R. v. Shonaman (W.T.) and Gunn (E.H.) et al., (1992) 126 N.B.R.(2d) 18 (PC)

• Judge: Brien, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: May 01, 1992
• Jurisdiction: New Brunswick
• Citations: (1992), 126 N.B.R.(2d) 18 (PC)

R. v. Shonaman (W.T.) (1992), 126 N.B.R.(2d) 18 (PC);

    126 R.N.-B.(2e) 18; 317 A.P.R. 18

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

R. v. Walter Thomas Shonaman, Earle Howard Gunn, Jr. and another

Indexed As: R. v. Shonaman (W.T.) and Gunn (E.H.) et al.

New Brunswick Provincial Court

Brien, P.C.J.

May 1, 1992.

Summary:

The accused were charged with break, enter and theft, contrary to s. 348(1)(b) of the Criminal Code.

The New Brunswick Provincial Court convicted the accused of the included offence of theft over $1,000.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - The New Bruns­wick Provincial Court held that s. 21(2) of the Criminal Code extends the criminal liability of conspirators to crimes that are a probable, though unintended, conse­quence of the unlawful object of the con­spiracy - The court held that s. 21(2) did not apply when the offence committed is the unlawful purpose contemplated by the parties to the common intention - Accord­ingly the offence contemplated by this section must be a different offence than the unlawful object, but must be a prob­able result of the execution of the offence contemplated by the common intention - See paragraphs 33 to 34.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What con­stitutes aiding and abetting - The New Brunswick Provincial Court held that presence at the scene of the crime could, in some circumstances, be evidence of aiding and abetting, but there must be more, such as prior knowledge of the intended offence or attendance for the purpose of encouragement - See paragraph 29.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What con­stitutes aiding and abetting - The New Brunswick Provincial Court distinguished aiding and abetting - See paragraphs 31 to 32.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What con­stitutes a party - Parties to theft - The New Brunswick Provincial Court discussed how an accused could be a party to the offence of theft - See paragraphs 39 to 41.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What con­stitutes a party - The two accused and the perpetrator/principal offender met to plan a break, enter and theft and discussed the fact that the two accused would be avail­able to transport the stolen goods and dispose of them - The principal offender broke into a store and removed items, which were later loaded into a taxi driven by one accused (the second accused was a passenger in the vehicle); the goods were stored in the accused driver's home - The New Brunswick Provincial Court held that the two accused were not parties to the offence of break and enter, but convicted both as parties to the included offence of theft - See paragraphs 54 to 59.

Criminal Law - Topic 2763

Attempts, conspiracies, accessories and parties - Counselling to commit offence - What constitutes - The New Brunswick Provincial Court held that in order for a person to be liable as a party to an offence of break and enter by virtue of having counselled another to commit the offence it is necessary for the Crown to prove the following elements, namely: that the other person committed the offence; that the accused counselled him to commit the offence; that the other person committed the offence because the accused counselled him to do so and that the accused knew or intended that his conduct would cause the person to commit the specific offence - See paragraph 35.

Criminal Law - Topic 4450

Procedure - Verdicts - Included offences - General - The New Brunswick Provin­cial Court stated that an offence may be included in another where the description of the offence as worded or particularized in the count includes the commission of another offence - See paragraph 36.

Criminal Law - Topic 4458

Procedure - Verdicts - Included offences - Inclusion in break and enter - The New Brunswick Provincial Court held that the offence of unlawful possession of stolen property is not included in the offence of breaking and entering - When theft is particularized in an information charging breaking and entering, it becomes an included offence - See paragraphs 37 to 38.

Criminal Law - Topic 4460

Procedure - Verdicts - Included offences - Inclusion in theft - The New Brunswick Provincial Court held that the offence of unlawful possession of stolen property is not an included offence within theft - See paragraph 37.

Evidence - Topic 1391

Relevant facts - Relevance and materiality - Identity - Fingerprinting - The New Brunswick Provincial Court held that fingerprint evidence may establish that an accused physically handled a prohibited item at some time - It is usually offered to identify that accused and as prima facie proof of possession of an item by an accused - It is treated like any other cir­cumstantial evidence - In some circum­stances the evidence alone is of such a character that an inference of guilt may be drawn in the absence of an explanation that might reasonably be true or of other evidence supporting the drawing of an inference consistent with the innocence of the accused - In other circumstances, the evidence is not of such a character, and there must be other evidence before an inference of guilt leading to conviction is made - See paragraphs 42 to 43.

Cases Noticed:

R. v. Dunlop, [1979] 2 S.C.R. 881; 27 N.R. 153; 8 C.R.(3d) 349, refd to. [para. 27].

R. v. Coney (1882), 8 Q.B.D. 534, refd to. [para. 27].

R. v. Trinneer, [1970] S.C.R. 638, refd to. [para. 33].

R. v. Simpson, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 34].

R. v. S.L.S. (1988), 86 N.B.R.(2d) 174; 219 A.P.R. 174 (C.A.), refd to. [para. 35].

Fergusson v. R., [1962] S.C.R. 229, refd to. [para. 37].

R. v. Farbridge (1984), 15 C.C.C.(3d) 521, refd to. [para. 38].

R. v. Campbell (1899), 2 C.C.C. 357, refd to. [para. 40].

R. v. Pelletier, [1970] 3 C.C.C. 387 (N.B.C.A.), refd to. [para. 41].

R. v. Breau (1987), 76 N.B.R.(2d) 367; 192 A.P.R. 367 (C.A.), refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1) [para. 26]; sect. 21(2) [para. 33]; sect. 348(1)(b) [paras. 1, 54]; sect. 662(1) [para. 36].

Authors and Works Noticed:

Cross on Evidence (4th Ed.), p. 176 [para. 15].

Mewett and Manning, Criminal Law (2nd Ed. 1985), p. 46 [para. 28].

Rose, Parties to an Offence (1982), pp. 38 [para. 39]; 58 [para. 30].

Counsel:

C. McNally, for the Crown;

A. Ritchie, for the accused, Shonaman;

L. Veniot, for the accused, Gunn.

These charges were heard before Brien, P.C.J., of the New Brunswick Provincial Court, at Saint John, N.B., whose decision was delivered on May 1, 1992.