R. v. Kowlyk, (1988) 55 Man.R.(2d) 1 (SCC)

• Judge: Dickson, C.J.C., McIntyre, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 11, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1988), 55 Man.R.(2d) 1 (SCC)

R. v. Kowlyk (1988), 55 Man.R.(2d) 1 (SCC)

MLB headnote and full text

Raymond William Kowlyk v. Her Majesty the Queen

(No. 19849)

Indexed As: R. v. Kowlyk

Supreme Court of Canada

Dickson, C.J.C., McIntyre, Wilson, Le Dain and La Forest, JJ.

September 1, 1988.

Summary:

The accused was in possession of goods which he knew to be stolen. He was charged, however, with three counts of break, enter and theft and convicted on the basis of the doctrine of recent possession. The accused appealed his conviction, arguing that where the evidence before the court was as consistent with theft as it was with the possession of stolen goods, he should be acquitted because there was reasonable doubt as to which offence he should be found guilty of.

The Manitoba Court of Appeal, Philp, J.A., dissenting, in a decision reported in [1986] 3 W.W.R. 511; 39 Man.R.(2d) 122; 27 C.C.C.(3d) 61, dismissed the accused's appeal and affirmed his conviction. The accused appealed.

The Supreme Court of Canada, Wilson, J., dissenting, dismissed the appeal.

Criminal Law - Topic 1816

Break, enter and theft - Evidence - Doctrine of recent possession - A judge of the Manitoba Court of Appeal opined that "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" - The Supreme Court of Canada held that this view "is erroneous ... 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" - See paragraphs 10 to 11.

Criminal Law - Topic 1816

Break, enter and theft - Evidence - Doctrine of recent possession - [See Criminal Law - Topic 1880 below].

Criminal Law - Topic 1869

Possession of stolen goods - Evidence - Doctrine of recent possession - [See first Criminal Law - Topic 1816 above].

Criminal Law - Topic 1869

Possession of stolen goods - Evidence - Doctrine of recent possession - [See Criminal Law - Topic 1880 below].

Criminal Law - Topic 1880

Doctrine of recent possession - General - The Supreme Court of Canada held that 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 - There need not be any additional evidence, apart from the unexplained recent possession of stolen goods, necessary to permit an inference of guilt - 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 these circumstances to decide which, if either, inference should be drawn - In all recent possession cases the inference of guilty 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 - See paragraphs 1, 5, 7 and 12.

Criminal Law - Topic 1881

Doctrine of recent possession - Application of doctrine - Where evidence consistent with theft or possession - [See first Criminal Law - Topic 1816 above].

Criminal Law - Topic 1881

Doctrine of recent possession - Application of doctrine - Where evidence consistent with theft or possession - [See Criminal Law - Topic 1880 above].

Cases Noticed:

Clement's Case (1830), 1 Lewin 113; 168 E.R. 980, refd to. [para. 2].

Cockin's Case (1836), 2 Lewin 235; 168 E.R. 1139, refd to. [para. 2].

R. v. Hall (1845), 1 Cox Cr. C. 231, refd to. [para. 2].

R. v. Langmead (1864), Le. & Ca. 427; 169 E.R. 1459, consd. [para. 2].

R. v. Exall (1866), 4 F. & F. 922; 176 E.R. 850, consd. [para. 2].

Reference re R. v. Coffin, [1956] S.C.R. 191, refd to. [para. 2].

R. v. Lovis; R. v. Moncini, [1975] 2 S.C.R. 294; 2 N.R. 551, consd. [para. 2].

Richler v. The King, [1939] S.C.R. 101, refd to. [para. 2].

Ungaro v. The King, [1950] S.C.R. 430, refd to. [para. 2].

Tremblay v. The Queen, [1969] S.C.R. 431, refd to. [para. 2].

R. v. Graham, [1974] S.C.R. 206, consd. [para. 2].

R. v. Newton, [1977] 1 S.C.R. 399; 8 N.R. 431, consd. [para. 2].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435, refd to. [para. 2].

R. v. Hewson, [1979] 2 S.C.R. 82; 24 N.R. 224, refd to. [para. 2].

R. v. Schama and Abramovitch (1914), 11 Cr. App. R. 45, refd to. [para. 2].

R. v. Aves, [1950] 2 All E.R. 330, consd. [para. 2].

R. v. Loughlin (1951), 35 Cr. App. R. 69 (C.A.), refd to. [para. 2].

R. v. Smith (1983), 148 J.P. 215 (C.A.), refd to. [para. 2].

R. v. Nickerson (1977), 23 N.S.R.(2d) 104; 32 A.P.R. 104; 37 C.C.C.(2d) 337 (C.A.), consd. [para. 6].

R. v. Russell (1983), 56 N.S.R.(2d) 701; 117 A.P.R. 701; 32 C.R.(3d) 307 (C.A.), consd. [para. 6].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 306(1)(b) [para. 14]; sect. 312 [para. 39].

Authors and Works Noticed:

Delisle, Evidence, Principles and Problems, p. 79 [para. 31].

McWilliams, Canadian Criminal Evidence (2nd Ed.), pp. 81-82 [para. 31].

Phipson on Evidence (13th Ed.), paras. 4-11, p. 49 [para. 23].

Stuart, Don, Annotation to R. v. Russell (1983), 32 C.R.(3d) 308 [para. 6].

Wigmore on Evidence (3rd Ed.), vol. 9, pp. 417, 422 [para. 32].

Counsel:

Martin D. Glazer, for the appellant;

Donald Melnyk, for the respondent.

Solicitors of Record:

Martin D. Glazer, Winnipeg, Manitoba, for the appellant;

Attorney General of Manitoba, Winnipeg, Manitoba, for the respondent.

This appeal was heard before Dickson, C.J.C., McIntyre, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada on December 11, 1987. The decision of the Supreme Court was delivered on September 1, 1988, in both official languages, and the following opinions were filed:

McIntyre, J. (Dickson, C.J.C., Le Dain and La Forest, JJ., concurring) - see paragraphs 1 to 13;

Wilson, J., dissenting - see paragraphs 14 to 43.