Regina v. Meloche, 1970 CanLII 313 (ON CA)
Regina v. Meloche
[1970] 3 O.R. 798-803
ONTARIO
[COURT OF APPEAL]
SCHROEDER, KELLY and EVANS, JJ.A.
10th JUNE 1970.
Criminal law -- Theft -- Ownership -- Information alleging ownership in Steinberg's Miracle Mart -- Whether Crown proved goods stolen were the property of named owner -- Whether necessary to establish corporation so named existed and was capable of owning property -- Cr. Code, ss. 269, 498, 2(15).
On a charge of theft of goods from a named corporation, once the Crown has made out a prima facie case by establishing de facto possession of the goods in question in a firm known to the public by the name mentioned in the information that firm's ownership of the property stands unassailed unless put into issue. If the issue is raised, it then becomes incumbent on the Crown to prove the name of the owner of the goods with precision. It is not a sufficient objection to an information that a company was therein described without the addition of the word "limited" where the omission has not been shown to have misled the accused in any way. It is also not necessary for the Crown to establish the corporate status of the owner of the property or that the corporation was in good standing on the date of the theft.
APPEAL by the Crown against a verdict of acquittal on a charge of theft under $50 of the property of Steinberg's Miracle Mart.
The judgment of the Court was delivered by
[R. v. Pelletier, 1969 CanLII 998 (NB CA), [1970] 3 C.C.C. 387, 2 N.B.R. (2d) 179; R. v. Schemenaur (1968), 1967 CanLII 844 (BC CA), 65 W.W.R. 425; R. v. Sheppard, 1949 CanLII 342 (ON CA), [1949] O.W.N. 727, 95 C.C.C. 298, 9 C.R. 26, 11 C.P.R. 65, aprvd; R. v. Bagshaw, 1970 CanLII 39 (ON CA), [1970] 3 O.R. 3, [1970] 4 C.C.C. 193, 10 C.R.N.S. 245, apld; R. V. Carswell (1916), 1916 CanLII 379 (AB CA), 26 C.C.C. 288, 29 D.L.R. 589, 10 Alta. L.R. 76, 10 W.W.R. 1027; R. v. Cassils, 1932 CanLII 358 (AB CA), 57 C.C.C. 366, 26 Alta. L.R. 180, [1932] 1 W.W.R. 572; Hannah v. Peel, [1945] 2 All E.R. 288; Heriteau et al. v. W. D. Morris Realty Ltd., 1943 CanLII 71 (ON SC), [1943] O.R. 724, [1944] 1 D.L.R. 28; Tilden-Rent-A-Car v. Keffer, 1964 CanLII 212 (ON SC), [1964] 2 O.R. 80, refd to]
A.G. Campbell, for the Crown, appellant. Ronald G. Thomas,
for respondent.
SCHROEDER, J.A.: -- The Attorney-General for Ontario appeals upon a ground involving a question of law alone against the acquittal of the respondent by J.P. McMahon, Prov.Ct.J., of the Provincial Court, Criminal Division, of the following charge:
That Catherine [sic] Anne Meloche, 227 Sacred Heart Drive of the City of Windsor in the County of Essex at the City of Windsor in the County of Essex, on the 14th day of January A.D. 1970 did commit theft of a brassiere, eye lash curler, no smear mascara, eye liner, two tubes of lip stick, eye brow pencil, and one pair of nylon stockings, of a total value not exceeding fifty dollars, the property of Steinberg's Miracle Mart contrary to Sec. 280 sub. (b) Criminal Code.
There is an abundance of evidence to establish that the respondent law society stole the articles charged from counters on the store premises located at 200 Chatham St., in Windsor, operated under the name of Steinberg's Miracle Mart. The chief witness for the Crown, Violet Kimmerly, stated that she was on the premises on the day in question performing her duties as a security officer. To the question "At which Steinberg's is this?", she replied, "Miracle Mart situated at 200 Chatham Street in Windsor."
Detective Langlois, who took the respondent law society into custody, stated that he attended the said premises, in company with detective Bouliane, which he referred to as "Steinberg's Miracle Mart". It appears from an incriminating statement signed by the respondent, which was admitted as a voluntary statement, that the following warning was given to her;
You are charged that at the City of Windsor on the 14th day of January, 1970, did steal a brassiere, eye lash curler, no smear mascara, eye liner, two tubes of lip stick, eye brow pencil, and a pair of nylon stockings of a total value not exceeding $50.00, the property of Steinberg's Limited Department Store situate at 200 Chatham Street East.
And in the statement the accused admitted that she understood the charge and understood the caution.
In the course of giving her evidence, Mrs. Kimmerly, the security officer, examined the contents of a bag and stolen law firm boxes filed as an exhibit and pointed out that there was a price tag on the hosiery in question bearing the words "Miracle Mart Steinberg's". At the close of the Crown's case, counsel for the respondent, without having elected to call or not to call evidence, made a motion for dismissal of the charge on the ground that the Crown had not established that the goods alleged to have been stolen were the property of Steinberg's Miracle Mart, and that it was not proven that there was a corporation so named in existence which was capable of owning property. In dismissing the charge the Provincial Court Judge stated:
Now there is a building in the City of Windsor in which commercial activity is carried on, referred to as Steinberg's Miracle Mart. I think I could probably take judicial notice in the local newspaper with reference to Steinberg's Miracle Mart. Mrs. Kimmerly stated she was a security officer at Steinber's Miracle Mart. So there is no question such a building exists, at least in which commercial activity is carried on. However, this does not get over the point that the goods in question belong to Steinberg's Miracle Mart. If it had been described in the information as Steinberg's Miracle Mart Limited, then I can presume I could take judicial notice this was a limited company capable of owning property. This is not the case. It is merely Steinberg's Miracle Mart and I do not know of any right as such a described commercial activity to own legally the property described in the information. People can carry on business under a trade name, but the ownership in that business is vested in the person carrying on the business. Many partnerships, for example, are registered whereby John Jones and Jim Smith carry on business under the name of John-Jim, but everything is owned by John Jones and Jim Smith, not John & Jim. I think this is the same situation that existed, at least in the wording of the information and on the evidence before me. Certainly, there is a reasonable doubt in my mind as to whether or not Steinberg's Miracle Mart has the capacity to own anything. There is certainly no evidence before the Court that they do have such a capacity. The charge will, therefore, be marked dismissed.
With deference, I am unable to agree with the view expressed by the learned Provincial Court Judge. The information alleges that the subject-matter of the theft as charged was owned by "Steinberg's Miracle Mart". 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 persons's: R. v. Carswell (1916), 1916 CanLII 379 (AB CA), 26 C.C.C. 288, 29 D.L.R. 589, 10 Alta. L.R. 76; R. v. Cassils, 1932 CanLII 358 (AB CA), 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 CanLII 39 (ON CA), [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. Counsel for the Crown has assumed that burden in the present case and contends that while there is no direct evidence of ownership as charged, there is circumstantial evidence from which ownership by Steinberg's Miracle Mart of the property mentioned in the information can be found.
It is well settled that ownership as alleged in the indictment can be proven not only by direct evidence but by circumstantial evidence. It was so held in R. v. Bagshaw, supra. The Crown is, of course, also entitled to rely upon the provisions of s. 498 of the Criminal Code, reading as follows:
498. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it.
It is stated in Wigmore on Evidence, 3rd ed., vol. 9, p. 425, para. 2515, that where title to land becomes material, the fact of present possession alone may serve to create a presumption of ownership; the emphasis being on the occupation, or appearance of ownership, and not on the documentary sources of the claim; and the rule serving merely to shift to the opponent the second burden, or duty of producing some evidence to the contrary. The author states that the same rule serves in the evidencing of ownership of personalty, particularly in cases of larceny or robbery, where a dispute of onwership is rare.
The same rule is dealt with in 29 Hals., 3rd ed., pp. 369-70, para. 731, where it is stated:
731. Possession prima facie title. The prima facie presumption of law is that the person who has de facto possession has the property, and accordingly such possession is protected, whatever its origin, against all who cannot prove a superior title. This rule applies equally in criminal and civil matters. Thus a person in actual or apparent possession, but without the right to possession, has, as against a stranger or a wrongdoer, all the rights and remedies of a person entitled to and able to prove a present right to possession.
Further, in para. 733, at p. 370, it is stated:
Until a superior title is shown, de facto possession is conclusive evidence of the right to possess. The result is that a stranger or wrongdoer cannot defend himself by proving the right of a third party, unless he can show that he is acting on behalf of such third party or derives title from him.
In 15 Hals., 3rd ed., pp. 284-5, para. 516, dealing with evidence, there is a reference to numerous cases which establish that possession is not only prima facie evidence of ownership, but it is also evidence of the highest title to the property in question, a rule applicable to both real and personal property.
It has frequently been stated that possession imports owernship or is prima facie evidence of ownerhsip. This has given rise to the old adage, "possession is nine-tenths of the law". The rule flowing from physical possession of personalty was applied in Hannah v. Peel, [1945] 2 All E.R. 288.
The Court of Appeal of New Brunswick dealt with the point raised in the present case in R. v. Pelletier, 1969 CanLII 998 (NB CA), [1970] 3 C.C.C. 387, 2 N.B.R. (2d) 179. In that case the accused at night had assisted another in loading a coil of copper wire into the trunk of the accused man's car under circumstances which the trial Judge found did not justify an honest belief on his part that the roll of wire was junk, and it was established that the roll of wire was taken from a dump on the property of Fraser Companies Limited of Edmundston, New Brunswick. It was held that while the ownership of the goods alleged to have been stolen must be proved, the use of informal or inaccurate names by witnesses was sufficient and that the use of such informal names could not have misled or prejudiced the accused; that it was not incumbent upon the Crown to prove either the corporate status of the owner of the property or that the corporation was in good standing on the date of the theft. Reference was made in the judgment of Hughes, J.A., to the judgment of the British Columbia Court of Appeal in R. v. Schemenaur (1968), 1967 CanLII 844 (BC CA), 65 W.W.R. 425, in which it was held that where the information alleged that the property stolen was that of Kelly Douglas & Co. Ltd., and the witnesses referred to the owner as "Kelly Douglas" or "Kelly Douglas Company" only, lack of strict proof of ownership was not fatal to the conviction. Norris, J.A., delivered the judgment of the Court, stating at p. 426: "It is sufficient if the evidence in reasonable terms identifies the owner with the person alleged in the charge to be the owner."
Norris, J.A., also referred to R. v. Sheppard, 1949 CanLII 342 (ON CA), [1949] O.W.N. 727, 95 C.C.C. 298, 9 C.R. 26, a judgment of this Court. Writing the judgment of the Court in the Sheppard case, Roach, J.A., referred at p. 729 to s. 855(1)(g) of the Criminal Code, R.S.C. 1927, c. 36, now s. 493(g), which provides that no count in an indictment is insufficent by reason only that:
(g) it does not name or describe with precision any person, place or thing,
Applying that provision, he held that it was not a sufficient objection to an indictment that a company was therein described without addition of the word "limited" where that omission was not shown to have misled the accused. In the Schemenaur case, Norris, J.A., stated that although the Sheppared case involved a charge of forgery, the reasoning could be adopted by analogy, since there was no prejudice and there was no doubt at all that the identification of the Kelly Douglas Company with the Kelly Douglas Company Limited was complete.
I am entirely in agreement with the reasoning in the cases above mentioned and the conclusions based thereon. I have not the slightest doubt that this respondent was not in any way misled. She knew that she was charged with the theft of goods owned by a firm which advertised itself to the public as "Steinberg's Miracle Mart" and it could have made no difference to her whether the owner was described as Steinberg's Miracle Mart, Steinberg's Limited, or Steinberg's Limited Department Store. I refer also to s. 2(15) of the Criminal Code, which reads as follows:
(15) "every one," "person," "owner," and similar expressions include Her Majesty and public bodies, bodies corporate, societies, companies and inhabitants of counties, parishes, municipalities or other districts in relation to the acts and things that they are capable of doing and owning respectively;
It has been recognized in Heriteau et al. v. W. D. Morris Realty Ltd., 1943 CanLII 71 (ON SC), [1943] O.R. 724, [1944] 1 D.L.R. 28, and in Tilden-Rent-A-Car v. Keffer, 1964 CanLII 212 (ON SC), [1964] 2 O.R. 80, that a corporation may carry on business and own property under various names. The evidence does not deal with the question, but it may well be that here an incorporated company chose to operate this particular store under the trade name mentioned in the inforamtion.
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.
In the result, the Crown's appeal against acquittal must be allowed and the order of acquittal set aside. Since the respondent was not put to her election and was not afforded the opportunity to present a defence or answer to the charge, it is directed that there shall be a new trial upon the pending information.
Appeal allowed; new trial ordered.
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