R. v. Kowlyk

McIntyre J.‑‑I have had the advantage of reading the reasons for judgment prepared in this appeal by my colleague, Justice Wilson. She has set out the facts and the history of these proceedings in the courts of Manitoba and I need not make any detailed reference to those matters. I would observe, however, that implicit in the reasons of the trial judge is a finding of recency of possession which was specifically supported in the Court of Appeal, and the appeal proceeded upon that basis. I am unable, with the greatest deference to my colleague's views, to agree with her conclusions or with her disposition of the appeal. The principal point of disagreement arises from her words, at p. 86:

It would appear, therefore, that in both English and Canadian law recent possession of stolen goods does not give rise to a legal presumption of guilt of theft or of break, enter and theft. Rather it constitutes a material fact from which an inference of guilt of the more serious offence can be drawn. But the strength of the inference will depend on the surrounding circumstances. This leaves open the issue as to whether such an inference can be drawn when there is no other evidence connecting the accused to the more serious offence. [Emphasis added]

It is in these last words that my difference with her views is found, for it is my view, that in both English and Canadian law the unexplained recent possession of stolen property has long been sufficient to allow a permissive, not mandatory, inference of guilt of both theft and offences incidental thereto, even in the absence of other evidence of guilt.

The roots of what has frequently been referred to as the doctrine of recent possession go back at least to the early nineteenth century. In 1830, in Clement's Case (1830), 1 Lewin 113, 168 E.R. 980, the rule was bluntly stated and it was held that possession of a stolen horse three days after its theft was sufficient evidence of stealing. Comments as to the need to show recency of possession before an inference of guilt may be drawn were made in Cockin's Case (1836), 2 Lewin 235, 168 E.R. 1139, and R. v. Hall (1845), 1 Cox C.C. 231. What has been noted by most writers as the most significant of the earlier cases is R. v. Langmead (1864), Le. & Ca. 427, 169 E.R. 1459. The accused, Langmead, was charged with two counts: (1) theft of sheep, and (2) feloniously receiving the sheep with knowledge that they had been stolen. He was convicted of the second count. Counsel for Langmead, at p. 436 Le. & Ca., 1462 E.R., in arguing that there was no evidence to support a conviction on the second count and that the jury should have been directed to acquit upon that count, conceded that recent possession unaccounted for would alone be sufficient for a conviction of theft, but it would not alone suffice in considering the question of guilt on a charge of feloniously receiving the sheep, knowing them to be stolen. This framed the issue in the case. The court unanimously affirmed the conviction, holding that unexplained recent possession was evidence either of theft or of feloniously receiving, depending on the circumstances. Pollock C.B. said, at pp. 439‑40 Le. & Ca., 1463‑64 E.R.:

We are all satisfied that the Chairman could not have withdrawn this case from the consideration of the jury, or have directed them that there was no evidence that the prisoner had received the sheep knowing them to have been stolen. Speaking for myself, I may add that, in my opinion, the distinction taken by Mr. Carter between a charge of stealing and one of receiving, with reference to the effect of evidence of recent possession, is not the law of England. If no other person is involved in the transaction forming the subject of the inquiry, and the whole of the case against the prisoner is that he was found in the possession of the stolen property, the evidence would, no doubt, point to a case of stealing rather than a case of receiving; but in every case, except, indeed, where the possession is so recent that it is impossible for any one else to have committed the theft, it becomes a mere question for the jury whether the person found in possession of the stolen property stole it himself or received it from some one else. If, as I have said, there is no other evidence, the jury will probably consider with reason that the prisoner stole the property; but, if there is other evidence which is consistent either with his having stolen the property, or with his having received it from some one else, it will be for the jury to say which appears to them to be the more probable solution. In this case, although there is some evidence that the prisoner stole the sheep, yet the inference that he sent his boys to drive the sheep and to receive them from some one who had stolen them in connection with him appears to me the more cogent. However this may have been, we are all of opinion that there was evidence to go to the jury.

Blackburn J. said, at p. 441 Le. & Ca., 1464 E.R.:

I am of the same opinion. I do not agree with Mr. Carter in thinking that recent possession is not as vehement evidence of receiving as of stealing. When it has been shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances. If he had been seen near the place where the property was kept before it was stolen, they may fairly suppose that he was the thief. If other circumstances shew that it is more probable that he was not the thief, the presumption would be that he was the receiver. The jury should not convict the prisoner of receiving, unless they are satisfied that he is not the actual thief.

It is clear, I would suggest, that R. v. Langmead, supra, stands for the proposition that the unexplained recent possession of stolen goods will permit an inference of guilt on a charge of theft, or upon a charge of receiving, and it will be for the jury or the trier of fact, on a consideration of all the circumstances, to decide which of the two offences has been shown. This principle was applied in R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850, a case which was followed in this respect in Reference re Regina v. Coffin, [1956] S.C.R. 191, and R. v. Lovis; R. v. Moncini, [1975] 2 S.C.R. 294. In R. v. Exall, articles stolen at night were found in possession of the accused the following morning. Pollock C.B., at pp. 924‑28 F. & F., 851‑53 E.R., said:

The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery.

And so it is of any crime to which the robbery was incident, or with which it was connected, as burglary, arson, or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found committed that other crime.

The law is, that if, recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called up to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable. The strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way. And juries can only judge of matters, with reference to their knowledge and experience of the ordinary affairs of life.

Thus, for instance (to put the present case), if the property were the produce of a burglary, then the possession of it, soon after the burglary, is some evidence that the person in whose possession it is found was a party to the burglary. For, at all events, he must have received it from one who was a party to it; and this is strong evidence that he was privy to it, and some evidence that he was a party to it. Whether or not he was so, must be judged of from all the other circumstances of the case.

The most frequently repeated statement of the English law on this question ‑‑which has been specifically approved in this Court in such cases as Richler v. The King, [1939] S.C.R. 101; Ungaro v. The King, [1950] S.C.R. 430; Tremblay v. La Reine, [1969] S.C.R. 431; R. v. Graham, [1974] S.C.R. 206; R. v. Newton, [1977] 1 S.C.R. 399; R. v. Paul, [1977] 1 S.C.R. 181; and Hewson v. The Queen, [1979] 2 S.C.R. 82‑‑is that of Lord Reading in R. v. Schama and Abramovitch (1914), 11 Cr. App. R. 45, at p. 49:

Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes, it always rests on the prosecution. That is the law; the Court is not pronouncing new law, but is merely restating it, and it is hoped that this re‑statement may be of assistance to those who preside at the trial of such cases.

A more recent case, R. v. Aves, [1950] 2 All E.R. 330, in the English Court of Appeal, contains a clear statement that recent unexplained possession alone may be sufficient to raise a permissible inference of guilt. In that case, a conviction for receiving stolen goods was appealed. The question was whether the jury had been properly directed in accordance with the Schama and Abramovitch direction. Lord Goddard C.J. said, at p. 330:

Where the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue. If, however, the explanation offered is one which leaves the jury in doubt whether he knew the property was stolen, they should be told that the case has not been proved, and, therefore, the verdict should be Not Guilty.

I think I might add this as an addendum to the formula above stated. If there is evidence that the prisoner was in possession of property recently stolen and also other evidence which tends to show guilty knowledge, then the judge should direct the jury in the terms which I have mentioned on the question of recent possession, and should then go on to deal with the other evidence against the prisoner which may or may not be consistent with the explanation, if any, which he has given.

Later English cases, such as R. v. Loughlin (1951), 35 Cr. App. R. 69 (C.A.), and R. v. Smith (1983), 148 J.P. 215 (C.A.), are to the same effect.

The more significant cases for our consideration here are those decided in this Court which state the law as it is in Canada, and which are consistent with the earlier cases that have developed the English law. Two of the leading cases upon this question are R. v. Graham, supra, and R. v. Newton, supra. Both of these cases dealt in great part with the question of whether the Crown, before seeking to rely on recent possession, was under an obligation to adduce evidence upon the question of whether the accused offered an explanation for his possession. It was concluded in both cases that the Crown bore no such obligation. This question does not arise here because it was conceded that no explanation was offered. The appellant gave no evidence at his trial and the recency of the possession and the knowledge that the goods were stolen was not questioned in this Court. The sole question at issue here is whether the inference which may be drawn from the unexplained recent possession of the goods in question, standing alone, would support a conviction upon a charge of breaking, entering and theft of those articles found in possession.

Before going further, it will be worthwhile to recognize what is involved in the so‑called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215:

The use of the term "presumption", which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is "inference". In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.

He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre‑trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of the recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.'s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.

Four years later, this Court decided the case of R. v. Newton, supra. At issue in that case was whether a jury instruction with respect to the law of recent possession with its allusion to unexplained possession would constitute a comment on the failure of an accused to testify, contrary to s. 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E‑10. This contention was rejected and that argument was not advanced in this Court. At pp. 401‑2, Dickson J. (as he then was), with whom Laskin C.J. joined, in a judgment concurring in the result, said:

The short question in this appeal is whether the Crown is obliged to adduce evidence of any explanation given by the accused, or absence of explanation, before relying on what has come to be called the "doctrine of recent possession". It has generally been understood that all the Crown need establish in the first instance is that the goods were recently stolen and that they were found in the possession of the accused. Then the jury must be told that they may, not that they must, in the absence of any reasonable explanation, find the accused guilty. In the instant case, the trial judge refused so to instruct the jury being of the view that it was incumbent upon the Crown to adduce evidence as to whether or not the accused had offered any explanation for his possession of the stolen goods. With respect, the judge erred.

There is no duty upon the Crown to lead negative evidence in these circumstances.

Of even greater significance for the case at bar is the judgment of Ritchie J. (Martland and de Grandpré JJ. concurring; Martland, Judson, Spence, Pigeon and Beetz JJ. concurring in a separate judgment). He said that the proper instruction to a jury in recent possession cases is that described by Lord Reading in R. v. Schama and Abramovitch, supra, which, as has been noted, has been approved in many judgments in this Court. He went on to say that evidence of unexplained recent possession, standing alone, raises a prima facie case upon which the trier of fact is entitled to bring in a verdict of guilty, on the facts before him, of breaking, entering and theft. He said, at p. 405:

This statement has come to be referred to by text writers and by many judges as the statement of a "principle" or a "doctrine", but I prefer to think of it in terms of a rule of evidence as to which all judges should charge a jury. The rule has been variously stated in different cases, but in my view the essence of the matter is that in a case such as the present one where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced, the jury should be instructed that the evidence of such possession standing alone raises a prima facie case upon which they are entitled to bring in a verdict of guilty. [Emphasis added.]

While in R. v. Newton, supra, the Court was not called upon to decide the issue of whether recent possession by itself, in the absence of other circumstances which would connect an accused to the theft, could justify a finding of guilt, the words of Ritchie J. above would surely decide the present appeal in favour of the Crown. This is particularly true when it is considered that no other case in Canadian or English law suggests that some other evidence must be present to connect an accused to the crime before an inference of guilt becomes permissible. In my view, the authorities deny that any additional evidence, apart from that of unexplained recent possession of stolen goods, is necessary to permit an inference of guilt.

Two recent appellate decisions are of interest. In R. v. Nickerson (1977), 37 C.C.C. (2d) 337 (N.S.C.A.), an accused charged with breaking and entering and theft under s. 306(1)(b) of the Criminal Code, R.S.C. 1970, c. C‑34 was found in possession of cigarettes stolen from the trailer which had been entered. He offered an explanation which was disbelieved by the trial judge and he was convicted on the basis of the recent possession. His appeal was dismissed. Macdonald J.A., giving judgment for the Court, after commenting on certain authorities, said, at p. 343:

On the authority of the Langmead case it is, in my opinion, initially for the jury, or for the trial Judge if there is no jury, on an overview of all the circumstances to say whether the presumption arising from the recent possession of stolen goods supports a charge of stealing, robbery, break, enter and theft, etc., or only of possession of stolen goods.

At page 344, he recognized that the inference to be drawn from recent possession is only permissive, saying:

Even when the presumption that arises from the recent possession of stolen goods can be used the Crown is still left with the ultimate or general burden of proving its case beyond a reasonable doubt. The rule being that a Court may not must convict in the absence of any explanation.

and later,

By way of reiteration the principle that I glean from the authorities to which I have referred is that unexplained possession of recently stolen goods is evidence that may, depending on all the circumstances of any given case, establish the commission of any offence by which such were illegally obtained.

It is suggested that the implication to be drawn from this case, stemming from the use by Macdonald J.A. of the words, "depending on all the circumstances of any given case", is that unexplained recent possession alone is insufficient to support a guilty verdict. I would reject this view on the basis that it is contrary to the authorities which I have considered. There must, of course, be evidence that the goods were stolen and, where relevant, that a break‑in occurred. There must also be evidence of possession, of recency of possession, and evidence of the identity of the goods, all of which are present in the case at bar. There may be, and frequently will be, other evidence which may be relevant on the issue of guilt or innocence that must be considered by the jury, but where the unexplained recent possession is found, it alone allows‑‑but does not make mandatory‑‑a finding of guilt. In Russell v. R. (1983), 32 C.R. (3d) 307, the Nova Scotia Court of Appeal considered the question of whether the application of the doctrine of recent possession infringed the right to the presumption of innocence, under s. 11(d) of the Canadian Charter of Rights and Freedoms . This issue was not raised in this Court. The case has relevance to this case, however, because of the explanation of the nature of the inference given by Jones J.A., speaking for the Court, after reviewing many of the authorities mentioned in this judgment, he said, at p. 316:

These decisions make it abundantly clear that the inference arising from the unexplained possession of stolen goods is simply one of fact and does not alter the fundamental burden of proof on the Crown to establish guilt of the accused beyond a reasonable doubt. Viewed in that light the inference does not offend the presumption of innocence under the Charter of Rights and Freedoms.

Of interest is an annotation to this case by Don Stuart, appearing at p. 308 of the report.

On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.

The question which arises here is whether the unexplained recent possession of stolen goods, standing alone, will also warrant an inference of guilt of breaking and entering and theft of the goods under s. 306(1) (b) of the Criminal Code . It is my view that this question must be answered in favour of the Crown. This point was reviewed in this Court in R. v. Lovis; R. v. Moncini, supra. In that case, the accused were charged with two offences: robbery, and possession of a stolen automobile. In the automobile at the time of its theft were certain articles of personal property which were found in the possession of the accused after the robbery had taken place and the car had been used as the get‑away vehicle. Martland J.A., speaking for a unanimous full Court, dealt with this question commencing at p. 303. He quoted from Reference re Regina v. Coffin, supra, and, as well, the words of Pollock C.B. in the early English case of R. v. Exall, supra, at pp. 924‑27 F. & F., 851‑52 E.R., quoted above, which were specifically approved in Coffin, supra, by Kellock, Rand and Fauteux JJ., and supported by Kerwin and Taschereau JJ. in a separate concurring judgment. Martland J. said, at p. 305:

In the light of these statements as to what may be the effect of recent possession of stolen articles, not only in relation to a theft of the articles themselves, but also in relation to the evidence as to the commission of another crime, I do not think that it is a valid ground for upsetting the jury verdict because the trial judge may have stressed the requirements of s. 3(4) for establishing possession of the four articles to which he referred. Here, as in the Coffin reference, a rule relating to possession of certain articles is used to link the accused to pieces of evidence in respect of a crime in which their possession is not, otherwise, a material element.

In addition, see, as well, R. v. Langmead, supra, and R. v. Nickerson, supra.

I now turn to the case at bar. The trial judge was fully aware of the problem before him. After some preliminary comments on the credibility of the appellant's brother, he said:

Obviously, to make any conviction, I must be satisfied beyond a reasonable doubt on all of the evidence taken together. In this case I think there's no dispute that it stands or falls on the application of the Doctrine of Recent Possession, there being no direct evidence connecting this accused to the break and entries in question.

He then proceeded to make a finding of possession of the articles of property comprised in three of the charges. He observed that there was more than one piece of property from each of the houses in question found in the private locked room of the appellant, that there was positive identification of the property, and that some of the articles were in the same groupings or same containers as when stolen. He considered, as well, the appellant's reaction and behaviour on the arrival of the police, including his activity at the bedroom window, which he considered he should not overweigh but should not ignore. He concluded by saying:

I have considered the total absence of any kind of reasonable explanation, and I have reached the conclusion that, with respect to the 3 other charges, I am satisfied beyond a reasonable doubt of the guilt of the accused, and find that I can reach that conclusion without any concern in my own mind that I am embarking on a dangerous course in so doing.

In the Court of Appeal, Monnin C.J.M. and O'Sullivan J.A. agreed that the appeal should be dismissed. Philp J.A. dissented (see (1986), 39 Man. R. (2d) 122, at p. 123). Monnin C.J.M. in very short reasons expressed agreement with the trial judge, saying:

I am satisfied that on the evidence on the record Kroft, J. reached the proper conclusion and did not misdirect himself in any respect on any aspect of the case.

O'Sullivan J.A. also expressed agreement with Kroft J. in concluding his judgment in these words, at p. 128:

In my opinion, Kroft, J., applied the doctrine of recent possession realistically and accurately. While the time periods might be too long to warrant the description of "recent" if the goods had come from one house, the fact that goods were found from three houses all broken into as part of a scheme, raises the same presumption in this case as if the possession had been a matter of hours or days in another case.

Before reaching this conclusion, however, O'Sullivan J.A. said, at p. 125:

In my opinion, the doctrine of recent possession is that, where the doctrine applies, an accused may be found guilty of either theft or unlawful possession, even though it remains quite impossible to say of which he is guilty. The law is that where a jury is in no doubt that the accused is guilty of one or the other of these offences, the jury may convict even though it has reasonable doubt as to which to convict of.

While I am in agreement with the result reached by the majority, I am unable to agree with O'Sullivan J.A.'s statement of the doctrine of recent possession. In my view, it is erroneous and based on a misunderstanding of some of the judgments which he considered in reaching his conclusion. Where a jury is unsure as to the guilt of an accused on one or other of two alternative offences, it cannot be satisfied beyond a reasonable doubt on either offence and an acquittal will result.

In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may‑‑but not must‑‑draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.

Upon all the facts in this case it is my opinion, in agreement with that of Monnin J.A., that the trial judge correctly applied the doctrine and I would dismiss the appeal.

The following are the reasons delivered by

Wilson J. (dissenting)‑‑The issue in this appeal is whether it is open to a trial judge to convict an accused of the offence of break, enter and theft under s. 306(1)(b) of the Criminal Code, R.S.C. 1970, c. C‑34 when the only evidence connecting the accused to the offence is possession by the accused of the recently stolen goods. In order to settle this issue the Court must examine what has been referred to by some as the doctrine of recent possession.

I The Facts

There were three house break‑ins in Winnipeg during the summer of 1982 in each of which the owners of the burgled houses had recently died and the burglaries took place during the time of the pre‑advertised funeral service. The break‑ins occurred on June 1, June 6‑8 and July 11, 1982.

On August 27, 1982 Barry Kowlyk, the accused's brother, was arrested in the act of committing a theft. During questioning by the investigating officers Barry Kowlyk admitted that he committed the three break and enters in question. He then led the officers to a house that he shared with the accused. Here the officers found seventy‑six items stolen during the break and enters described above. On entering the house with the police Barry Kowlyk yelled out "Wake up Ray. The police are here. They got us. It's all over".

The accused was found in his bedroom. The door was closed and the police officer demanded that the accused come out. The accused stated that he would do so after he got dressed. Five minutes later the accused emerged from his bedroom. A police officer who had been stationed outside testified that the accused had opened the curtains, unlocked the window and attempted to lift the window, but upon seeing the officer had stopped these activities. Fourteen of the stolen items were found in the accused's bedroom. The items were grouped according to the separate break‑ins.

The accused was arrested and charged with three counts of break, enter and theft. When questioned by the police about his involvement in the burglaries the accused replied "All you got me for is possession. I'm not saying anything". He made no further comment and did not testify at his trial. He was convicted of all three counts of break, enter and theft by Kroft J. in the Manitoba Court of Queen's Bench and was sentenced to thirty months' incarceration on each count to be served concurrently. These convictions were upheld by the Manitoba Court of Appeal (Philp J.A. dissenting): see (1986), 39 Man. R. (2d) 122.

II The Courts Below

Court of Queen's Bench

Kroft J. began by noting that no weight should be given to the evidence of Barry Kowlyk, the accused's brother. He was simply not a credible witness. He noted also that Barry Kowlyk was a thief and that he operated, at least on some occasions, without his brother. Kroft J. made it clear that his approach to the case was grounded in "the doctrine of recent possession". He stated:

In this case I think there's no dispute that it stands or falls on the application of the Doctrine of Recent Possession, there being no direct evidence connecting this accused to the break and entries in question.

In applying the doctrine of recent possession the trial judge noted that significant quantities of stolen goods were found in the accused's bedroom. He noted that the goods found there were not isolated items but rather groups of objects from the same houses. He also "considered the accused's reaction on his arrest, his comments and his activity at the window". Finally, he considered "the total absence of any kind of reasonable explanation" from the accused as to how the stolen goods found their way into his bedroom.

For these reasons Kroft J. convicted the accused of the three counts of break, enter and theft.

Court of Appeal

The Court of Appeal (Philp J.A. dissenting) dismissed the appeal. Monnin C.J.M., in a short judgment, simply stated that he would uphold the trial decision for the reasons given by the trial judge. O'Sullivan J.A. agreed with Monnin C.J.M. that the appeal should be dismissed. He noted that it was admitted by both sides that the accused was in possession of stolen property knowing that it was stolen. He pointed out, however, that the accused was not charged with possession but with break, enter and theft. Without the aid of the doctrine of recent possession, O'Sullivan J.A. stated, the accused could not be convicted of this offence. As O'Sullivan J.A. notes, at p. 124, "it is quite impossible to say in this case beyond doubt whether the accused was a thief or only a possessor".

O'Sullivan J.A. concluded, however, that the accused was properly convicted of break, enter and theft. He reached this conclusion by applying the doctrine of recent possession. As O'Sullivan J.A. notes, at p. 125:

In my opinion, the doctrine of recent possession is that, where the doctrine applies, an accused may be found guilty of either theft or unlawful possession, even though it remains quite impossible to say of which he is guilty. The law is that where a jury is in no doubt that the accused is guilty of one or the other of these offences, the jury may convict even though it has reasonable doubt as to which to convict of.

O'Sullivan J.A. cites the old case of R. v. Langmead (1864), Le. & Ca. 427, 169 E.R. 1459, 9 Cox C.C. 464, (hereinafter cited to 9 Cox C.C.) as laying down authoritatively that "where unexplained recent possession exists, it is sufficient to convict either of theft (or break and enter and theft) or of unlawful possession even though it is quite impossible to say which crime it was that was committed by the accused".

Philp J.A. dissented. He agreed that the "so called `doctrine' or `principle' of recent possession arises in the circumstances of this appeal". He took issue, however, with the trial judge and the majority of the Court of Appeal as to the effect of the doctrine. He reviewed the cases and texts and concluded that the effect of the doctrine was well summed up in Phipson on Evidence, 13th ed., para. 4‑11, at p. 49, as follows:

For example, on charges of theft or handling, proof of recent possession of the stolen property by the accused, if unexplained or if, though explained the explanation is disbelieved, raises a presumption of fact (not of law) that he is the thief or a handler (according to the circumstances) and the jury may (though not must), providing they are satisfied that the other elements of the particular offence are proved, convict. It is not for the accused to prove honest dealing with the property, but for the prosecution to prove the reverse. Thus if the explanation given is one which the jury think may be true, though they are not convinced that it is, they must acquit, for the burden of proof remains on the prosecution throughout and will not have been discharged.

Applying the doctrine to the facts of this case, Philp J.A. asked whether "in all of the circumstances it can be said beyond doubt that the accused committed the much more serious offences of break, enter and theft, or aided or abetted in their commission". He answered this question in the negative stating, at pp. l35‑36:

Apart from suspicion, conjecture and speculation (and the confession of the brother, not evidence against the accused, implicating the accused), there are no circumstances connecting the accused to the burglaries that had occurred over two months prior to his arrest. He was not seen at or near the scenes. Another person, the brother of the accused, has confessed his guilt and testified that he was the sole participant in the offences. The trial judge found the brother not to be a credible witness, but he also made the finding that the brother had committed other offences without the participation of the accused. The trial judge said:

"There is, however, some evidence respecting Barry Kowlyk that do take as fact and that does bear to some extent on my decision. I find that he, himself, was a thief, that he operated, at least on some occasions, without his brother, and that he himself had taken stolen goods into his possession."

I conclude that the trial judge, in applying the rule, did so on the basis that the accused's unexplained possession of the stolen goods was prima facie evidence of his participation in the three offences of break, enter and theft. In my view, it was wrong to draw such an inference in the absence of any evidence connecting the accused with the commission of those offences.

Because of my understanding of the effect and application of the rule respecting possession of recently stolen goods, I feel bound to allow the appeal of the accused and to acquit him. I must do so notwithstanding the fact that the accused was undoubtedly guilty of (but not charged with) the offence of possession of goods obtained by crime.

III The Issue

It is clear that this appeal turns upon the legal significance to be attributed to possession of recently stolen property. Recent possession has been called variously a legal doctrine, a presumption, a legal principle, and a common sense rule of evidence. Its roots are relatively ancient. It was relied on as early as 1830 in Clement's Case (1830), 1 Lewin 113, 168 E.R. 980, where Clement was convicted of horse stealing. The case report for Clement's Case reads as follows:

Carlisle Sp. Assizes, 1830.

Clement's Case.

(Possession in Scotland evidence of stealing in England.)

Prisoner was indicted for horse‑stealing. The evidence was, that he had the horse in his possession in Kirkcud­bright, three days after it had been stolen, in the county of Cumberland.

Parke, J., held this to be sufficient evidence of a stealing by the prisoner in Cumberland.

It is difficult to assess the correct meaning to be attributed to this judgment. The paucity of detail relating to the circumstances surrounding the case prevent one from determining the exact use being made of the fact of recent possession. However, if this case is authority for the proposition that recent possession in the absence of any other incriminating circumstances can found a conviction for theft, it has been eclipsed by later authority.

An early example of this later authority is R. v. Hall (1845), 1 Cox C.C. 231. Here the evidence established that the prisoner had had access to the premises of the prosecutor and that the prosecutor's shirt had been found in the prisoner's possession. Pollock C.B. (Coleridge J. concurring) held that in these circumstances the jury should be directed to acquit. Pollock C.B. stated:

It will be pushing the doctrine of possession rather too far to hold this sufficient. There is a certain period, after which I should think it very unfair to assume theft from mere possession, even where the property is proved aliunde to have been stolen.

Thus, the mere fact of possession of stolen goods can constitute proof of theft only when coupled with surrounding circumstances such as a sufficient temporal connection between the theft and the possession.

This point was elaborated in Coleridge J.'s charge to the jury in Cockin's Case (1836), 2 Lewin 235, 168 E.R. 1139. In this case the prisoner was indicted for stealing two sacks. The evidence was that the sacks were stolen in February and were found in the prisoner's possession in March, about twenty days later. Coleridge J. charged the jury as follows:

If I was now to lose my watch, and in a few minutes it was to be found on the person of one of you, it would afford the strongest ground for presuming that you had stolen it; but if a month hence it were to be found in your possession, the presumption of your having stolen it would be greatly weakened, because stolen property usually passes through many hands.

This direction underlines two important points. It indicates that recent possession is strongly probative of theft only when the recency of the possession negates the possibility that the property was stolen by a third party and transferred to the defendant by the thief. More generally it emphasizes the need to look to all the surrounding circumstances to determine the legal significance of the fact of recent possession.

In R. v. Langmead, supra, the need to examine recent possession in the context of all the surrounding circumstances was stressed. Here Langmead was convicted of feloniously receiving sheep that he knew were stolen. Langmead argued that the jury should have been directed that they could not convict on the felonious receiving count because, Langmead contended, the evidence proved no more than unexplained recent possession of stolen sheep. The Court of Criminal Appeal held that there was enough evidence to justify leaving the question of guilt to the jury. The Court's comments on the implications of recent possession of stolen goods are germane to the present discussion.

Pollock C.B. characterized the fact that the accused was found in possession of very recently stolen sheep as evidence of either theft or of receiving, depending on the surrounding circumstances. Obviously some circumstances will rule out the possibility of receiving. Pollock C.B. concluded, however, that that was not the case here. He said at p. 468:

In the present case, I think that the evidence of receiving was more cogent than that of stealing. It is very likely that the prisoner sent the two boys to drive the sheep, and that they had innocently taken them from some one else who had stolen them from the common.

Blackburn J. came to a very similar conclusion in a brief judgment that is of central importance to an understanding of the legal significance of recent possession. He said at p. 468:

I am of the same opinion. As a proposition of law, there is no presumption that recent possession points more to stealing than receiving. 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. In the present case, I believe that the jury have drawn the right conclusion.

This approach was endorsed in R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850. The facts of this case appear in the judgment as follows, at p. 922 F. & F., 850 E.R.:

On the night of the 21st of December last, the premises were broken open, and some time after eleven that night, the money and articles mentioned stolen.

The prisoners were seen together on that night at a public‑house not far off, and they were seen together early in the morning.

In the morning, two of them, Edwards and Exall, were apprehended together on suspicion; and on one of them, Exall, the watch was found. The other prisoner, Skelton, was taken some time afterwards, and upon him was found a piece of money, identified as part of the money stolen, and which he said he had from Edwards, which Edwards did not deny.

Pollock C.B. had the following comments to make to the jury on the nature of the law relating to recent possession, at pp. 924‑28 F. & F., 851‑53 E.R.:

The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery.

And so it is of any crime to which the robbery was incident, or with which it was connected, as burglary, arson, or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found committed that other crime.

The law is, that if, recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called up to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable. The strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way. And juries can only judge of matters, with reference to their knowledge and experience of the ordinary affairs of life.

Thus, for instance (to put the present case), if the property were the produce of a burglary, then the possession of it, soon after the burglary, is some evidence that the person in whose possession it is found was a party to the burglary. For, at all events, he must have received it from one who was a party to it; and this is strong evidence that he was privy to it, and some evidence that he was a party to it. Whether or not he was so, must be judged of from all the other circumstances of the case. [Emphasis added.]

Applying this approach to the facts of the case, Pollock C.B. suggested, at p. 929 F. & F., 853 E.R., that the fact of recent possession should be considered simply as a piece of circumstantial evidence to be considered along with all the other circumstances:

It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence ‑‑ there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.

On the whole the judgment seems to permit a rather modest inference to be drawn from recent possession of stolen goods. If the possession is so recent that it seems improbable that the person could have got the property other than through stealing it, the inference that the possessor is also the thief is strong. If, however, there is no such close temporal nexus the inference is weak. In any event, the fact of recent possession is merely one piece of evidence that must be assessed together with all the other circumstances.

The writers seem to agree that recent possession of stolen goods is best viewed as a fact from which certain inferences can be drawn rather than as a legal presumption or doctrine. As Delisle puts it in Evidence, Principles and Problems (1984), at p. 79:

As the factual situation of theft and possession regularly occurred and the practice of drawing the inference became standard, the courts, perhaps unfortunately, began speaking of the "presumption" which arises from the possession of recently stolen goods; from there it was a short step to talk of the "doctrine" of recent possession. This is unfortunate as the clothing of legal language often serves to distract from the simplicity and common sense of the proposition and may place too heavy a burden on the accused. [Emphasis added.]

A similar point is made by McWilliams in Canadian Criminal Evidence, 2nd ed., (1984), where he says of the doctrine of recent possession at pp. 81‑82: "It is a conclusion of fact invoked by common sense and not by any doctrine or presumption".

Wigmore agrees. At page 417 of Wigmore on Evidence, 3rd ed., vol. 9, (1940), the author states that "One of the most troublesome and fruitless controversies has been whether under certain circumstances the accused's possession of stolen goods raises a presumption that he was the thief". After a careful study of the English and American case law Wigmore concludes that the best view is that no such presumption exists; "...the suffi­ciency of the evidence to go to the jury will usually depend on the variant circumstances of each case" (p. 422). Thus, the consensus of the writers seems to be that recent possession of stolen property is a fact from which the inference of theft may be drawn. The strength of this inference will depend on all the surrounding circumstances of the particular case.

The Canadian case law is largely in conformity with the position taken by the English courts and the writers. The Supreme Court of Canada has consistently taken the position that the legal significance of recent possession was correctly stated by Lord Reading in R. v. Schama and Abramovitch (1914), 11 Cr. App. R. 45, at p. 49 (see Richler v. The King, [1939] S.C.R. 101; Ungaro v. The King, [1950] S.C.R. 430; Graham v. The Queen, [1959] S.C.R. 652; Tremblay v. La Reine, [1969] S.C.R. 431; R. v. Graham, [1974] S.C.R. 206, and R. v. Newton, [1977] 1 S.C.R. 399). In that case Lord Reading gave the following instruction to the jury:

"Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the good had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. That onus never changes, it always rests on the prosecution. That is the law; the Court is not pronouncing new law, but is merely re‑ stating it, and it is hoped that this restatement may be of assistance to those who preside at the trial of such cases." [Emphasis added.]

The fact that recent possession entitles, but does not compel, a jury to find the accused guilty of the offence charged is important. It makes it clear that the jury must consider the fact of recent possession in conjunction with all the other relevant circumstances. This conclusion is not surprising. Lord Reading was, after all, simply re‑stating the existing English common law position.

It would appear, therefore, that in both English and Canadian law recent possession of stolen goods does not give rise to a legal presumption of guilt of theft or of break, enter and theft. Rather it constitutes a material fact from which an inference of guilt of the more serious offence can be drawn. But the strength of the inference will depend on the surrounding circumstances. This leaves open the issue as to whether such an inference can be drawn when there is no other evidence connecting the accused to the more serious offence.

The difficulty in resolving this issue flows from the fact that the typical case in which recent possession is invoked usually involves other evidence connecting the accused to the offence charged. Indeed, the annotation to Exall, supra, suggests "The question never did and never could arise in a dry abstract form, and there are always circumstances to aid or rebut the presumption arising from possession" (p. 925 F. & F., 852 E.R.) It is certainly true that it will be rare for the question to arise in the "abstract form". As we have already seen, the temporal connection between the possession and the theft often constitutes an additional fact supporting the inference that the possessor was also the thief. Assuming, however, that the only evidence connecting the accused to the theft was his possession of the stolen goods, would this be sufficient to justify his conviction of theft?

Some support for the position that the accused cannot be convicted of theft in these circumstances can be draw from the early cases examined above. As Blackburn J. concluded in Langmead, supra, recent possession of stolen goods provides evidence that the accused has "come by [the property] dishonestly...but it depends on the surrounding circumstances whether he is guilty of receiving or stealing". It would seem to follow from this that, if there are no further circumstances connecting the accused to the theft, then this offence is not made out against him. This conclusion seems particularly compelling in the Canadian context where there is an offence specifically covering simple possession of stolen goods.

This conclusion is bolstered by dicta in R. v. Nickerson (1977), 37 C.C.C. (2d) 337 (N.S.C.A.) Here Macdonald J.A. explained the effect of the doctrine of recent possession at p. 343 as follows:

On the authority of the Langmead case it is, in my opinion, initially for the jury, or for the trial Judge if there is no jury, on an overview of all the circumstances to say whether the presumption arising from the recent possession of stolen goods supports a charge of stealing, robbery, break, enter and theft, etc., or only of possession of stolen goods.

The implication here is that recent possession alone is not enough to sustain a guilty verdict of the more serious offence; it only becomes sufficient when combined with inculpating surrounding circumstances.

Nickerson itself was not a case, however, where the fact of recent possession of stolen goods alone was being relied on to found a conviction of break, enter and theft. The facts of the case are stated in the judgment as follows, at p. 344:

In the present case there is no question that a trailer parked on the lot of Eastern Transport Limited was broken into some time between 11:40 p.m., on May 24, 1977, and 12:15 a.m., on May 25, 1977, and four cartons of cigarettes stolen therefrom. Likewise there is no question that the appellant was found in possession of one of such cartons "on the early morning of May 25th" at a location approximately one to one and one‑half miles from the location of the trailer. Constable Gunn of the Halifax City Police Force, who apprehended the appellant, testified that he had observed the appellant carrying the carton of cigarettes on his shoulder, that: . . .

Thus, the accused came very close to being caught red‑handed. He was close to the scene of the break and enter both in time and place and he had a carton of the stolen cigarettes on his shoulder. Accordingly, although the fact of recent possession of stolen goods would not by itself have justified a conviction of break, enter and theft, it did justify a conviction when coupled with the surrounding circumstances.

This approach seems to be in accordance with the case law and with the structure of the Criminal Code provisions relating to theft. The fact of recent possession of stolen goods may, when coupled with other inculpating circumstances, justify convicting the possessor of the offence by which the goods were illegally obtained. Absent these additional inculpating circumstances, only a conviction for possession of stolen goods (s. 312 of the Criminal Code) is justified.

IV Applying the Rule

In the present case the trial judge stated that, absent the doctrine of recent possession, he would not have been able to convict the accused of break, enter and theft. By an application of the doctrine, however, the trial judge found that he was able to convict Kowlyk of break, enter and theft despite the fact that there was no evidence to indicate whether the accused had committed that offence or whether he had merely committed the offence of possession.

The majority of the Manitoba Court of Appeal upheld Kowlyk's conviction. Monnin C.J.M. simply stated that he was satisfied that the trial judge "reached the proper conclusion and did not misdirect himself in any respect on any aspect of the case". O'Sullivan J.A. also believed that the appeal should be dismissed. He held explicitly that the conviction was only possible because of the doctrine of recent possession, stating at pp. 124‑25:

I think it is quite impossible to say in this case beyond doubt whether the accused was a thief or only a possessor.

...

In my opinion, the doctrine of recent possession is that, where the doctrine applies, an accused may be found guilty of either theft or unlawful possession, even though it remains quite impossible to say of which he is guilty. The law is that where a jury is in no doubt that the accused is guilty of one or the other of these offences, the jury may convict even though it has reasonable doubt as to which to convict of. [Emphasis added.]

This characterization of the doctrine of recent possession, explicit in O'Sullivan J.A.'s judgment and implicit in those of the trial judge and of Monnin C.J.M., constitutes reversible error.

The case law indicates that the fact of recent possession entitles a jury to enter a verdict of guilty of the offence of break, enter and theft if the circumstances of the case establish guilt beyond a reasonable doubt. The cases do not stand for the proposition that the fact of recent possession allows a conviction for break, enter and theft where it is "quite impossible" (to use the words of O'Sullivan J.A.) to determine whether the accused committed the offence or not.

V Conclusion

In the present appeal there is no evidence connecting the accused to the break, enter and theft other than his possession of the stolen goods. This by itself cannot found a conviction for the more serious offence. I would therefore allow the appeal, set aside the judgment of the Court of Appeal and quash the accused's conviction.