Supreme Court Judgments

Supreme Court of Canada

Côté v. R., [1975] 1 S.C.R. 303

Date: 1974-04-02

Louis Côté Appellant;

and

Her Majesty The Queen Respondent.

1972: October 26; 1974: April 2.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Theft—Imprisonment—Continuous possession—Subsequent conviction for unlawful possession—Plea of “autrefois convict”—Whether there were two offences—Meaning of words “Every one”—Criminal Code, R.S.C. 1970, c. C-34 ss. 3(4), 302(d), 312(1), 536, 537(1)(a), 605(1) and 618(2)—Criminal Code, R.S.C. 1927, c. 36, s. 399—Interpretation Act, R.S.C. 1970, c. I-23, s. 36(f).

Appellant was convicted of having, while armed, stolen a sum of money, securities and documents, in breach of s. 302(d) of the Criminal Code. He served his sentence and, after being released, was found in possession of a part of the securities stolen by him three years previously. He was charged with unlawful possession under s. 312(1) of the Criminal Code and he pleaded autrefois convict. The trial Judge held that the accused’s possession was in continuation of that acquired by him by the theft, and that after being convicted of theft he could not be convicted of unlawful possession of the same article. The Court of Appeal quashed the acquittal and ordered a new trial. The appellant then appealed to this Court.

Held (Laskin J. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott and Judson JJ.: The text of s. 312(1) of the Criminal Code no longer speaks of receiving or retaining. Relying strictly on this text, the offence consists of having anything in one’s possession knowing that the thing was obtained by the commission of an offence punishable by indictment, or which would be so punishable, if committed in Canada. As provided by s. 36(f) of the Interpretation Act, this new enactment is to be held to operate as new law, and is not to be construed and have effect as declaratory of the law as contained in the former enactment. The indefinite pronoun “every one” means “anyone”, “whoever”. So far as rules of interpretation are concerned, there is no bar to a thief who has been convicted and is then found in posses-

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sion of the thing stolen being, like any other person, convicted of unlawful possession. One cannot validly maintain, on the one hand, that continuation of the thief’s possession, whatever its duration, is always a continuation of the act of theft, and, on the other hand, that at the very time and place of the theft the thief commits the offence of unlawful possession dealt with in s. 312(1).

Per Martland and Pigeon JJ.: When a subject-matter of an offence is a continuous state of affairs such as possession, a first conviction does not bar a second charge if the state of affairs subsequently continues in existence. This is then a new violation of the law.

Per Ritchie J.: The circumstances of this case disclose a clear severance in continuity between the offence of armed robbery and that of possession contrary to s. 312(1). In the result these were two separate offences.

Per Laskin J. dissenting: Possession cannot become the basis of a conviction of a separate offence merely because the charge of that offence relates the possession to a different date and to a different place than the earlier charge of robbery upon which the accused was convicted. To convict the accused of unlawful possession in the present case is to convict him because he was able to conceal the fruits of his robbery after the event and to resist disclosing their whereabouts when he was arrested on the robbery charge. This is not an offence defined in the Criminal Code. Unlawful possession under s. 312(1) is a different offence from receiving or retaining under the old Code. However, the changes in the Criminal Code did not alter the force of the legal principle that precluded a conviction of the thief, who has been in continuous possession, of both theft and unlawful possession. Obtaining possession of property is an essential ingredient of the offence of theft. After the theft is completed, the continued possession by the thief is merely the continuance of the act of theft. Further, the principle of res judicata suffices here to preclude successive prosecutions for different offences with a substantial common element where there has been a conviction on the first prosecution. Just as a conviction of robbery would preclude a second conviction of the charge of unlawful possession at the same trial, so does the conviction of robbery here preclude a succeeding conviction of unlawful possession.

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[Regina v. Fennell (1961), 130 C.C.C. 66; Regina v. Hogg, [1958] O.R. 723; Regina v. St. Jean (1971), 15 C.R.n.s. 194; Regina v. Siggins, [1960] O.R. 284; 32 C.R. 306; Regina v. Van Dorn (1957), 25 C.R. 151; Milanovich v. U.S. (1960), 365 U.S. 551; People v. Tatum (1962), 209 C.A. (2d) 179; People v. Williams (1967), 253 C.A. (2d) 752, distinguished; Dapper v. Municipal Court San Diego Judicial District, 81 Cal. Rptr. 340; Rex v. Quon, [1948] S.C.R. 508; Clay v. The King, [1952] 1 S.C.R. 170; People v. Daghita (1950), 93 N.E. (2d) 649; Block v. U.S. (1919), 261 F. 321; cert. denied (1920), 253 U.S. 484, referred to.]

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, quashing the acquittal. Appeal dismissed, Laskin J. dissenting.

G. Gingras, for the appellant.

M.C. Laniel, Q.C., for the respondent.

The judgment of Fauteux C.J. and Abbott and Judson JJ. was delivered by

THE CHIEF JUSTICE—In 1966 appellant Louis Côté was convicted of having, inter alia, in the City of Laval, district of Montreal, on or about December 18, 1965, being armed with a revolver, stolen a sum of money, bonds and documents, the whole amounting to about $723,300, in breach of the provisions of s. 288(2) of the Criminal Code—now s. 302(d). For this offence Côté was sentenced to three years and four months’ imprisonment, and served his sentence.

Nearly three years after the date of this theft, on November 26, 1968, Côté was found, at Ste. Béatrix, district of Joliette, in possession of bonds and debentures which, admittedly, were part of the documents and bonds he was convicted of having stolen in 1966. In fact, the officers of the Quebec Police Force who, on the day in question, had gone to Ste. Béatrix and had proceeded to a piece of land owned by Côté’s mother, saw Côté there, who was heading towards his car. After watching him for a

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time, the officers approached him and found in his car a polythene bag containing part of the stolen property; they subsequently discovered another part in a padlocked suitcase concealed in a barrel in the ground. Côté had the key to the padlock of the suitcase on his person. He was arrested and subsequently accused on various charges of unlawful possession under the provisions of s. 296 Cr. C.—now s. 312(1). At his trial, presided by Mr. Justice Lagarde of the Court of Sessions of the Peace, Côté raised the special defence of autrefois convict. With the consent of the prosecution and the defence, depositions of the witnesses heard in 1966 on the theft charge were then produced as evidence, to make proof as if those witnesses had again testified on the charge of unlawful possession, and the prosecution further submitted on the charge evidence which, according to the trial judge, showed, in particular, that in the period of about three years elapsed between the day of the theft in 1965 and the day on which appellant was found in possession of the stolen effects, the latter had had them continually in his possession within the meaning of s. 3(4) of the Criminal Code. However, the judge acquitted appellant on a point of law, which he summarized as follows:

[TRANSLATION] …an accused who is convicted of theft cannot be convicted of unlawful possession of the same articles under s. 296, and vice versa. Indeed, this section implies that the accused received an article and retained it knowing that it was stolen. Accordingly, the section is concerned with the handing over of an article which was in the possession of someone else.

The Crown, considering that this reasoning was incorrect at law, appealed from the acquittal to the Court of Appeal, as it is entitled to do under s. 584(1)Cr. C.—now s. 605(1).

The Court of Appeal, consisting of Hyde, Taschereau and Salvas JJ.A., unanimously allowed the appeal and ordered a new trial. The reasons of the Court were stated by Mr. Justice Salvas as follows:

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[TRANSLATION] I shall not discuss the question of whether the evidence established that Côté’s possession was continuous from the time of theft. That is a question of fact with which we are not concerned in these appeals, and I would add that it is not significant in my opinion.

With all due respect, I cannot accept the reasoning and conclusion of the learned judge.

It should first be noted that the offence of possession (Cr. C. 296) is not included in that of robbery (Cr. C. 269 and 288).

1962 S.C.R. p. 229 re: Fergusson v. R.

The wording of s. 296 (now 312) of the present Criminal Code is quite different from that of s. 399 of the former Code (See also the English version of these sections). It is clear that the legislator changed the law creating the offence of possession (1971 C.A. 73, re: R. v. St. Jean). It is no longer possible to hold that, in principle, a receiver of stolen goods cannot be the same person who stole them. On the contrary, I think the general wording “every one…who has anything in his possession…” includes the person who steals the thing, and accordingly that, depending on the circumstances, the person who steals a thing may be convicted of possessing it. He may not be convicted of theft and possession in every case. Thus, to take a simple example, I think a thief found in possession of stolen goods at the time and place of the theft may not be convicted of theft and of possession. In such a case his possession is that of a thief, of one who “takes…anything” (Cr. C. 269, now 283). It is part of the act of theft itself. On this point each specific case now raises merely a question of fact, as to whether the possession of the thief who is also charged with criminal possession is the possession acquired by him in the very act of perpetrating the theft. In solving this problem, circumstances of time and place in particular, should be taken into account (25 C.R. p. 151 re R. v. Van Dorn).

In the case at bar Côté stole the property in the City of Laval, district of Montreal, on December 18, 1965, and he is charged with having had a part of it in his possession some three years later, on November 26, 1968, in Ste. Béatrix, district of Joliette. In these circumstances I think that the Crown was legally justified in laying the charges at bar against Côté, that the special defence of autrefois convict presented by Côté should have been dismissed, that Côté should have been required to plead to the merits of the charge and, if necessary, have his trial (Cr. C. 516(4)).

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Relying on the provisions of s. 597(2) Cr. C.—now s. 618(2)—which permit a person whose acquittal has been set aside by the Court of Appeal to appeal on a question of law to the Supreme Court, appellant has appealed to this Court.

The question of law at issue is thus as to whether appellant, who had already been convicted of robbery, could in the particular circumstances of the case be convicted on a charge of unlawful possession of the effects which were stolen by him, and which remained continuously in his possession for a period of some three years. It is thus necessary to interpret the provisions of s. 296 or, to put it another way, to define the nature of the offence described therein, and to consider the question at issue in the light of that interpretation and of the circumstances of the case.

Section 296, as well as what is now s. 312(1), reads as follows:

296. Every one commits an offence who has anything in his possession knowing that it was obtained

(a) by the commission in Canada of an offence punishable by indictment, or

(b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

The provisions of this section were incorporated into the criminal law of Canada by the Act respecting the Criminal Law, 1953-54 (Can.), c. 51. Section 745 of that Act, an act which has Criminal Code as its short title and which was brought into force on April 1, 1955, repealed the previous Criminal Code, c. 36 of the Revised Statutes of Canada 1927, and consequently s. 399 of that code, which read 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. R.S. c. 146, s. 399.

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The terms of this section of the former Code thus provided for two separate offences, receiving and retaining.

The following should be pointed out at this stage:—prior to the incorporation of the offence of retaining into our criminal law, by the 1892 Criminal Code, c. 28, s. 34, we knew only of the offence of receiving, a situation which, moreover, is still the case in England. When the provisions of s. 399 of the former Code were in force, the weight of our case law was to the effect that a person could not be convicted, with respect to the same thing, both of (i) theft and receiving, because the thief could not receive from himself, (ii) theft and retaining, because retaining implies that good faith exists at the time the stolen property is received, and (iii) receiving and retaining, because a receiver is in bad faith as soon as he receives the stolen property, which is not true in the case of retaining. In short, theft on the one hand, and receiving or retaining on the other hand, were mutually exclusive offences, and this was also true of the offences of retaining and receiving, as compared with each other.

The text of s. 296 above cited, which replaces that of s. 399 in the former Code, no longer speaks of receiving or retaining. Indeed, relying strictly on the text, the offence consists of having anything in one’s possession knowing that the thing was obtained by the commission of an offence punishable by indictment, or which would be so punishable if committed in Canada. The provisions of the new enactment are thus no longer substantively the same as those of its predecessor. Accordingly, as provided by s. 36(f) of the Interpretation Act, R.S.C. 1970, c. I-23, the new enactment is to be held to operate as new law, and is not to be construed and have effect as declaratory of the law as contained in the former enactment. This is especially true as it is impossible to conceive that an enactment which literally described only one offence—unlawful possession—could

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implicitly as well as expressly combine two offences—receiving and retaining—which by their very nature are mutually exclusive. The new enactment is clear and unambiguous. It must therefore be construed in accordance with the ordinary meaning of the words used, as required by the first, most basic rule of interpretation. The indefinite pronoun “quiconque” (every one) at the beginning of the sentence means, as is indicated in the Petit Robert, dictionnaire de la langue française, among other sources, “toute personne…” (anyone), “n’importe qui…” (whoever). It follows that so far as rules of interpretation are concerned, there is now no bar to a thief who has been convicted and is then found in possession of the thing stolen being, in theory, in certain circumstances, and like any other person, convicted of unlawful possession. The fact that his possession is a common ingredient of both offences is no reason to exclude or ignore what is actually the crucial factor distinguishing one from the other, and is of the essence of their respective nature. In the commission of theft this crucial characteristic consists in the fact of the taking or in the fact of the conversion or constructive taking, two facts having a defined basis in time and place. In the case of unlawful possession this crucial characteristic consists in the fact that the offence can chronologically only be committed after that of theft, and that it is the guilty knowledge of the unlawful origin of the thing which then constitutes the offence, which may be continued for an indefinite time in one place or, successively, in several different places. In my opinion one cannot validly maintain, on the one hand, that continuation of the thief’s possession—whether for weeks, months or years—is always a continuation of the act of theft or, if one prefers, a continuation of the commission of the theft, and one cannot, on the other hand, maintain that at the very time and place in which the thief takes or converts the thing, and so acquires possession of it, he is committing the offence of unlawful possession dealt with in s. 296.

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Determination of the time when the offence of theft is consummated and the offence of unlawful possession, described in s. 296, so far as the thief is concerned, begins, cannot be resolved in the abstract. However, the difficulty that may exist in determining this time, according to the circumstances of each case, does not affect the substance of the law.

The foregoing observations are not new. They can be found in what I believe is the first reported decision dealing specifically with the point, R. v. Van Dorn[1], in which Coady J.A., delivering the unanimous opinion of the British Columbia Court of Appeal, said the following:

In Regina v. Dale this Court held in particular circumstances of that case that the accused had been properly found guilty of theft and likewise of possession of the stolen goods knowing them to have been stolen. There the goods were found in the possession of the accused some months after the theft.

The present case does not differ in principle from that case except that here the stolen goods were found in possession some hours after the theft. The new offence of having in possession property acquired by crime is a separate and distinct offence from the old offences of receiving or retaining. The accused could not have been convicted of theft and receiving since he could not receive from himself, nor could he have been convicted of theft and retaining since the offence of retaining involved the idea that he retained the goods in his possession with knowledge, acquired after they came into his possession, that they were stolen goods.

It seems to me that where the possession charged is so removed in time and place from the actual offence of theft as not to be or form a part of the theft, or is not so intimately identified in time and place with the theft as to form a part of it, that it is then a distinct and separate offence for which the person may be convicted.

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It was argued that since theft necessarily involves the actual physical temporary possession by the thief of the goods at the time, then possession is necessarily involved in the act of theft itself, and as such could be considered an included offence and the thief consequently, under these circumstances, could not be convicted of both the offences of theft and possession. But it seems to me that cannot be said to be true when the possession is remote in time and place and is not the temporary possession incidental to the act of theft.

Various provincial Courts of Appeal have subsequently had to consider this unanimous decision of the British Columbia Court of Appeal. This was the case for, inter alia, the Ontario Court of Appeal in Regina v. Siggins[2], the Nova Scotia Supreme Court in banco in Regina v. Fennell[3], and the Quebec Court of Appeal in Regina v. St. Jean[4]. In the Siggins case, supra, the appellant was simultaneously charged and convicted on various counts of theft and unlawful possession of motor vehicles, owned by various persons. The Court of Appeal held that, in the circumstances of the case, the convictions for theft and the convictions for unlawful possession could not both be maintained, and the convictions for unlawful possession were set aside. The Court, whose attention was drawn by the Crown to the Van Dorn decision, supra, was careful not to repudiate the principle contained in that case; rather, in my view, it rendered a decision limited to the specific case under consideration, as may be seen from the following statements at the very beginning and in the body of the reasons given by MacKay J.A., who with the concurrence of Porter C.J.A. formed the majority on the question:

At p. 285:

I am of the opinion that in the circumstances of this case the convictions for both theft and possession cannot stand and that the jury having convicted on the counts charging theft, there should not be a

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conviction on the counts charging unlawful possession.

At p. 286:

Counsel for the Crown referred us to R. v. Van Dorn (1956), 116 C.C.C. 325, in which it was held that convictions for both offences, i.e. theft and possession, could stand where the possession charged is not so intimately identified in time and place as to form part of the theft itself. It may be that in certain circumstances this might be so. But in a case such as the present where the appellant was the actual thief and had had continuous possession of the motor vehicle from the time it was stolen by him, I think the two offences arise from the one act.

It should be added that the reasons for judgment in Siggins supra contain no indication or analysis of the circumstances surrounding the commission of the offences with which appellant was charged. It should also be noted that the contents of the counts are remarkably vague as to these circumstances, in that they merely allege, e.g., that the offence of theft of the vehicle owned by Mr. X was committed “on or about the 16th of May, 1958”, and that the offence of unlawful possession of the same vehicle was committed “in the month of May 1958”. Clearly, all this could not be regarded as circumstances comparable to those in the case at bar. In Regina v. Fennel supra, appellant, as in Siggins supra, was simultaneously charged and convicted of theft and unlawful possession of the stolen property. The Nova Scotia Supreme Court in banco dismissed Fennell’s appeal. Subsequently, however, the same Court was asked by counsel for the Attorney-General to consider the question of law now before this Court, and the result of the new hearing was that the convictions for unlawful possession were set aside. The Court, composed of Ilsley C.J.A. and Doull, Parker, Currie and MacDonald JJ.A., referred to the decision of the Court of Appeal for Ontario in R. v. Hogg[5], to that of Van Dorn supra, and to that of Siggins

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supra. The Court noted that appellant Fennel was found in possession of the property stolen by him only a few hours after the theft. Implicitly approving the principle of the decision in Van Dorn supra, Currie J.A., rendering judgment on behalf of the Court, said at p. 69:

In my opinion, R. v. Siggins should be applied in the instant case rather than R. v. Van Dorn, the facts of which are clearly distinguishable from the instant case. The Crown has proved beyond a reasonable doubt that the appellant-defendant was one of those who stole the goods, and that he had continuous possession of the goods until they were found by the R.C.M.P. some hours after the theft.

In Regina v. St-Jean supra, St-Jean, as in the two preceding cases, was simultaneously charged with theft and unlawful possession of the stolen property. Asked to plead to these charges, appellant pleaded not guilty to theft and guilty to unlawful possession. The Crown objected to acceptance of the plea of guilty. The objection was dismissed and the judge acquitted St-Jean of the theft charge, saying he had no alternative but to do so. The Crown appealed from this acquittal. The Court of Appeal, composed of Tremblay C.J.A. and Casey, Rinfret, Hyde and Rivard JJ.A., allowed the appeal, held that the acquittal on the theft charge was unjustified, quashed this acquittal and ordered that trial be held on the charge. Casey and Hyde JJ.A. would also, for their part, have quashed the conviction on the charge of unlawful possession while retaining in the record the plea of guilty, in order to give it its full effect in the event of an acquittal on the theft charge. Only Tremblay C.J.A. and Rinfret J.A. expressed an opinion on the question whether in law a person could be convicted of both theft and unlawful possession of the stolen property. The learned Chief Justice, whose opinion was concurred in by Rinfret J.A., made a point of observing that prior decisions were divided on the point, and indeed referred to several decisions, including

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those mentioned above. The ratio for the affirmative answer he gives to the question may be found at the bottom of p. 195 in the report:

[TRANSLATION] Section 296 of the Criminal Code, 1953-54 (Can.), c. 51, creates an entirely new offence. There is no question of receiving (réception) or of retaining (rétention). The essence of the offence is having in one’s possession.

It should be noted at this point that in the present case Hyde J.A. concurs in the reasons given by Salvas J.A. in support of the judgment a quo, as may be seen at p. 109 of the Case on appeal:

I agree with my colleague Mr. Justice Salvas that this appeal should be maintained and a new trial ordered. The case is to be distinguished from that of the Queen vs. St. Jean 1971 C.A. 73, which dealt with very different circumstances.

I share with my colleague the view that there may be a separate and distinct offence of unlawful possession committed where there is a substantial interval of time between his taking possession as the thief and the possession of the same effects in full or in part at a later date. This, as my colleague points out, was recognized by the Court of Appeal of British Columbia in R. vs. Van Dorn 25 C.R. 151 from the opinion of the Court given by Coady J. at page 152…

It might be worthwhile to pursue the matter and refer to decisions in which Courts have held differently, were it not that the basic point of difference is that the one point of view recognizes, and the other, be it said with the greatest respect, fails to appreciate, that the text of s. 296 differs in substance from that of s. 399 in the former Code, and accordingly, as required in such a case by s. 36(f) of the Interpretation Act (supra), the new enactment is to be held to operate as new law and is not to be construed and have effect as declaratory of the law as

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contained in the former enactment. However, one comment should be made on the decision of this Court in Fergusson v. R. supra. The question which the Court had to decide, and did decide, in that case, was whether the offence of unlawful possession was an offence included in that of robbery, and not, as in the case at bar, whether the same person may be convicted of both theft and unlawful possession with respect to the same property.

In concluding, I would say that, in order to find that Coté did commit two different offences respecting the same property, it is sufficient to state that if the hiding-place of the property stolen by him in the district of Montreal has been established and maintained by him for three years in the district of Joliette, on a piece of land owned by another, as a consequence of counsel or encouragement given by a third party to this effect, the third party would, in that case, necessarily have committed the offence of unlawful possession as an accomplice with Coté as principal, who could hardly have escaped conviction for that offence by pleading that he had already been punished for stealing the property.

For all these reasons I would dismiss the appeal.

The judgment of Martland and Pigeon JJ. was delivered by

PIGEON J.—On April 26, 1967 appellant Louis Côté pleaded guilty to several crimes, including armed robbery of a sum of money and securities amounting to $723,300 committed at Laval on December 18, 1965. Upon this plea, he was sentenced to three years and four months imprisonment, commencing December 30, 1965. He served his sentence, and after his release, namely on November 26, 1968, he was found in possession, at Ste. Béatrix, district of Joliette, of a considerable part of the securities stolen by him three years previously. Some of these securities were in his car, the remainder in a suitcase buried underground in a barrel. The

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key to the lock on the suitcase was found on him.

Three indictments were brought, accusing him of having unlawfully had in his possession [TRANSLATION] “on or about November 26, 1968”, securities amounting to $8,000, $417,715 and $3,400 respectively, knowing that they had “been obtained by the commission…of a theft, committing thereby an indictable offence contrary to s. 296 (now s. 312) of the Criminal Code”. The accused pleaded autrefois convict to these charges. The trial judge acted upon this plea, holding that the accused’s possession on November 26, 1968 was in continuation of that acquired by him by the theft, and that an accused who is convicted of theft cannot be convicted of unlawful possession of the same article.

The Court of Appeal held this conclusion incorrect in law and ordered a new trial. Hence the appeal to this Court.

In my view the point at issue in this case is definitely not the same as that involved in the decision of the Nova Scotia Court of Appeal in R. v. Fennell[6], the decisions of the Ontario Court of Appeal in R. v. Hogg[7] and R. v. Siggins[8], and the decision of the British Columbia Court of Appeal in R. v. Van Dorn[9]. In all of these cases the accused had been tried on counts of theft and of unlawful possession. He had been convicted on both counts and the principal point at issue was the correctness of the conviction on the second count. Save in the Dorn case, which is the earliest, only the conviction for theft was allowed to stand, on the ground that essentially only one offence was involved. The courts held that the taking of the stolen article into one’s possession was the essential element of theft, and that the unlawful possession of the article by the accused had

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been that alone which he had obtained by the theft itself. In all these cases, the unlawful possession which was the subject of the second conviction had been acquired prior to the conviction for the crime of theft.

In the case at bar the situation is quite different. The charge concerns unlawful possession at a date more than one year subsequent to the conviction for theft. Assuming the more recent decisions mentioned above to be correct, the question becomes the following: is prior conviction for theft of a given article a bar to a charge based on unlawful possession of that same article by the thief at a time subsequent to the conviction? Since the trial judge in this case has held that the possession of the goods stolen by the thief has been continuous despite his several years of imprisonment, one may, on that assumption as well, ask the following more general question: When the subject-matter of an offence is a continuous state of affairs such as possession, is a conviction a bar to a second charge if the state of affairs subsequently continues in existence?

In R. v. Siggins, MacKay J.A. said (at p. 287):

…where the appellant was the actual thief and had had continuous possession of the motor vehicle from the time it was stolen by him, I think the two offences arise from the one act. The same act that constituted the theft constituted the offence of having unlawful possession. To apply the principles of the Quon case it is of course necessary to treat the unlawful possession, whether, it be for a matter of minutes or months, as one continuing offence. In my opinion this is so. It would be clearly wrong to charge a man who had possession of stolen goods for a continuous period of one month with separate charges for each day of that period. It is only where the statute creating the offence provides that it shall be a separate offence or that separate penalties may be imposed for successive periods that a continuing offence can be treated as multiple offences…

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This must obviously be read in the context of the case: only one charge, based on an offence committed prior to the first conviction, was involved. At a later date the situation is different, because a conviction certainly does not relate to the future. An accused does not become entitled to continue breaking the law because he has been convicted once. Thus, there is no doubt that a person convicted of keeping a common bawdy-house may be convicted a second time if he continues to do so: this is implicit in subs. 4 of s. 193. The rule that charges must not be multiplied applies to that offence as to any other; but there is no undue multiplication of charges when another information is laid after the first conviction, if the violation continues.

In the Corpus Juris Secundum, Vol. 22, para. 281, it is stated:

A prosecution for an offence which is a continuing one is a bar to a subsequent prosecution for the same offence charged to have been committed at any time previous to the institution of the first prosecution. However, it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law…

Among the numerous decisions cited in support of this proposition I would mention only the most recent, Dapper v. Municipal Court San Diego Judicial District[10]. The last paragraph of this decision by the California Court of Appeal reads as follows (at p. 342):

Dapper’s contention there may be but one prosecution for a continuing crime (21 Am. Jur. 2d, Criminal Law, par. 183, p. 240) has application where a continuous crime, such as polygamy, is charged as separate offenses, all committed during the period embraced by the indictment. It is there held but one offense occurs down to the date the indictment is found. (Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 675, 33

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L.Ed. 118). The rule has no application where the second charge is made after conviction for the first offense. A conviction for maintaining a nuisance does not license the offender to continue that nuisance free from further criminal sanctions.

In my view Salvas J.A. was entirely correct in saying in his reasons in the Court of Appeal that the question whether Côté’s possession had been continuous from the date of the theft was of no concern and of no significance in the case at bar.

For these reasons I would dismiss the appeal.

RITCHIE J.—I agree with Chief Justice Fauteux.

In my view the special circumstances of this case disclose a clear severance in continuity between the offence of armed robbery for which the appellant was initially convicted and that of possession contrary to the provisions of s. 269 of the Criminal Code (now s. 312 (1)) of which he was subsequently indicted. In the result these were two separate offences.

LASKIN J. (dissenting)—I have had the advantage of reading the reasons for judgment prepared by the Chief Justice but I come to a different conclusion on the same facts as those upon which he proceeded. There is, indeed, no dispute as to the facts. A question of law alone is involved in this appeal.

The accused pleaded guilty in 1966 to theft, while armed, of certain government bonds (being “robbery” under the then s. 288(d) of the Criminal Code, now s. 312(d)) and was sentenced to a term of imprisonment of three years and four months as from December 30, 1965. He pleaded guilty also to certain related charges in respect of those bonds and in respect of certain other valuables and was given concurrent sentences (none exceeding the three years and four months) on those charges. He served the robbery sentence, and on or about Novem-

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ber 26, 1968, after his release from prison, he retrieved the bonds from a hiding place. Subsequently, the police, who had been tracking the accused, recovered the bonds from a suitcase. The key to the lock on the suitcase was found on the accused.

He was brought before a magistrate on November 27, 1968, to answer a charge of receiving (subsequently amended to a charge of unlawful possession), and later before another magistrate to answer another such charge, and after certain remands he was committed for trial on those charges. On October 29, 1970, three charges of unlawful possession of the retrieved bonds were brought against the accused under the then s. 296 of the Criminal Code, now s. 312(1). Each of the charges recited that on or about November 26, 1968, the accused was in unlawful possession of certain bonds knowing that they were obtained by the commission of an indictable offence, namely, robbery.

On the opening of his trial on October 30, 1970, the accused pleaded autrefois convict to the charges of unlawful possession. The trial judge acted upon this plea and directed an acquittal. He found that the accused was in continuous possession of the bonds from the time he stole them until they were recovered by the police, and he concluded that in those circumstances the accused could not be convicted of the offence of unlawful possession of the bonds when he had previously been convicted of their theft while armed, a conviction which involved possession by the accused of those very articles.

The Quebec Court of Appeal took a different view, rejecting the plea of autrefois convict and ordering a new trial at which the accused would plead to the merits. It was of the opinion that the offence of unlawful possession under s. 296

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of the Criminal Code differed from the offences of receiving or retaining (which it replaced upon the revision of the Criminal Code by 1953-54 (Can.), c. 51) and that in certain circumstances, such as those present here, a thief could also be convicted of unlawful possession, there being no coincidence of place and time in respect of the possession referable to the robbery and that referable to the unlawful possession. The Quebec Court of Appeal pointed to the fact that the charge of robbery recited that the accused had stolen the goods in Laval in the district of Montreal on December 18, 1965, whereas the charges of unlawful possession referred to the accused having unlawful possession at Ste. Béatrix in the district of Joliette on or about November 26, 1968. The Court conceded that a thief found in possession of stolen articles at the place and time of the theft could not at the same time be found guilty both of unlawful possession and of theft. There would be, in that case, a taking of possession as part of the theft that admitted of no further characterization of having unlawful possession independently.

I find it impossible, both as a matter of logic and of legal principle, to appreciate how, in the face of the accepted finding that the accused was in continuous possession of the stolen articles, the possession can, without more, become the basis of a conviction of a separate offence merely because the charge of that offence relates the possession to a different date and to a different place than the earlier charge of robbery upon which the accused was convicted. The bonds were, of course, recoverable, whether at the time of their theft or later, but the fact that the thief managed to conceal their whereabouts for a period (without at any time surrendering their possession to someone else and then reclaiming them) does not involve any new factor upon which to mount a fresh charge when their whereabouts are discovered.

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What counsel for the Crown would have it said is that if the charge of robbery had not been laid until the stolen bonds were recovered, the accused could at that time have been charged and convicted both of the robbery as of December 18, 1965 and of the unlawful possession as of November 26, 1968. I am unable to distinguish this situation from the one that would exist if the accused, having robbed a bank of bonds and fled with them, had been apprehended after a chase extending into the following day and had been arrested in a neighbouring municipality with the bonds in his possession. As I understand the reasons given in the Quebec Court of Appeal, it would not be open to convict the accused in such a case of both robbery and unlawful possession. In my view, to convict the accused of unlawful possession in the present case is to convict him because he was able to conceal the fruits of his robbery after that event and to resist disclosing their whereabouts when he was arrested on the robbery charge. There is no such offence defined in the Criminal Code.

Reliance was placed by the Quebec Court of Appeal upon Regina v. Van Dorn[11], a judgment of the British Columbia Court of Appeal, and it distinguished its own judgment in The Queen v. St. Jean[12], which was considered at length by the trial judge in the present case. I wish to deal with these cases, and as well with Regina v. Siggins[13], a judgment of the Ontario Court of Appeal. Before doing so, it will be convenient to set out the terms of the former receiving and retaining offences and the present offence of unlawful possession, so far as relevant, and also the definition of possession in s. 3(4) of the Criminal Code, applicable both at the time of the robbery charge and of the charges of unlawful possession.

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Receiving or Retaining Criminal Code, R.S.C. 1927, c. 36, s. 399. Everyone 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…knowing such thing to have been so obtained.

Unlawful Possession Criminal Code, 1953-54, c. 51, s. 296. Everyone commits an offence who has anything in his possession knowing that it was obtained (a) by the commission in Canada of an offence punishable by indictment….

Section 3(4) of the Criminal Code provides as follows:

(4) 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.

In Regina v. Van Dorn, the British Columbia Court of Appeal appeared to have no difficulty in sustaining a conviction of an accused for both theft and unlawful possession of the stolen goods which were found in his possession some hours after the theft. This decision simply affirmed in tighter circumstances an earlier decision, Regina v. Dale, referred to in the Van Dorn case where two such convictions were registered in respect of a thief who was found in possession of the stolen goods some months after the theft. There is no indication, in respect of either of these two cases, that the possession of the stolen goods was other than continuous in the accused until he was apprehended with them.

In my opinion, both of these cases were wrongly decided. Of course, unlawful possession under what was s. 296 is a different

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offence from receiving or retaining under the old s. 399. But how different in its application to a factual situation where the accused has retained possession of the stolen goods from the time of commission of the theft? Coady J.A. in Van Dorn states that such a thief could not have been guilty of the former offence of retaining because that involved knowledge, after the goods came into his possession, that they were stolen. Is the position any different in respect of unlawful possession which also requires the same guilty knowledge? And if a thief cannot receive from himself so as to be guilty of theft and receiving, can he possess from himself so as to be guilty of theft and unlawful possession when he has had possession all along?

I am of the opinion that the sounder view is stated in Regina v. Siggins which is consistent in principle with the recent judgment of this Court in Kienapple v. The Queen, decided on February 12, 1974 and not yet reported. In Siggins (which was followed, in preference to Van Dorn, by the Nova Scotia Supreme Court in Regina v. Fennell[14], the Ontario Court of Appeal was concerned with concurrent charges of theft and unlawful possession against the one accused in respect of two automobiles. Theft in respect of one of the cars was charged as occurring on or about May 16, 1958 in the village of Markham, County of York. The unlawful possession of that car was charged as of May, 1958 in the County of York and County of Ontario. Theft in respect of the second car was charged as occurring on or about June 12, 1958 in the town of Ajax, County of Ontario and the unlawful possession as occurring in the months of June and July, 1958 in the town of Ajax, County of Ontario. There were convictions on all charges but the convictions of unlawful possession were set aside on appeal. The Court of Appeal pointed out that it was quite proper to lay charges of theft and unlawful possession but wrong to con-

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vict of both where the thief is the one accused who has been in possession from the time of the theft until apprehended with the stolen cars.

MacKay J.A. invoked the principle expressed by Kellock J. in Rex v. Quon[15], at pp. 519-20, upon which this Court expanded in its reasons in Kienapple. In his concurring reasons, Morden J.A. considered the replacement of the offences of receiving or retaining by the offence of unlawful possession, adverted to the judgment of this Court in Clay v. The King[16], and concluded, rightly in my view, that the changes in the Criminal Code did not alter the force of the legal principle that precluded a conviction of the thief, who has been in continuous possession, of both theft and unlawful possession. As he said (at p. 314 of 32 C.R. 306):

Obtaining possession of property is an essential ingredient of the offence of theft. After the theft is completed, the continued possession by the thief is merely the continuance of the act of theft.

I would add that as no new factor except that of time (in the sense of continuity of possession) has intruded since the theft, I do not see how, in the face of s. 3(4) of the Criminal Code, that is enough to provide the basis of another offence.

I am of the opinion that the judgment of this Court in Kienapple should govern here so as to prevent multiple convictions for the same matter. It was there indicated that if autrefois convict as defined in what are now ss. 536 and 537(1)(a) of the Criminal Code (formely ss. 517 and 518(1)(a)) was too narrow to cover the situation, res judicata was available for that purpose. The extended meaning of autrefois

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convict (beyond strict identity of charges) may be apt to cover the present case in that s. 518(1)(a) (the provision in force at the time) asks whether “the matter on which the accused was given in charge on the former trial was the same in whole or in part”. Be that as it may, I am content to apply the principle of res judicata as precluding successive prosecutions for different offences with a substantial common element where there has been, as here, a conviction on the first prosecution. In short, this case does not fall to be decided on whether or not autrefois convict was technically the proper plea or whether res judicata should have been pleaded alone or in the alternative. The merits of this appeal are with the accused under the broad principle adopted in Kienapple.

Finally, I wish to comment on the judgment of the Quebec Court of Appeal in Regina v. St. Jean. In my opinion, it does not touch the principle in issue here. It decides only that where concurrent charges of theft and unlawful possession are laid (in that case, it was break, enter and theft and unlawful possession) the accused could not frustrate the trial on the more serious charge by pleading guilty to the less serious charge of unlawful possession. The Court did not decide that convictions could be entered on both charges where the accused was in continuous possession of the stolen goods.

There is only one further matter on which I wish to comment. The fact that the accused had already been convicted of robbery before being charged with unlawful possession does not, in my opinion, present any different situation than would exist if the two charges had been laid in exactly the terms in which they were successively brought and were tried concurrently. Just as a conviction of robbery would preclude a second conviction on the charge of unlawful possession at the same trial, so does the convic-

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tion of robbery here preclude a succeeding conviction of unlawful possession.

Since writing these reasons I have had an opportunity of seeing the reasons drafted by my brother Pigeon, in which he refers to certain United States authorities. The more appropriate authorities, in my opinion, are those dealing with theft, receiving and concealing offences, failing any offence of unlawful possession that we now have in this country. The general rule applied here in such cases as Siggins is also the general rule there: see 76 Corpus Juris Secundum, s. 14, p. 18 ff. In People v. Daghita[17], the New York Court of Appeals held that a thief could not be convicted of both larceny for stealing the goods and of concealing or witholding the stolen property. Fuld J. (later Chief Judge), speaking for the Court, took the view that the statute making it an offence for any person to conceal or withhold property knowing it to have been stolen was aimed at persons other than the thief; otherwise the statute could easily have specified “a thief or any person” as offenders. He added this (at p. 651):

To conceal and withhold is the thief’s purpose from the very moment that he gains possession of the property. That being so, the question arises, when does the thief’s act of withholding change from larceny…to receiving [or concealing]. The answer we suggest is “never”.

The Daghita case dealt with a situation where the actual thief was in continuous possession from the moment of theft. In Block v. U.S.[18], cert.denied[19], consideration was given to a federal statute making it a crime “to receive or have in possession…goods….knowing the same to have been stolen”. The accused there was not charged with theft, but in an obiter remark in dismissing an appeal from conviction the Court stated that “it is clear that the unlaw-

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ful possession of stolen property by the thief is not excluded from the terms of a statute which punishes the unlawful possession as well as the unlawful receiving of stolen goods. The thief may well be also the unlawful possessor of the property stolen by him”. No examples were given where there might be multiple convictions, and it may be that the situation envisaged was one where a person, although not the actual thief, was guilty of theft by being a party to the offence and later came into possession of the stolen property.

This was the very situation that arose in Milanovich v. U.S.[20], where husband and wife were convicted of stealing federal government property and the wife was also convicted on a separate count of receiving and concealing. The facts showed that the wife had never touched the stolen property until about seventeen days after the theft by others; her conviction of theft was as an aider and abettor. Notwithstanding these facts, the Supreme Court, in a 5-4 decision, held that the wife could not be convicted on the two counts. The majority took the view, as a matter of statutory construction, that Congress was trying to reach a new group of wrongdoers, not to multiply the offence of the thieves. In a strong dissent, Frankfurter J. was of the opinion that the case before him was not one of fragmentation of crimes for the purposes of punishment. In the course of his reasons, he said this:

It is hornbook law that a thief cannot be charged with committing two offenses—that is, stealing and receiving the goods he has stolen…. And this is so for the commonsensical, if not obvious, reason that a man who takes property does not at the same time

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give himself the property he has taken. In short, taking and receiving, as a contemporaneous—indeed a coincidental—phenomenon, constitute one transaction in life and, therefore, not two transactions in law. It also may well be that a person who does not himself take but is a contemporaneous participant as an aider and abettor in the taking is also a participant in a single transaction and therefore has committed but a single offense….

The case before us presents a totally different situation—not a coincidental or even a contemporaneous transaction, in the loosest conception of contemporaneity. Here we have two clearly severed transactions. The case against the defendant—and the only case—presented two behaviors or transactions by defendant clearly and decisively separated in time and in will. The intervening seventeen days between defendant’s accessorial share in the theft and her conduct as a recipient left the amplest opportunities for events outside her control to frustrate her hope of sharing in the booty, or ample time for her to change her criminal purpose and avail herself of a locus poenitentiae. Two larcenies, separated in time, would not be merged; what legal difference between the two situations here?

It surely is fair to say that in the common understanding of men such disjointed and discontinuous behaviors by Mrs. Milanovich—(1) bringing thieves to the scene of their projected crime and departing without further ado before the theft had been perpetrated, and (2) taking possession seventeen days later of part of the booty—cannot be regarded as a single, merged transaction in any intelligible use of English. And that which makes no sense to the common understanding surely is not required by any fictive notions of law or even by the most sentimental attitude toward criminals.

Even on the dissenting view taken by Frankfurter J. in the Milanovich case, it is difficult to conceive, in view of the accepted finding of continuous possession, that the accused Coté as, the actual thief could be found guilty of unlawful possession as well as of theft. There are some later state court cases that appear to

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prefer the approach of Frankfurter J. (without regard to whether the theft is by the actual thief or involves an aider and abettor) rather than of the majority in Milanovich. Thus, in People v. Tatum[21], a California appellate court said this (at p. 184):

We conclude that in the absence of facts indicating a complete divorcement of the concealing activities from the course of conduct of the thief in the initial concealing of the property stolen by him, a thief may not be found guilty of concealment.

This negative dictum was made the basis of an affirmative approach by the same court in People v. Williams[22], at p. 958 where this was said:

While generally a thief may not be convicted under the [concealing] section…he may be adjuged guilty of violating that section…where the theft has been completed and the facts indicate a complete divorcement between a second concealment and the initial concealment after the theft.

Although this goes beyond the facts upon which Frankfurter J. proceeded, it still does not, in my opinion, embrace the present case.

I would allow the appeal, set aside the order for a new trial and restore the order of acquittal.

Appeal dismissed, LASKIN J. dissenting.

Solicitor for the appellant: Claude F. Archambault, Montreal.

Solicitor for the respondent: Maurice C. Laniel, Montreal.