R. v. Smith, (1985) 70 N.S.R.(2d) 158 (CA)

• Judge: Macdonald, Pace and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 15, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 70 N.S.R.(2d) 158 (CA)

R. v. Smith (1985), 70 N.S.R.(2d) 158 (CA);

    166 A.P.R. 158

MLB headnote and full text

R. v. Smith

(S.C.C. 01214)

Indexed As: R. v. Smith

Nova Scotia Supreme Court

Appeal Division

Macdonald, Pace and Matthews, JJ.A.

November 15, 1985.

Summary:

The accused appealed a conviction for possession of stolen property, contrary to s. 313(a) of the Criminal Code of Canada.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Criminal Law - Topic 1841

Possession of stolen goods - Possession or control - The accused's fingerprints were found on the driver's side window of a stolen car - The accused admitted to sitting in the driver's side with the keys in the ignition, but denied knowledge that the car was stolen - The Nova Scotia Court of Appeal held that there was sufficient evidence to support the trial judge's finding that the accused was in possession or control of the stolen vehicle - The court affirmed the accused's conviction where the accused's explanation did not displace the doctrine of recent possession - See paragraphs 2 to 8.

Criminal Law - Topic 1881

Doctrine of recent possession - Application of doctrine - The Nova Scotia Court of Appeal stated that where an accused was in possession of recently stolen property the accused was prima facie guilty of possession of stolen property - The court stated that to displace the doctrine of recent possession, the accused had the evidentiary burden of giving a reasonable explanation - The court affirmed an accused's conviction, where the trial judge disbelieved the explanation of the accused - See paragraphs 9 to 11.

Criminal Law - Topic 5201

Evidence and witnesses - Admissibility - Refusal to take polygraph test - An accused charged with possession of stolen property requested a polygraph test, then changed his mind - The Nova Scotia Court of Appeal held that evidence of the refusal was admissible if it was relevant and did not endanger the presumption of innocence - The court held that evidence of the refusal was admissible where it was needed to avoid an adverse inference against the Crown if the Crown failed to explain the reasons for not giving the requested polygraph test - See paragraphs 13 to 25.

Cases Noticed:

R. v. Schama; R. v. Abramovitch (1914), 11 Cr. App. Rep. 45, refd to. [para. 9].

Richler v. The King, [1939] S.C.R. 101, refd to. [para. 10].

Tremblay v. The Queen, [1969] S.C.R. 431, refd to. [para. 10].

R. v. Newton (1976), 8 N.R. 431; 34 C.R.N.S. 161 (S.C.C.), refd to. [para. 10].

R. v. Nickerson (1978), 37 C.C.C.(2d) 337 (N.S.C.A.), refd to. [para. 11].

R. v. Cooper (1964), 49 M.P.R. 7 (N.S.C.A.), refd to. [para. 11].

R. v. Phillion (1977), 14 N.R. 371; 33 C.C.C.(2d) 535 (S.C.C.), dist. [para. 15].

R. v. Marcoux and Solomon (1976), 4 N.R. 64; 24 C.C.C.(2d) 1 (S.C.C.), consd. [para. 18].

R. v. Fyfe (1984), 57 A.R. 357; 7 C.C.C.(3d) 284 (N.W.T.C.A.), disagreed with [para. 21].

R. v. Demeter (1976), 25 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 313(a).

Counsel:

Lou Ann Thomson, for the appellant;

Kenneth W.F. Fiske, for the respondent.

This appeal was heard on October 15, 1985, before Macdonald, Pace and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On November 15, 1985, Pace, J.A., delivered the following judgment for the Court of Appeal.