PRENDERGAST C.J.M.:—This is a case stated by Magistrate Murray after convicting the appellant for having in his possession parts of a still suitable for the manufacture of spirits without having given notice thereof as required by the Excise Act, 1934 (Can.), e. 52.
The learned Magistrate had previously convicted one Paslow- ski for the same offence arising out of the same circumstances, on evidence that the R.C.M.P., after following a truck a long distance on the streets of Winnipeg, found it stopped at Middlechurch with the accused seated in it, and containing parts of a still, together with 20 bags of sugar, 20 pounds of yeast and 3 gallons of yeast food.
At the appellant’s trial, it was shown that he was not on nor near the truck at the moment that the police appeared as aforesaid, but that. he presently came up to it after crossing a field in a Plymouth ear driven by his brother Paul and that, after alighting from it with a can of gasoline, he admitted to the police that he was the driver of the truck.
The learned counsel for the accused argued on those facts, that the learned Magistrate, after holding that Paslowski was in possession of the truck and contents when the appellant was not present, erred in holding that the latter was also in possession and that it could not be the duty of both to give the notice required under s. 164(1) (e).
But, besides the appellant’s admission to the police, there are other material facts than those stated by the learned counsel in his presentment and the case is not governed by the said section alone.
It was the appellant who rented the truck in Winnipeg, getting at the same time a can to fill the radiator. The truck was then taken opposite a grocery where it was observed by the police that large quantities of sugar were being loaded on it, which was apparently what first aroused their suspicion. There is no evidence that the parts of a still were then on the truck. Paslowski however was there and so was Paul Tesluk in a Plymouth car, the same car that the appellant later alighted from at Middlechurch. When the truck started, it was driven by the appellant himself and Paslowski must have been with him as the facts first above set forth show. When the appellant left the truck is not in evidence, but it is a fair conclusion on his admission and on all the facts, that it was at Middlechurch when, for some reason, he found it more convenient to have his brother who had followed in the car; take him across the field to a place where he could get the gasoline.
Section 2, the interpretation section of the Act, has the following :
« (l) ‘possession' means not only having in one’s own personal possession, but also knowingly,
"‘(i) having in the actual possession or custody of any other person. ’’
See also s. 5 of the Code.
I would say that Paslowski’s possession constituted possession by the appellant and that, on the whole of the evidence, they were both engaged in a common venture of which the appellant was the leader.
The answer to the question in the stated case should be that the learned Magistrate was right in convicting.
DENNISTOUN and TRUEMAN J J. A., concur in the result.
Robson J.A.:—This is a case stated by Magistrate Murray at request of defendant, after conviction of defendant that he did on or about December 3, 1941, at or near Middlechurch in Manitoba, without having a licence under the Excise Act, have in his possession parts of a still suitable for the manufacture of spirits without having given notice thereof as required by the Excise Act.
Sections 130 to 137 provide for the issue of licences. Section 138 enacts that everyone about to import or make apparatus suitable for the manufacture of spirits must report in writing to the nearest collector his intention in relation thereto. Section 164 declares penalties for—
" " (1) Everyone who without having a licence under this Act, then in force,
‘‘(e) has in his possession, in any place, any such still, worm, rectifying or other apparatus, or any part or parts thereof, or any beer, wash or wort suitable for the manufacture of spirits, without having given notice thereof as required by this Act, except in eases of duly registered chemical stills of capacity not exceeding three gallons each as hereinbefore provided for, or in whose place or upon whose premises such things are found. ‘ ‘
Section 112(1) casts the burden of proof of innocence on the accused in a large number of cases, which would include this.
It seems that on December 3rd last, defendant, his brother Paul and one Paslowski, had furnished themselves with a truck, per hire, and had loaded in it 20 bags of sugar, about 20 pounds of yeast, three one-gallon tins of yeast-food, and the top portion of a cooker, with cooling tray attached, being part of an illicit still. The truck was then driven away by defendant. It had proceeded towards Middlechurch, north of Winnipeg, when it came to a stop and R.C.M. Police officers caught up with the truck. Paslowski got out. Accused was not there.
Paslowski was convicted of an offence under s. 164 and fined. and sentenced to prison as for a second offence. Then a prosecution was commenced against Steve Tesluk, the present defendant. He was convicted and a fine was imposed. He applied for a stated case.
The charge against Tesluk was that he did "‘on or about the 3rd day of December, A.D. 1941, at or near Middlechurch, in Manitoba, without having a licence under the Excise Act, have in his possession parts of a still suitable for the manufacture of spirits without having given notice thereof as required by the Excise Act . . . .”?
In À. v. Varga (1921), 65 D.L.R. 153, 36 Can. C.C. 160, it was held by the Saskatchewan Court of Appeal that in any such prosecution the onus is on the accused to show that he had the licence or had given the notice as required by sections such as are referred to above. This view was expressed also by Riddell J., in À. v. Long (1922), 38 Can. C.C. 94, 22 O.W.N. 416. He mentions the Varga case and also R, v. Ry sack (1922), 38 Can. C.C. 45, 22 O.W.N. 281.
It seems that though Steve Tesluk was not actually on or beside the truck when the police arrived, he soon afterwards came across a field towards the truck, having alighted from an automobile which had been in use on this venture. Accused was carrying a can of gasoline and admitted that he was the driver of the truck. It was argued that as Paslowski was the only one present when the police came to the truck he was the person in possession of the truck under s. 164, and that Steve Tesluk was not so in possession. The Magistrate thought otherwise and convicted, subject to this ease. It is clear that it was a common venture by at least Paslowski and Steve Tesluk, and that each was the instrument of the group engaged in the enterprise. For that reason I think the Magistrate should be advised that he was right in holding as he did.
Other points were raised, but they are largely met by the cases cited above. I think that in cl. (e) of s. 164(1), above quoted, the phrase "‘in any place” must receive a wider interpretation than the word ‘‘place’’ requires where it latterly appears in the clause.
The question should be answered as stated.
RICHARDS J.A., concurs in the result.
Appeal dismissed.