charge of retaining. The King v. Lum Man Bo 16 Can. C.C. 274; Lopatinsky v. The King [1948] S.C.R. 220.
Per Taschereau and Fauteux JJ. S. 399 provides for two distinct offences “receiving” or “retaining” knowing it to have been so obtained. It matters not then since when on a charge of retaining, or how long after on a charge of receiving, the guilty knowledge co-exists with possession, provided it does at any time during retention on the former, and at the time of reception on the latter. To import into the section any question as to the duration of the guilty knowledge is to add to the word “knowing”, the most essential word in the entire section, a qualification expressly rejected from the provision by the very word itself.
Per Estey J. The language adopted by Parliament indicates it contemplated the application of the doctrine to the offence of retaining, and this view finds support in that Parliament has not since Lum Man Bo supra was decided in 1910, enacted any amendment to the section.
Per Rand, Kellock, Locke and Cartwright JJ. contra. The doctrine does not apply, the Crown must establish not only possession but knowledge subsequently acquired of the stolen character of the goods. R. v. Cohen 8 Cox C.C. 41 and R. v. Sleep 1 Le. & Ca. 44, applied. The King v. Lum Man Bow supra, Richler v. The King [1939] S.C.R. 101 and Lopatinsky v. The King, supra, distinguished. APPEAL by the accused from the judgment of the Court of Appeal for Ontario[1] affirming his conviction by Forsyth County Court Judge in the County Court Judges’ Criminal Court for the County of York on a charge of retaining stolen goods in his possession. Reversed.
C.L. Dubin K.C. for the appellant. The doctrine of recent possession does not apply to a charge of retaining. The theory upon which the doctrine evolved was that a person who was in possession of goods recently stolen was likely to be the thief and he was called upon for an explanation as to the manner in which they came into his possession. It had been the law that the so-called presumptive inference from which a jury might convict related only to theft and not receiving. R. v. Langmeand[2] apparently for the first time extended that charge to receiving because receiving also contemplates a guilty knowledge at the time of receipt. Receiving recently stolen goods brings into question only the initial possession of the goods whereas on a charge of retaining the initial possession is presumed to be innocent and a person is guilty of retaining as distinguished from receiving when having come by the goods honestly he later acquires knowledge that they are stolen and keeps them. On such a charge an accused is not called on to explain his initial possession because it is presumed innocent and the entire doctrine of recent possession only calls upon the accused to explain his initial possession. R. v. Searle[3]; R. v. Jones[4]; R. v. Carmichael[5]; R. v. Powell[6]; R. v. Lamoureux[7]; R. v. Scott[8]; R. v. Watson[9].
The judgment in R. v. Lum Man Bow[10] to the contrary was wrongfully decided and it will be noted that the argument now submitted was not made in that case, The contrary view in Richler v. The King[11] is obiter and the Court was not dealing with the argument now submitted.
In the alternative, assuming that the doctrine of recent possession applies to a charge of retaining, the learned trial judge having acquitted the accused of receiving could not properly in the circumstances have convicted him of retaining and the verdict is inconsistent. Assuming the doctrine did apply all that is thereby required was an explanation that might be reasonably true that the accused came by the goods honestly. Roach J.A. in the Court of Appeal held that the doctrine only required an explanation of how the accused came by the goods and that an explanation which rebuts the presumption on the receiving charge also rebuts it on the retaining charge and in the absence of other evidence establishing guilty knowledge at the time of receiving he is entitled to an acquittal. By an acquittal on the charge of receiving the accused has rebutted the presumption of guilty knowledge at the time he initially came into possession of the goods and any adverse inference from recent possession of stolen goods has been met. The Court of Appeal failed to give any effect whatever to the acquittal on the charge of receiving. Having been acquitted of receiving the accused is in the same position as if his explanation had been accepted and he could not properly be convicted unless there was evidence that after his initial possession of the goods he subsequently learned they were stolen. There is no such evidence. Neither the trial judge nor the Court of Appeal made any such finding and the conviction was made and affirmed solely on the doctrine of recent possession. The conviction on the charge of retaining was inconsistent with the acquittal on the receiving charge. R. v. Cook[12]; R. v. Mondt[13]; R. v. Hayes and Pallante[14]; R. v. Christ[15].
The accused cannot be convicted of both the offences of receiving and retaining. The Court of Appeal held that the accused should have been convicted of receiving but having been acquitted on the receiving charge all the evidence could be considered on a retaining charge as if there had been no acquittal on the charge of receiving, and that the accused could be convicted of both offences, but the offences are alternative offences and an accused cannot be guilty of both. Where the accused has knowledge of the goods being stolen at the time of their reception, he is guilty of receiving and that offence is complete. If he continues to hold them he is still only guilty of receiving. It is only where he realizes some time after he initially received them that the goods are stolen and then retains them that he is guilty of retaining. R. v. Brown[16]; R. v. Yeamen[17]; R. v. McClennan[18]; Ecrement v. The King[19]; R. v. Ungaro[20].
C.P. Hope K.C. for the respondent. “Receiving” and “retaining” in s. 399 relate to two different offences. R. v. Searle[21]. This statement of the law applies here as the appellant was acquitted of “receiving” and convicted of “retaining”. The appellant contends the doctrine of recent possession does not apply to a charge of retaining. It has long been held that it applies to the offence of receiving. R. v. Langmead[22]. The Court of Appeal of British Columbia held that it applied to the offence of retaining. R. v. Lum Man Bow[23] and R. v. Davis[24]. The latter case proceeded on the basis that the Crown must prove that the goods were in fact stolen. In R. v. Parker[25] McDonald J.A. at p. 12 says that in cases of receiving and retaining the question is not whether the explanation is believed but whether it is a reasonable one. O’Halloran J.A. in R. v. Mandzuk[26] at 290 “Lack of proof that the appellant knew the nature of the property and that it was stolen, fail to take into consideration that when a person is found in possession of recently stolen goods (in this case slightly under two months) that fact may be regarded as circumstantial evidence of his knowledge (and cf. R. v. Wilson[27] Martin J.A. at 67) that they were stolen, unless he gives a reasonable explanation of his possession of them.” Bird J.A. at 295 “There being evidence of recent possession of stolen goods, a prima facie presumption arises that the accused is either the thief or the retainer of the stolen property.” In R. v. Tuck[28] the accused convicted of retaining appealed, one ground being misdirection as to recent possession. Roach J.A. who wrote the judgment of the Court says at p. 52 “The proper direction on the trial of an accused charged with receiving or retaining has been settled, if there was previously any doubt about it by the Supreme Court of Canada in Richler v. The King[29].” At 103 the learned Chief Justice, with whom the other members of the Court agreed, said: “The question, therefore, to which it was the duty of the learned trial judge to apply his mind was not whether the explanation might be reasonably true, or to put it in other words, whether the Crown had discharged the onus of satisfying the learned trial judge beyond a reasonable doubt that the explanation of the accused could not be accepted as a reasonable one and that he was guilty”, and at p. 54 “It is true that the learned trial judge in those parts of his charge which I have quoted refers to the doctrine of recent possession in cases where the charge is receiving. But since the doctrine of recent possession applies similarly to a charge of retaining there was no misdirection…” In R. v. Lopatinsky[30] Estey J., who wrote the judgment of the Court, applies the doctrine to the offence of retaining.
As to the appellant’s second point that the trial judge having acquitted on the receiving charge could not convict on the retaining charge. He was entitled to convict on both or either of them according to the way in which he viewed the evidence. R. v. Langmead supra per Pollock C.B. at 467, Martin B. at 468. In the instant case it was just as logical to convict of the retaining on an acquittal of receiving as it was in the Langmead case to acquit of theft and convict of receiving. It is for the jury to decide what is the proper verdict having regard to the facts. R. v. Lincoln[31]. The reasoning of Roach J.A. who wrote the judgment of the Court of Appeal[32] is the correct reasoning, that of Martin J.A. in R. v. Brown[33] appears to be based on fallacious reasoning.
As to the appellant’s third point that an accused person can not be convicted of both the offences of receiving and retaining, the point is irrelevant as the appellant was convicted only of retaining.
THE CHIEF JUSTICE: Leave to appeal was granted on the following questions of law:
(a) The doctrine of recent possession does not apply to a charge of retaining stolen goods; (b) The learned trial judge having acquitted the accused on a charge of receiving could not in the circumstances of the case convict him on a charge of retaining;
(c) An accused person cannot be convicted of both offences of receiving and retaining.
In my humble view, the answer to Question (b) is sufficient to dispose of the appeal.
There is no doubt that the weapons were stolen goods; that the accused received them and that he had acquired recent possession of them. The only other element necessary to be proved in order to justify conviction on the charge of receiving was that the accused, at the time he received them, knew they were so stolen.
To establish that necessary element “the Crown relied on the doctrine of recent possession by the application of which the burden rested on the accused to give an explanation that he came by these weapons innocently”, which explanation might reasonably be true, and, because it might reasonable be true, would raise a doubt as to his guilt.
Such explanation was given by the wife of the accused. The trial judge analyzed that explanation, examined every fact or element of same and came to the conclusion that it was not reasonable; but, when he came to apply that conclusion to the charge of receiving, he nevertheless acquitted the accused of that charge. On the same explanation, which he did not believe, he found the accused guilty of retaining.
As the only ground upon which he could acquit the accused of receiving was the explanation given by the wife, one must come to the conclusion that he believed it and found it reasonable with regard to the charge of receiving; while he stated in his judgment that he did not believe it with regard to the charge of retaining.
In my opinion that is incompatible. He could not at the same time believe the explanation or find it reasonable and disbelieve it and find it unreasonable.
All the facts considered by him with regard to that explanation, which led him to state that he thought the latter unreasonable, were all facts having to do with the charge of receiving. None were fresh facts which happened subsequent to the receiving and relating only to the charge of retaining. That is precisely the interpretation of Roach J.A., who delivered the reasons for the Court of Appeal:[34]. “The trial judge held that the explanation was not reasonable but he nevertheless acquitted him”. There was only one explanation given and it applied to the charge of receiving. There was no distinct explanation given as regard to the charge of retaining.
There were no new facts put in evidence whereby a distinction could be made between the receiving and the retaining.
Very respectfully I think that the trial judge having acquitted the accused on the charge of receiving could not, in the circumstances of the case, convict him on a charge of retaining.
In my view, there is an absolute contradiction between the two findings of the trial judge.
For that reason, I am of opinion that the appeal should be allowed and the conviction set aside.
However, I understand that the reason for submitting de novo the appeal to the full Court was mainly to have the Court pronounce upon the question whether the doctrine of recent possession does or does not apply to a charge of retaining stolen goods; and on that additional point I wish to state that I concur with the other members of the Court who express the opinion that the doctrine does apply equally to a charge of retaining as to a charge of receiving stolen goods.
KERWIN J. (dissenting)—This is an appeal, by leave granted under section 1025 of the Criminal Code as enacted by s. 42 of c. 39 of the Statutes of 1948. The appellant was convicted in the County Court Judge’s Criminal Court of the County of York, on June 7, 1950, of retaining in his possession, in the months of January and February, 1950, a Remington repeating shot gun and a Remington repeating rifle, the property of Grayson D. Burruss and therefore stolen, knowing the same to have been so stolen. This charge was the fourth count in a charge sheet which charged the appellant, first, with breaking and entering by day in January, 1950, the dwelling house of Grayson D. Burruss and stealing three guns and other articles, second, with breaking and entering by night in January, 1950, the same dwelling house with intent to commit theft, third, with receiving in his possession in the months of January and February the shot gun and rifle theretofore stolen, knowing the same to have been so stolen.
It was proved that on January 16, 1950, the gun and rifle were stolen from Mr. Burruss’ house. The gun was found in the possession of the accused in his house on February 25, 1950. The rifle had on some earlier date in February been handed by the accused to one Enge for sale by the latter on terms that it would be sold for at least twenty dollars and that anything over that could be kept by Enge. There is no question about the identity of the gun and rifle and of the fact of their having been stolen. The accused did not give evidence but an explanation as to how these two articles came into his possession was given by his wife, which to some extent was corroborated by the testimony of Enge who had been called on behalf of the Crown. The County Court Judge found the explanation not reasonable and he found the appellant guilty on the fourth count, that is, of retaining, but endorsed the charge sheet with a verdict of not guilty on counts 1, 2 and 3.
Under these circumstances the first point argued was that the doctrine of recent possession does not apply to a charge of retaining. The applicable provision of the Criminal Code is s. 399, which reads as follows:
399. Every one is guilty of an indictable offence and liable to fourteen years’ imprisonment, who receives or retains in his possession anything obtained by any offence punishable on indictment, or by any acts wheresoever committed, which, if committed in Canada would have constituted an offence punishable upon indictment, knowing such thing to have been so obtained.
The offence of retaining was unkown to the common or statute law of England but was introduced in Canada when the Criminal Code was first enacted in 1892. It is an entirely separate offence from receiving. The doctrine of recent possession, as to both theft and receiving, was clearly established in Reg. v. Langmead[35]. There, Langmead had been indicted and tried for stealing sheep, and on a second count, for receiving the sheep knowing them to have been stolen. The jury convicted him on the latter count. It was argued that upon an indictment for receiving stolen goods, there should be some evidence to show that the goods were in fact stolen by some other person, and that recent possession of the stolen property was not alone sufficient to support such an indictment as such possession was evidence of stealing and not of receiving. That argument was not accepted. Chief Baron Pollock pointed out that the distinction between the presumption as to felonious receiving and stealing is not a matter of law. Blackburn J. stated that as a proposition of law, there was no presumption that recent possession points more to stealing than receiving. He continued:
If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property, the presumption is that he received it.
Of course, he was concerned only with the charges of stealing and receiving as there was no such offence as retaining known to the law at that time.
Logically there is as much reason to apply the doctrine to a charge of retaining as to a charge of receiving. It was so held by the Court of Appeal for British Columbia in The King v. Lum Man Bow[36], and by this Court in Lopatinsky v. The King[37]. The point may not have been raised in those cases in the same manner as it was presented on this appeal but it was distinctly mentioned in the factum for the Crown, filed in this Court in the Lopatinsky appeal. I agree with the view of Roach J.A. in the Court of Appeal[38] in the present case where he states:
Where the charge is retaining the explanation relates to the period of retention in this way and to this extent, that if at the time the accused received the goods he had knowledge that they were stolen, he continued thereafter to have that knowledge, but if at the time he received them he had not that guilty knowledge, there is no presumption that he thereafter acquired it. There is no burden on the accused who is charged with the offence of retaining to do more than give an explanation which might reasonably be true that at the time of receiving the goods he had not the guilty knowledge that they were stolen. Indeed, it is not difficult to think of a case in which a party innocently obtained possession of stolen goods and, apart from giving an explanation of the circumstances in which those goods came into his possession, he could do no more.
From the foregoing it follows that if an accused stands charged with both receiving and retaining stolen goods an explanation which rebuts the presumption on the receiving charge also rebuts it on the retaining charge and in the absence of other evidence establishing guilty knowledge at the time of receiving, he is entitled to an acquittal on that charge and in the absence of evidence establishing that after having received them he acquired knowledge that they were stolen, he is entitled to an acquittal on the retaining charge.
The second point raised by the appellant is that the trial judge having acquitted the accused of the charge of receiving could not, in the circumstances, convict him of retaining. However, it is not as if the trial judge had stated that he had accepted the explanation offered on behalf of the accused and therefore dismissed the charge of receiving, in which case it might be argued that there was nothing upon which he could base the conviction for retaining. In the circumstances existing in the present case, the fact that for some unexplained reason the appellant was found not guilty of receiving does not prevent a verdict of guilty of retaining. The rejection of the explanation permits the doctrine of recent possession to apply to the charge of retaining. It should be added that not only is there evidence upon which the trial judge could determine that the explanation was not reasonable but it appears that was the only proper conclusion.
The third point raised, that an accused person cannot be convicted of both offences, receiving and retaining, does not arise since the appellant was found not guilty of receiving.
The appeal should be dismissed. The judgment of Taschereau and Fauteux, JJ. was delivered by:
FAUTEUX J.:—It appears necessary, in view of the arguments raised in this appeal, to deal, at first, with the true legal notion of the offence or offences, created by the Canadian Parliament, in s. 399 of the Criminal Code, and then, consider the evidence on record and the conviction of retaining which is questioned by this appeal.
As to the first point.
By—and ever since—the enactment of the Criminal Code of Canada, retaining, as well as receiving, goods obtained by theft, knowing them to have been so obtained, constitutes a criminal offence in Canada. In this respect and since 1892, the Canadian law is at variance with the English law, wherein only the act of receiving, and not the act of retaining, constitutes an offence.
One of the consequences of this change and this difference in the two laws is that the cases decided in England,—where the occasion to discuss and apply a provision similarly worded as s. 399 never arose,—do not and cannot offer a precise and exhaustive definition of receiving and of retaining, both standing in relation to one another, as they do in s. 399.
But an important feature of the change, with respect to the real import of the section, stems from the very process by which it was accomplished. For this change in the law was not achieved by amendment, but by a codification of what became the main body of the Canadian Criminal Law, a law flowing from sources different in nature and origin. This very fact brings to the fore the rule of interpretation related to codification, according to which resort must not be had to the law pre-existing the codified law, unless the provisions of the latter be obscure and ambiguous.
Thus, to gather the true legal notion of the provisions of s. 399, the “proper course”—in the very words of Lord Halsbury, L.C., in Bank of England v. Vagliano Brothers[39], at page 151:
* * * is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
But whether or not this rule is applied—and I can think of no reasons why it should not in the case under consideration—I fail to see what the difficulty is with respect to the first point, i.e., what facts may constitute an offence under the provisions of the section.
In the very terms of the provision under our law, everyone commits an indictable offence who:
(a) “RECEIVES or RETAINS in his possession * * *”
(b) “* * * anything obtained by any offence punishable on indictment, or by any acts wheresoever committed, which, if committed in Canada, would have constituted an offence punishable upon indictment
(c) “* * * KNOWING such thing to have been so obtained.”
The natural meaning of this language is clear and non-ambiguous.
In (a):—If the evidence indicates the reception, on a charge of receiving, or the retention, on a charge of retaining, the first element, respective to each case, is fully established. This conclusion is equally true if, on either charge, both the reception and the retention are shown in the evidence; for—as far as the evidence is concerned—the question in each case, is not related to superabundance but only to sufficiency of the proof. Indeed, and in fact, less frequent may be the cases—but there are—where the one who receives does not retain, at least for some measurable time. The case of Milton v. The King[40] is a case in point. Equally, accidental may be the cases where a person who retains dishonestly, has received honestly, even though he had throughout the knowledge that the goods were stolen. This is illustrated by the case of Rex v. Matthews[41]. Again and by the mere operation of s. 69 or others, one may in law, if not in fact, retain without having first received. The difficulty there may be in certain cases,—where, as an illustration, the reception and the retention amount to one single transaction—to determine when the reception ceases and when the retention begins, is one related to evidence and not to substantive law.
In my view, this element in (a), while being worded in all-embracing, but not obscure nor confusing terms, is clear evidence of the will of the Canadian Parliament to cover in the most complete and effective manner the case of possession, at both reception and retention time.
In (b):—No discussion arises in this case.
In (c):—The third element which, as the second, is common to receiving and retaining, is the guilty knowledge. The words in the enactment are “knowing such thing to have been so obtained”. The guilty knowledge must then co-exist with possession,—and this statutory requirement is fully satisfied if it does—(1) at the time of reception, on a charge of receiving, or (2) at any time during the period of retention, on a charge of retaining. In this respect, receiving and retaining are distinguishable as criminal offences. And once an accused is proved to have received or retained anything, obtained in any of the manners indicated in (b), the question is:—Did he, (1) at the time of receiving or (2) at any time during the period of retaining, or (3) throughout the whole period of his possession, have the knowledge that the thing was so illegally obtained?
An affirmative answer to (1), or (2), or (3) undoubtedly establishes clear guilt and certainly makes the accused amenable to justice, for receiving in (1), for retaining in (2), or either of them in (3); for in each case, the elements of guilt, as enacted by Parliament, are present.
Indeed and in the third alternative, guilty knowledge co-exists with both the reception and the retention of the possession. The fact that the evidence on a charge of retaining would indicate that the guilty knowledge proven to exist during the retention, would have equally preexisted to it, or the fact that the evidence on a charge of receiving would indicate that the guilty knowledge, proven to exist at the time of reception, would not have ceased to exist but continued thereafter, cannot alter but only strengthen, in each case, the proof of the co‑existence of the guilty knowledge with possession. For the enactment merely says “knowing the same to have been so obtained”. No matter then, since when, on a charge of retaining, or how long after, on a charge of receiving, does the guilty knowledge co-exist with possession, provided it does at any time during retention, on the former, or at the time of reception, on the latter. To import in the section any like questions as to the duration of the knowledge is, in my view, adding to the word “knowing”—the most essential word in the entire section—a qualification expressly rejected from the provision by the very word itself.
In brief, the section provides, as it was decided in several Canadian cases, for two distinct offences, the first being receiving and then the second being retaining anything illegally obtained, knowing it to have been so obtained.
With respect to punishment, the inescapable consequence of the distinction between the two offences is that the sentence stated in the section is the authorized punishment for the commission of either of the two offences therein created.
It is from the latter conclusion—which is not disputed—that stem the following argument and conclusion made on behalf of the appellant.
It is said that Parliament never intended that, in addition to a penalty for receiving, the accused should be liable to a further penalty if, after so acquiring stolen goods, he retains them. On the basis, and as a result of this assumption, another and a new concept of the offence of retaining is advanced and concluded to be the one meant by the language of the section. It is suggested that retaining stolen goods, knowing them to have been stolen, ceases to be the offence of retaining once the evidence, establishing a guilty knowledge during retention, also indicates that this guilty knowledge was gained at the time of reception of the stolen goods or, to put it with more precision, that the guilty knowledge in retaining must be—and, therefore, must be proved to be—not only subsequent to reception but exclusively so.
One would observe, at first, that this concept of retaining—in support of which no precedent has been found to exist—rests on the limited consideration of a case where receiving and retaining amount to a continuous or a single transaction. It would nevertheless, if accepted, affect the infinite variety of cases where retaining or receiving may, in fact and in law, not amount to a continuous or single transaction. This, particularly in view of the clear language of the section, calls for the necessity of examining both the assumption and the conclusion advanced on behalf of the appellant.
As to the first.
Whether or not Parliament intended, in the particular case above stated, that an accused should be liable to two penalties, is a matter that we are not called upon to decide in this case. In all the reported cases where the occasion to decide the question could have arisen, one penalty only was given, or if two were stated, they were made concurrent. I fail nonetheless to appreciate how a negative answer to the question could afford a valid criterion for the interpretation of the section. For the fact that a man may not be punished twice for the same offence does not necessarily import that he may not twice be prosecuted on a different charge setting up another legal aspect of the same facts. S. 15 of the Criminal Code supports that proposition.
As to the conclusion of the new definition.
With deference, I am unable to agree with the view that while, admittedly, the offence of retaining must, as one of its elements, include the guilty knowledge at some time while the possession is being retained, it must also exclude it at the time when possession is gained. I can think of no case where Parliament states—except in express language—the elements of a crime in maximum or exclusive terms and where, as a consequence, evidence must be made to exclude certain facts in order to reach the degree of certainty required for a conviction in criminal matters. Receiving and retaining, in s. 399, are certainly not described in such a manner. Strange and most technical, I think, it would be (a) if a person accused of retaining, could, having admitted the existence of the guilty knowledge during the retention, plead successfully that this knowledge had been already gained by him at the very time the goods were received; or, conversely, (b) if a person, accused of receiving, could plead successfully on that charge, that the guilty knowledge existing, at the time he gained possession, continued thereafter with the retention of the possession. Under the authorities where possession is proved to be recent in relation to theft, a presumption arises that the possessor came by the goods dishonestly. If, consequently, the above definition of retaining is accepted, this presumption of fact could, by itself, defeat the case of the prosecution on a charge of retaining, where the evidence indicates recent possession.
That the evidence, in some cases, may, on either charge, indicate the elements of both crimes is certain, but, if it does, I can find no justification to say that one of either the charge of receiving or the charge of retaining should have been preferred, by preference to the other.
For these reasons, I am not only unable to conclude that the above contention, made on behalf of the appellant, casts any obscurity or ambiguity on the natural meaning of the provision, but I am convinced that, if accepted, it would directly defeat the only import of the word knowing.
Dealing now with the second point, i.e., the evidence on record with respect to the conviction of retaining in the present appeal.
In the present case, the evidence revealed particularly the following facts: On the 16th of January 1950, the residence of one Burruss was broken into and entered; certain chattels, including a Remington repeating shot-gun and a Remington repeating rifle were stolen therefrom; having gained possession of these weapons, the appellant gave the rifle—valued at sixty-eight dollars—to an immediate neighbour, one Enge, with instructions to sell it, at a price left at the latter’s discretion, provided that out of the proceeds of the sale, twenty dollars would be remitted to the appellant; the other gun was still in the possession of the latter, on the 25th of February 1950, when it was seized in execution of a search warrant.
Thus the appellant—even on the theory of a defence—did, as a fact, receive and retain possession of stolen goods. Of this there is no dispute.
The only point in issue is related to the third element, i.e., the guilty knowledge of the appellant.
One cannot in fact—even if he may in law—retain possession of a thing without having first gained possession of the same. Thus, on a charge of retaining, in order to decide whether the retaining is honest or dishonest, it becomes not only pertinent and material but essential to consider whether there is any admissible evidence in the case indicating that the accused had or had not the guilty knowledge when he gained possession.
For once the character of this original possession is, in a given case, ascertained by direct or circumstantial evidence, as being dishonest or not proved to be such, the character of this original possession cannot suddenly change without further evidence of some subsequent intervening fact altering it. Thus, and in the absence of any such subsequent fact, if the knowledge is shown by the evidence to be dishonest at the time when possession is gained, no presumption arises that it becomes honest during retention; and conversely, if the knowledge is proved to be honest—or not proved to be dishonest—at the time the accused gained possession, no presumption can either arise, without such subsequent fact, that this knowledge at the time possession was gained became dishonest during the period possession was retained.
Knowledge is a matter of fact and the proof of its character is not dependent on the nature of the charge laid but on the very nature of the facts disclosed in the evidence.
Amongst the methods of proving the guilty knowledge, the doctrine of recent possession must be considered. Thus, any person, found in possession of stolen goods, is presumed to have come by them dishonestly if such possession is recent in relation to the theft; or, as was said by the Lord Chief Justice in Rex v. Powell[42], at page 2:—
The possession of recently stolen property throws on the possessor the onus of shewing that he got it honestly.
The presumption being applied in the case of an indictment with a count of theft and a count of receiving, the jurisprudence is that in the absence of any explanation which might reasonably be true, the accused may—but must not necessarily—be found guilty of either theft or receiving. But the presumption itself is one of fact and not one of law. Again, it is not dependent on the charge laid, but it rests solely on the fact that the possession of the stolen goods is recent in relation to the theft thereof. The guilty knowledge is then presumed. The fact that there are no a