R. v. Orman and Marcotte, (1975) 12 N.S.R.(2d) 217 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 11, 1975
• Jurisdiction: Nova Scotia
• Citations: (1975), 12 N.S.R.(2d) 217 (CA)

R. v. Orman (1975), 12 N.S.R.(2d) 217 (CA);

       6 A.P.R. 217

MLB headnote and full text

R. v. Orman and Marcotte

Indexed As: R. v. Orman and Marcotte

Nova Scotia Supreme Court

Appeal Division

Crown Side

MacKeigan, C.J.N.S., Coffin and Macdonald, JJ.A.

July 4, 1975.

Summary:

This case arose out of a charge of possession of a stolen truck contrary to s. 313 of the Criminal Code. The accused, Orman, was arrested when he stepped out of the passenger side of a stolen truck. Marcotte, who was the driver of the truck, was convicted of possession of stolen goods. The truck was the property of Citadel Motors and was reported stolen. The accused, Orman, stated to the police when Orman was arrested "Marcotte did it again". The trial court convicted the accused, Orman.

On appeal to the Appeal Division of the Nova Scotia Supreme Court the appeal was dismissed and the conviction of the accused Orman, was affirmed. The Appeal Division considered s. 3(4)(b) of the Criminal Code respecting constructive possession and inferred knowledge by the accused, Orman, that the truck was stolen - see paragraphs 11 to 20.

Macdonald, J.A. dissenting, in the Appeal Division, would have set aside the conviction of the accused Orman. Macdonald, J.A., stated that in order to prove constructive possession the Crown was required to prove both knowledge and consent. Macdonald, J.A., stated that it cannot be assumed from Orman's mere presence as a passenger in the truck that Orman consented to Marcotte's possession of the truck - see paragraphs 33 to 50.

Evidence - Topic 214

Inferences - Inference of knowledge - Charge of possession of stolen goods - The accused was arrested when he stepped out of the passenger side of a stolen truck and stated to the police that "Marcotte (the driver of the truck) did it again" - The Nova Scotia Court of Appeal inferred knowledge by the accused that the truck was stolen - See paragraphs 11 to 20.

Criminal Law - Topic 57

Protection against self incrimination - Unfavourable inference from the failure of the accused to testify - The Nova Scotia Court of Appeal stated that it could properly consider the accused's failure to testify at trial when the Court of Appeal was exercising its power under s. 613(1)(b)(iii) of the Criminal Code - See paragraph 21.

Criminal Law - Topic 5862

Sentence - Charge of possession of stolen goods - 21 year old male with criminal record - The Nova Scotia Court of Appeal affirmed a sentence of imprisonment of 3 years - See paragraphs 2 and 22 to 28.

Cases Noticed:

R. v, Sigouin et al., [1966] 1 C.C.C. 235 (Que. C.A.), folld. [para. 15].

R, v. McNeil (1957), 26 C.R. 278 (N.S.C.A.), folld. [para. 15].

Corbett v. The Queen (1973), 1 N.R. 258, 14 C.C.C.(2d) 385 (S.C.C.), folld. [para. 21].

Evans v. The Queen (1975), 11 N.S.R.(2d) 91, folld. [para. 27].

R. v. Sherman (1946), 1 C.R. 153, folld. [para. 37].

R. v. Price (1961), 35 C.R. 179, 130 C.C.C. 259, folld. [para. 37].

R. v. Colvin and Gladue (1942), 78 C.C.C. 282, folld. [para. 40].

Marshall v. The Queen (1968), 5 C.R.N.S. 348, folld. [para. 42].

R. v. Harvey (1969), 1 N.B.R.(2d) 587, 7 C.R.N.S. 183, folld. [para. 43].

R. v. Graham (1972), 19 C.R.N.S. 117, folld. [para. 45].

R. v. Coots (1847), 2 Cox C.C. 188, folld. [para. 48].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 3(4)(b) [para. 12], sect. 613(1)(b)(iii) [para. 21].

Counsel:

Joel E. Pink, for the appellant, Orman;

William B. Digby, for the appellant, Marcotte;

Graham W. Stewart, for the respondent.

This appeal was heard by the Appeal Division on June 11, 1975. Judgment was delivered by the Appeal Division on July 4, 1975 and the following opinions were filed:

MacKEIGAN, C.J.N.S. - see paragraphs 1 to 29.

COFFIN, J.A. - see paragraphs 30 to 32.

MacDONALD, J.A. - dissenting in part, see paragraphs 33 to 50.