I Cite as: R. v. Jackson, 1990 NSCA 99 . S. C. C. No. 0 2 3 2 9 l IN THE SUPREME COURT OF NOVA SCOTIA I APPEAL DIVISION Clarke, C.J.N.S., Jones and Freeman, JJ.A. I BETWEEN: I ROBERT DOUGLAS EDWARD JACKSON The appellant appeared in person I Appellant Adrian C. Reid for the respondent I - and - Appeal Heard: December 11, 1990 I HER MAJESTY THE QUEEN Judgment Delivered: December 20, 1990 Respondent I "I THE COURT: Appeal dismissed per reasons for judgment I of Jones, J.A.; Clarke, C.J.N.S. and Freeman, J.A. concurring I I I I ~ I
I. JONES, J. A. : l This is an appeal I his conviction on a charge that he: "At or near Lawrencetown Annapolis, Nova Scotia, I 21st day of March, 1990 did unlawfully break and enter a certain place to wit: Lawrencetown Motors situate at Lawrencetown in the County I of Annapolis and did indictable of fence of Section 348(1) (b) of the I Canada. During the night I there was a break and entry I Lawrencetown Motors, a service station at Lawrencetown, Annapolis County. Entry was I which was forced open. Five or more tires, tools and equipment ~ thieves exited through a door in the paint room which was left open. The stolen I $8,000.00. Vehicles were parked I chemical toilet, a radio from a van. A car had been I paint shop and paint dust floor was covered with foot prints. I also found on paper which was lying on the floor. I On March 22, 1990, officers checked a van parked I in Wolfville. The appellant l I I by Robert Jackson against in the County of on or about the thereby commit the theft contrary to Criminal Code of of March 20 and 21, 1990 into the premises of gained through a window or six batteries, ten were stolen. The goods were valued at by the garage. A and speakers were stolen recently painted in the covered the floor. The The prints were at 11:30 p. m. police on a dead end street was the operator. Three
other men and a woman were with a dog. The individuals van contained a number of articles which were positively identified as stolen in the Motors. Some of the tools were marked with initials. The portable toilet and the the van. There was also a the van which had been cut. established that the section matched part of hose found at the station. The footwear of the men in the van was seized. An impression found on the paint floor shop matched the running shoe worn by the appellant. Two other impressions footwear worn by two of the other men in the van. The van occupied by the four men was a stolen vehicle. On March 22, 1990, van to his place of employment at establishment. His employer stated the van at that time. When they were appellant saw the dog on the the van. He said he was going to take it to the pound. The appellant was possesion of the van. Further •. present in the vehicle J had been drinking. The J break at Lawrencetown ] radio speakers were in ] section of air hose in J At the trial it was the air l l paper which was on the size and pattern of a were similar to the l ] the appellant took the ] a carpet cleaning was empty J out on the job the street and put it in ] originally charged with l investigation led to l
I • - 3 l the charge of break and entry. I break and entry charge before Provincial Court. He testified I was twenty-five years of age and has a criminal record. He was living in Dartmouth I The appellant testified that I noon on March 22 from a parking lot near his apartment building. He first observed I days before the 22nd. The first time the keys were in it. He apparently observed the I on several occasions and the keys it had been moved on the parking lot. I Mr. Jackson succumbed to the vehicle. The stolen goods recovered by the police " were in the van. He took the van to work but before I doing so he removed the goods them back in the van later I dog was a husky which he I the street. He went to a party in Dartmouth and took the dog with him in the van. I the party and they proceeded to the beer store. were all drinking heavily I drive. They had no particular destination up in Wolfville where they I The appellant denied being l entry at Lawrencetown. On I I He was tried on the Judge Nichols in the on the trial. He with" his common-law wife. he stole the van around the van two or three he saw the van van were in it al though On Thursday, the temptation and stole from the van. He put in the afternoon. The acknowledged taking from He met his friends at They and decided to go for a and wound encountered the police. involved in the break and the day he stole the van
- 4 - he removed the front license plate. put his own plates from another car on the van. plate was recovered from his van was worth twelve or thirteen thousand dollars. Rebecca Clark Ii ves with the appellant. recalled the police corning recovering the plate. She the street a couple of days before the police arrived. She thought the appellant was the break and entry. She was not aware that Mr. Jackson had the van. The appellant who the appeal contended that he break and entry. Judge Nichols reviewed convicted the appellant. The he stole the van. Within appellant was found in possession contained stolen goods f rorn doctrine of recent possession Turning to the evidence of the accused the trial judge stated: "The explanation, the based on the criminal, of the law of doctrine of recent possession, the Court must determine whether or not the explanation Mr. Jackson is credible circumstances, whether explanation, one is, which the Court sitting • He intended to J The apartment. He said the J J She to the apartment and J had picked a plate up on l home on the night of l ] appeared in person on ] was not involved in the the evidence and l appellant adrni t ted that forty-eight hours the ] of the van which the break and entry. The l was clearly applicable. J ] Court must determine given by l under the or not the, all the J I J
I. - .5 l as a jury facing this actual situation might presume to be true. I It is, as pointed out the defence, if it's I one that could reasonably the Defendant is entitled of the doubt. We are not it might reasonably be true. I Well, the Court is similarities here and I explanation given by incredible. It certainly of being believed. The the truck, that he went I area, the fact that the piece is clearly matched up Mccourt clearly indicates that this particular I truck either driven by Mr. else, was in the particular garage. The fact that the shoes are similar in design and type as I 7 as those worn on the feet of clearly established someone or shape as wearinq that size ~ in the particular area Motors in the paint shop. I The· evidence would surely Gay and Hewitt and Burke of designs had similar were in the area where I and batteries and tires more than one person to assist in the removal from the area. The I were found in the van possession of the tools truck clearly tied the truck, the van, stolen van with tools taken from Lawrencetown Motors I in Annapolis County, Nova Scotia. the portable toilet which car which was broken I Lawrencetown Motors indicates, to it, would indicate in the particular area of Lawrencetown Motors in the, short, shortly I that the Lawrencetown into. The possession the speakers which are, the evidence were purchased Mr. Arnberrnan for the I by Mr. Ionson, for the explanation is be true, then to the benefit too, .and whether or faced with so many I'm, I find the Mr. Jackson is is not capable fact that he stole in this particular of hose cl-, according to Corporal Jackson or someone area of the spown in photograph Mr. Jackson of his size footwear were of the Lawrencetown indicate that from the print type of footwear these heavy tools would require one, fact that the tools explained portion, in the back of the The toilet, came from the into on the lot of or similar that that van was thereafter the day Motors was broken of the radio parts, as indicated by by Mr. the late installation in his
- 6 truck were in the van which was to be fixed up by Mr. Whitman and Mr. Amberman for his use in the back of the van. On the evidence before satisfied that there is that the van that was. driven by Mr. was involved in the break I'm making a finding of to the charge of break Lawrencetown Motors, Annapolis Scotia." In Kowlyk v. The Queen Mcintyre, J. in delivering the decision of the majority of the Supreme Court of Canada stated at p. 12: "In summary, then, it on the cases, both English which I have referred been called the doctrine of recent possession may be succinctly stated terms. Upon proof possession of recently the trier of fact may an inference of guilt of theft or of offences incidental thereto. Where are such that a question to whether the accused was a possessor, it will be fact upon a consideration circumstances to decide inference should be drawn. possession cases the is permissive, not mandatory, explanation is offered which might reasonably be true, even though . the trier of not satisfied of its will not apply." I think it is clear the trial judge that he did explanation might reasonably an assessment of the evidence including the reliability , the, Mr. , the late J and they' re found I the Court, I'm a clear indication J Jackson and enter and guilt in relation and enter at the J County, Nova J 4 3 C. C. C. ( 3d ) 1989 ] ] is my view, based and Canadian, to, that what has ] in the following of the unexplained stolen property, - but not must -draw the circumstances J could arise as a thief or merely for the trier of ] of all the which, if either, In all recent inference of guilt l and when an fact is 11 truth, the doctrine I l from the decision of not accept that the l be true. That involved j I J
•• - 7 l of the appellant. I The explanation that the stolen vehicle was parked in the vicinity of the appellant's residence I with the keys in the ignition for two or three days, I coupled with the possession of the stolen goods including the dog, and the similarity of the footprints I at the scene would lead one to conclude that the explanation could not reasonably be true. I see no I error on the part of the trial judge in assessing the evidence and I would therefore dismiss the appeal. I I " Concurred in: I Clarke, I Freeman, J.A. I I I I I
- r -~J C A N A D A PROVINCE OF NOVA SCOTIA COUNTY OF ANNAPOLIS IN THE PROVINCIAL COUART HER MAJESTY ROBERT JACKSON ANNAPOLIS ROYAL, Nova Scotia c May 16, 1990 His Honour Judge John R Nichols CHARGE: At or near Lawrencetown of Annapolis, Nova Scotia, the 21st day unlawfully break place, to wit: situate at Lawrencetown of Annapolis, the indictable contrary to 348(l)(b). David E. Acker, Esquire, for the Prosecution Andrew Ionson, Esquire, for the Defence D E C I , . J I J THE QUEEN J -v- l l l ] in the County l on or about of March, 1990, did and enter a certain l Lawrencetown Motors, in the County and did commit therein offence of theft, l ] ] l S I 0 N 1 ~J J ]
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