Zanini v. The Queen

J.:-The appellant, Bruno Zanini, was convicted under s. 295(1) of the Criminal Code on a charge of unlawful possession of housebreaking instruments. The Court of Appeal' dismissed the appeal. This Court granted leave to appeal on two questions of law:

The facts are that on December 20, 1963, the appellant drove a car to 780 Spadina Road, Toronto. He had with him two passengers, Bailey and Hudson. Bailey and Hudson left the car, entered a house at 780 Spadina Road by forcing the back door with a screwdriver. The police arrested them as they came out of the back door and found a screwdriver and a flashlight on one of the men.

Zanini was waiting for the men with the engine of the car running. He denied knowledge of the two other men. The car belonged to one of these men, and the police a week or ten days before had observed the three men driving in the vicinity of the house and observing the house. All three were charged under s. 292(1) (b) with breaking and entering and stealing four fifty-cent pieces, the property of the owner of the house, one Dr. Arnold Iscove, and they were also charged under s. 295(1) with possession of COUR SUPRtME DU CANADA housebreaking instruments. Bailey and Hudson pleaded guilty to the charge of breaking and entering. The charge against them of possession was withdrawn.

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Zanini pleaded not guilty to both charges. He was Judson J.

acquitted of the charge of breaking and entering and stealing on a directed verdict, since the four fifty-cent coins could not be identified as being the property of Dr. Iscove. On the charge of possession of housebreaking instruments, he was found guilty. The learned trial judge instructed the jury that if they found that the appellant had formed a common intention with the other two men to effect an unlawful purpose, that is to say, break into the house, then they could find that he knew or ought to have known that as a result of such common intention he knew or ought to have known that the other men were in possession of instruments of housebreaking and therefore under s. 21 of the Criminal Code, the jury could find that the appellant was in possession of a screwdriver found on one of the men who entered the house.

Zanini now submits that, since his confederates were not convicted of the offence of possession, he could not be convicted of possession because the Crown could not appeal to s. 21(2) of the Criminal Code and was obliged to rely solely upon s. 3(4). Section 21(2) reads:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Section 3(4) reads:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

The Court of Appeal correctly rejected this submission. Under s. 21(2) of the Criminal Code, Zanini was a party R.C..

to the commission of the offence of possession of housebreaking instruments. The judge's instruction to the jury given pursuant to s. 21(2) of the Criminal Code was correct. The fact that the charge was withdrawn against the two active principals does not affect the right of the Crown to proceed against this accused. There is no requirement in s. 21(2) of the Criminal Code that the active participant or participants must have been convicted of the offence. The question is whether Zanini committed the offence, i.e. the possession of instruments for housebreaking. It cannot be disputed that one of the two confederates was in fact in possession of instruments for housebreaking. In addition, it was established (and all the facts were agreed upon for the purpose of this appeal and in the Court of Appeal) that the appellant had formed an intention in common with the other two men to break and enter and assist each other for this purpose. There is no principle of law that unless there is a conviction of the confederates for the possession offence, the appellant cannot be convicted for that offence. On the second question of law on which leave to appeal was given, in my opinion the Court of Appeal was correct in maintaining that s. 21(2) of the Code may be applied where the facts warrant the inference that the accused ought to have known that the commission of the offence, i.e., possession of housebreaking instruments would be the probable consequence of carrying out the common purpose. The Crown is not limited to reliance on the provisions of s. 3(4) of the Code above quoted. The very point was decided by the Court of Appeal of British Columbia in Rex v. Harris'. The Ontario Court of Appeal in this case followed the reasoning of the British Columbia Court of Appeal, correctly in my opinion.

I now return to the second branch of the first point of law that s. 21(2) cannot support the conviction for the possession offence when there was no conviction of the appellant for breaking and entering. I have already said that the acquittal on the charge of breaking and entering and stealing four 50-cent pieces, the property of Arnold Iscove, was the result of a directed verdict because the owner of the premises entered could not identify the coins. This acquittal does not decide in favour of the accused any issue in the possession charge that would be inconsist-