Supreme Court Judgments

Supreme Court of Canada

Little and Wolski v. R., [1976] 1 S.C.R. 20

Date: 1974-12-19

Robert Gary Little and Richard William Wolski Appellants;

and

Her Majesty The Queen Respondent.

1974: June 11, 12; 1974: December 19.

Present: Martland, Ritchie, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Theft—Indictment—Charge alleging ownership in “Westwood Jewellers Limited”—Evidence establishing owner as individual carrying on business under name of “Westwood Jewellers”—Whether ground for acquittal.

The appellants were charged with stealing two diamond rings, the property of Westwood Jewellers Limited. The evidence established that the store from which the rings were taken was known as “Westwood Jewellers”, owned and managed by a Mr. Nuytten. At the conclusion of the Crown’s case, the defence moved for dismissal of the charge on the submission that the Crown had failed to lead evidence of ownership of the rings in Westwood Jewellers Limited, as charged in the indictment. The judge entered an acquittal on the ground that the Crown had charged ownership in West-wood Jewellers Limited and proven ownership in Mr. Nuytten. On appeal, the Court of Appeal allowed the appeal and convicted the two accused. Appeals by the accused were then brought to this Court.

Held: The appeals should be dismissed.

Per Martland, Ritchie and de Grandpré JJ.: If the owner of an object allegedly stolen is mentioned in an indictment and if his ownership is not proven and there are no other circumstances to indicate to the accused the true nature of the charge, an acquittal should be entered. However, when, as in the present case, there cannot be any possibility for the accused to fail to identify the transaction about which they are charged, there is no reason to discharge the accused for the sole reason that the owner mentioned in the indictment has not been mentioned in the evidence.

Per Dickson and Beetz JJ.: On a charge of theft, save in exceptional circumstances as, for example, when theft can be inferred from the suspicious circumstances of the

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accused’s possession, an allegation of ownership is not mere surplusage. If such an allegation is contained in an indictment and not proven, the charge must be dismissed.

The present case fell within the narrow compass of whether it was fatal to the position of the Crown to allege ownership in X Company Limited and prove ownership in X Company. On a charge of theft the identity of the owner of the property alleged to have been stolen is sufficiently established, in instances in which the owner is named in the indictment, when, as in this case, (i) the evidence adduced by the Crown reasonably identifies the owner with the person named in the indictment as owner, and (ii) it is clear that failure to prove the identity of the owner with greater precision has not misled or prejudiced the accused in preparation or presentation of the defence.

[Brodie v. The King, [1936] S.C.R. 188, applied; Trainer v. The King (1906), 4 C.L.R. 26, distinguished; R. v. Carswell (1916), 26 C.C.C. 288; R. v. Cassils (1932), 57 C.C.C. 366; R. v. Scott, [1970] 3 C.C.C. 109; R. v. Meloche, [1970] 1 C.C.C. (2d) 187; R. v. Sheppard (1949), 95 C.C.C. 298; R. v. Pelletier, [1970] 3 C.C.C. 387; R. v. Emmons (1970), 13 C.R.N.S. 310; R. v. Schemenaur (1968), 65 W.W.R. 425, referred to.]

APPEALS from a judgment of the Court of Appeal for Manitoba[1], allowing the Crown’s appeal from the acquittal of the accused, by Hewak Co. Ct. J., on a charge of theft. Appeals dismissed.

P. Schulman, for the appellants.

J. Guy, for the respondent.

The judgment of Martland, Ritchie and de Grandpré JJ. was delivered by

DE GRANDPRE J.—The appellants were indicted as follows:

That the said Richard William Wolski, and Robert Gary Little, on or about the 22nd day of July in the year of our Lord one thousand nine hundred and seventy-two, at or near the City of Winnipeg in the Eastern Judicial District in the Province of Manitoba, did unlawfully

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steal two diamond rings to a total value exceeding two hundred dollars, the property of Westwood Jewellers Limited situate at 3298 Portage Avenue in the aforesaid City of Winnipeg and did thereby commit theft.

At the conclusion of the evidence presented by the Crown, the accused moved for a dismissal on the ground that there was no evidence to show that Westwood Jewellers Limited was the owner of the diamond rings mentioned in the indictment. Hewak Co. Ct. J., after a full review of the authorities, found himself “compelled to discharge the accused”.

The trial judge had posed the problem in the following terms:

I am satisfied on the totality of the evidence before me that Little and Wolski not only knew one another but had entered the premises of Westwood Jewellers Limited for the purpose of committing a theft. I am satisfied that the accused Little acted as a decoy while Wolski made his way to the jewel case and removed the rings from the case after which time both accused fled the scene.

The only question that must be resolved is the question of the ownership specified in the indictment.

To resolve the question, he sought guidance in a principle which he expressed in the following terms:

While it is well-settled law that proof of ownership can be proven not only by direct evidence but by circumstantial evidence, the fact remains that there must be evidence proving ownership in the person alleged to be the owner in the indictment.

In that light, he looked at the evidence which contains, amongst others, the following:

Q. I understand, Mr. Nuytten, you are the manager of Westwood Jewellers, located at 3298 Portage Avenue, in the City of Winnipeg, in the Province of Manitoba; is that correct?

A. That is correct.

Q. Were you the owner and manager of Westwood Jewellers on July 22nd, 1972?

A. Yes, I was.

and he concluded:

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Here, however, Westwood Jewellers Limited was specified as the owner in the indictment whereas the evidence established Nuytten as the owner. Nuytten and West‑wood Jewellers Limited, in law, are two separate and distinct individuals.

On an appeal by the Crown, the Court of Appeal came to the conclusion that a point of law existed enabling a Crown appeal to be taken, and had this to say on the substance:

No one, throughout the case, referred to the entity of “Westwood Jewellers Limited” but there is no question that the premises where the offence was alleged to have taken place were called “Westwood Jewellers”, that the premises were situate at 3298 Portage Avenue, in Winnipeg, and that the rings were stolen from those premises.

Matas J., speaking for the Court, re-examined all the relevant cases and concluded:

In the case at bar, use of the corporate name in the indictment did not mislead in any way: the accused had sufficient knowledge, by the indictment, of the circumstances of the offence; they had reasonable information with respect to the act alleged in the indictment sufficient to identify the transaction. There was no prejudice to them. This is not a case of a charge against a company where status and exact terminology would be an important detail. (cf. R. v. Pelissiers Limited, [1926] 1 W.W.R. 189 (Man. C.A.).)

With respect, acquittal, under the circumstances of the case, would be in direct contravention of the plain words of s. 512(g) of the Code and would negate the clear intention of Parliament.

I agree with this result.

The crime of theft is defined in s. 283 of the Criminal Code and I quote the relevant paragraph:

283. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent,

(a) to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of his property or interest in it,

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To be fair to the accused and to bring home to him the offence with which he is charged, the Code has enacted various provisions as to counts and indictments of which the following should be quoted here:

510. (2) The statement referred to in subsection (1) may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved,

(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence, or

(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insuficiency of details does not vitiate the count.

512. No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 510 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that

(b) it does not name the person who owns or has a special property or interest in property mentioned in the count,

(g) it does not name or describe with precision any person, place or thing, or

The purpose of these provisions is clearly, on the one hand, to avoid undue technicalities and, on the other hand, to permit the accused to know exactly the transaction which is the basis of the charge. On this latter aspect of the matter, Rinfret J., as he was then, speaking for the Court, had this to say in Brodie v. The King[2], at p. 194:

Those are the very words of the section; and they were put there to embody the spirit of the legislation, one of its main objects being that the accused may have a fair trial and consequently that the indictment shall, in itself, identify with reasonable precision the act or acts with which he is charged, in order that he may be advised of

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the particular offence alleged against him and prepare his defence accordingly.

Once this aspect has been covered and the accused has been assured of a fair trial because he has been made aware of the substance of the charge and of the circumstances of the transaction, the other aspect must be looked at, namely the desire of Parliament not to burden the administration of justice with a narrow, technical and legalistic approach. On this point, it is worth comparing the wording of s. 283, para. 1, and that of s. 512, para. (b); both these sections refer to the owner of a thing or to a person having a special property or interest therein.

If, however, the name of the alleged owner is mentioned in the indictment, is it correct to state that, unless ownership in that person is proven by the Crown, the charge must be dismissed? I am not ready to accept that this is a true statement of the law.

All of the relevant cases having been discussed in the Courts below, it would serve no useful purpose to review them here. However, it should be noted that many of these cases rely on the Australian case of Trainer v. The King[3], where Griffith C.J. expressed the following view:

The Law of England, and it is the same here, requires the ownership of the property to be laid in the indictment and proved. There is ample power of amendment, but in the absence of amendment it must be proved as laid.

In my opinion, this view does not take into consideration what is now ss. 510 and 512 of the Criminal Code, sections which, in substance, have been in existence since 1892 and which do create in Canada a situation different from that summarized by Griffith C.J. above. This situation, of course, brings to mind the following note of caution to be found at the end of the Brodie case, supra, at p. 199:

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We do not want to part with this appeal, however, without saying that our decision is strictly limited to the points in issue. We would not like to be taken as subscribing to certain generalities contained in some of the judgments to which we have been referred and which would tend to convey the idea that, notwithstanding the coming into force of the Criminal Code, the criminal law in this country should continue to be administered as though there were no Code.

There is no doubt that, if the owner of the object allegedly stolen is mentioned in the indictment and if his ownership is not proven and there are no other circumstances to indicate to the accused the true nature of the charge, an acquittal should be entered. However, when, as in the present case, there cannot be any possibility for the accused to fail to identify the transaction about which they are charged, there is no reason to discharge the accused for the sole reason that the owner mentioned in the indictment has not been mentioned in the evidence.

In the present case, the following factors have to be underlined:

(1) the jewellery store where the offence was alleged to have taken place was situated in the Westwood Shopping Centre;

(2) this store was known, and proven to be so, as Westwood Jewellers;

(3) the premises were situated at 3298 on Portage Avenue in Winnipeg;

(4) Little gave a statement to the police, statement which was accepted in evidence, wherein he admitted having been in Westwood Jewellers at the time of the alleged theft;

(5) Wolski, on his part, although denying to the police having been inside Westwood Jewellers, was brought by the police to the Shopping Centre and had his attention directed to West-wood Jewellers.

In my opinion, on the whole of the evidence, it is clear that the accused have been given sufficient information about the circumstances of the alleged offence and were at all times in a position to identify the transaction referred to in the indictment. Accordingly, it is my view that they have received a fair trial.

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It is obvious from the foregoing that the appeal by the Crown to the Court of Appeal of Manitoba raised a point of law so there was jurisdiction in that Court.

On the whole, I would confirm the judgment appealed from and would dispose of the matter in accordance with the order of the Court of Appeal.

The judgment of Dickson and Beetz JJ. was delivered by

DICKSON J.—This case raises a short but interesting point as to proof of ownership on a charge of theft. The appellants were charged with stealing two diamond rings the property of Westwood Jewellers Limited, situate at 3298 Portage Avenue in the City of Winnipeg. The evidence established that the store from which the rings were taken was known as Westwood Jewellers, that it was situate at 3298 Portage Avenue in the City of Winnipeg and that the owner and manager of Westwood Jewellers on the day of the alleged offence was a Mr. Nuytten. At the conclusion of the Crown’s case, the defence moved for dismissal of the charge on the submission that the Crown had failed to lead evidence of ownership of the rings in West-wood Jewellers Limited, as charged. On the specific point of ownership, one finds this evidence of Mr. Nuytten:

Q. I understand, Mr. Nuytten, you are the manager of Westwood Jewellers, located at 3298 Portage Avenue, in the City of Winnipeg, in the Province of Manitoba; is that correct?

A. That is correct.

Q. Were you the owner and manager of Westwood Jewellers on July 22nd, 1972?

A. Yes, I was.

Mr. Nuytten was not cross-examined on this point.

The judge, Hewak Co.Ct.J., said:

As previously stated, in this case the indictment alleges ownership to be in a corporate entity, Westwood Jewellers Limited. The evidence, however, establishes that the ownership of the goods is in a person, i.e., Nuytten. The Court cannot and should not bridge this gap by inferring that since Nuytten described himself as

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manager and owner of Westwood Jewellers situated at 3298 Portage Avenue and since the indictment specified the owner to be Westwood Jewellers Limited situated at 3298 Portage Avenue, the stolen property in question really belonged to Westwood Jewellers Limited and not to George Nuytten. Such an inference might have been possible had there been some evidence that Nuytten owned controlling shares in a company known as West-wood Jewellers Limited and that Westwood Jewellers Limited was carrying on business under the firm name and style of Westwood Jewellers. In the absence of such evidence, however, it is as reasonable to infer that Nuytten, in his personal capacity, was carrying on business under the firm name and style of Westwood Jewellers at that address rather than the limited company.

The judge entered an acquittal on the ground the Crown had charged ownership in Westwood Jewellers Limited and proven ownership in Mr. Nuytten. He applied such cases as R. v. Carswell[4]; R. v. Cassils[5]; and R. v. Scott[6], all decisions of the Appellate Division of the Supreme Court of Alberta, which support the proposition that if A is named as owner of property alleged to have been stolen the Crown cannot succeed if it is established in evidence that B is in fact the owner. The judge would seem to have been under the impression that the Crown had alleged ownership in one person and had proven ownership in another person. With respect, I do not think that is what occurred in this case. The charge alleged ownership in Westwood Jewellers Limited; the evidence established that the owner was Westwood Jewellers, or more precisely, Nuytten carrying on business under the firm name and style of Westwood Jewellers. The question which emerges, therefore, is whether failure of the Crown to prove “Limited” results in an acquittal. The Court of Appeal for Manitoba answered this question in the negative, I think correctly.

I have had the advantage of reading the reasons prepared by my brother de Grandpré and I agree with him that these appeals must fail. I regret, however, I am unable to agree with him that if the

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name of an alleged owner is stated in an indictment and ownership in that person is not proven by the Crown, the charge will none the less stand if there is no possibility for the accused to fail to identify the transaction referred to. In my opinion, save in exceptional circumstances as, for example, when theft can be inferred from the suspicious circumstances of the accused’s possession, an allegation of ownership is not mere surplusage. There are many authorities which support the proposition that if such an allegation is contained in an indictment and not proven, the charge must be dismissed. See, for example, R. v. Meloche[7], in which Schroeder J.A., at p. 189, said:

It is well settled that on a charge of theft the Crown is required to prove ownership of the thing alleged to have been stolen in some person other than the accused. In a case such as the present, where the Crown names a person in the indictment as owner, it must prove that person’s ownership and no other person’s: R. v. Carswell (1916), 26 C.C.C. 288, 29 D.L.R. 589, 10 Alta. L.R. 76; R. v. Cassils, 57 C.C.C. 366, 26 Alta. L.R. 180, [1932] 1 W.W.R. 572; R. v. Bagshaw (not yet reported) [since reported [1970] 3 O.R. 3, [1970] 4 C.C.C. 193, 10 C.R.N.S. 245], decided by this Court on February 25, 1970.

Nor can I agree with my brother de Grandpré that this is a case in which the name of the alleged owner is mentioned in the indictment and the Crown has failed to mention that owner in the evidence. It seems to me that the case falls within the narrower compass to which I have referred, namely whether it is fatal to the position of the Crown to allege ownership in X Company Limited and prove ownership in X Company. The question is one of sufficiency of proof, not absence of proof, of, in this case, an essential ingredient of the charge. It should also be observed that we are not here concerned with an attack upon the indictment, the sufficiency of which is conceded by counsel for the appellants.

The first of the authorities to which I would

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refer is R. v. Sheppard[8], decided by the Ontario Court of Appeal, in which the charge was for alteration of a cheque and named W.J. Lintell and Sons, whereas in fact the cheque was that of W.J. Lintell & Sons Ltd. The facts were the converse of the present case. Roach J.A., delivering the judgment of the Court, made this comment, p. 302:

Even under the old common law a person might be described by his or her real name or that by which he or she was usually known.

Here in Toronto if one is heard to speak of “The T. Eaton Company”, is any doubt left in the mind of the listener as to what firm is meant? The same applies when people speak of “Simpsons” or “Ryrie-Birks”.

In R. v. Meloche, supra, the charge was one of theft from Steinberg’s Miracle Mart. In dismissing the charge, the Provincial Court judge said there was reasonable doubt in his mind as to whether Steinberg’s Miracle Mart had capacity to own anything. The Ontario Court of Appeal allowed the Crown’s appeal. Schroeder J.A. said, p. 192:

The Crown having made out a prima facie case against the accused by establishing de facto possession of the goods in question in a firm known to the public as Steinberg’s Miracle Mart, that firm’s ownership of the property was never put in issue and the prima facie proof stands unassailed. If the issue had been raised, it would then have been incumbent on the Crown to prove the name of the owner of the goods with precision—a task of very little difficulty.

Meloche s case was followed by the Ontario Court of Appeal in R. v. Francis (1970), unreported, in which the respondent was charged with theft of eight canvas mail bags containing money the property of Modern Music Co. Ltd., and acquitted by a Provincial Court judge at Sault Ste. Marie. On appeal, Gale C.J.O. for the Court said:

There was evidence to the effect that some canvas bags containing money were stolen from “Modern Music Company” or “Modern Music”. However, no witness actually stated that the bags were owned by

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“Modem Music Co. Ltd.”, and hence the learned judge decided that the charge should be dismissed. We are all of the view that he was quite wrong in coming to that conclusion, and need only refer to the provisions of s. 498 of the Criminal Code, and to a recent judgment of this Court in R. v. Catherine Anne Meloche delivered on June 10, 1970, as yet unreported.

In R. v. Pelletier[9], decided by the Appeal Division of the New Brunswick Supreme Court, the charge was one of theft of copper wire from Fraser Companies Limited. Various witnesses referred to the Company as “Fraser Company”, “Fraser”, “Fraser’s” and “Fraser Pulpmill”. The Court held this to be adequate evidence of ownership by Fraser Companies Ltd. There was no necessity to prove the corporate status of the company or that it was in good standing. In R. v. Emmons[10], Allen J.A. of the Appellate Division of the Alberta Supreme Court reviewed many of the authorities. In this case the owner of the stolen goods was described in the charge as “Taylor Pearson and Carson Electronics Ltd.” The facts established by the evidence showed there was no such company. The owner of the stolen property was Taylor Pearson & Carson Ltd. which carried on business under three “division” names, including that of Taylor Pearson & Carson Electronics Division. It was argued on the appeal that the true identity and existence of the alleged owner of the stolen property was not established at the trial but the Court dismissed the appeal. Finally, I might refer to R. v. Schemenaur[11], in which the British Columbia Court of Appeal held there was sufficient identification of Kelly Douglas & Co. Ltd., owner of the stolen property, by references to the Kelly Douglas Company or Kelly Douglas.

One can discern throughout these cases support for the proposition that on a charge of theft the identity of the owner of property alleged to have been stolen is sufficiently established, in instances in which the owner is named in the indictment, when (i) the evidence adduced by the Crown rea-

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sonably identifies the owner with the person named in the indictment as owner, and (ii) it is clear that failure to prove the identity of the owner with greater precision has not misled or prejudiced the accused in preparation or presentation of his defence. In my view the evidence in this case reasonably identified the owner of the stolen diamond rings with the person named in the indictment as owner, and the accused were in no way misled or prejudiced in their defence by failure to prove identity with greater precision.

I would accordingly dismiss the appeals.

Appeals dismissed.

Solicitors for the appellants: Schulman & Schulman, Winnipeg.

Solicitor for the respondent: J.P. Guy, Winnipeg.