C.A.C. No. 102124
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Robichaud, 1994 NSCA 158
Hallett, Chipman and Roscoe, JJ.A.
BETWEEN:
MICHAEL JOSEPH ROBICHAUD ) Craig Garson
) for the Appellant
Appellant )
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- and - )
) Paula R. Taylor
) for the Respondent
HER MAJESTY THE QUEEN )
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Respondent ) Appeal Heard:
) September 15, 1994
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) Judgment Delivered:
) October 18, 1994
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THE COURT: Appeal allowed and a new trial ordered per reasons for judgment of Hallett, J.A.; Chipman and Roscoe, JJ.A. concurring.
HALLETT, J.A.
The appellant was convicted of having possession of cocaine on November 27, 1992, for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1985, Chapter N-1. At trial, while acknowledging the possession of cocaine, the appellant testified it was for his own use and not for trafficking. The following items were seized from the appellant pursuant to search warrants:
- a so-called "score sheet" found in his wallet
- a set of scales which the appellant said was used for weighing gun powder for ammunition
- a stack of note paper consistent with the paper used to wrap six decks of cocaine
- a total of 18.5 grams of cocaine; six decks of cocaine were packed in decks of .9 grams, .5 grams and .4 grams, the remainder of the cocaine was located in the film canister found in the pocket of the appellant's jacket.
Evidence was given that during a two hour period while the residence of the appellant was under surveillance nine cars came to the house.
A police officer testified that from his experience in drug investigations he was of the opinion that the evidence indicated the appellant possessed the cocaine for the purpose of trafficking.
The appellant testified that he had a cocaine habit averaging two grams per day for a period of 180 days during 1992. He would purchase the cocaine for between $40.00 and $50.00 per gram. The appellant also admitted that he was having a $30,000.00 addition put on his house and had a $12,000.00 Harley Davison purchased the year before. He testified that both of these had been financed by his father. He also testified to owning between $18,000.00 and $25,000.00 of photographic equipment. He testified to owing an individual $12,555.00 for the purchase of drugs. The appellant is a clam digger. He testified he was a part time photographer but could not say how much money he earned from that enterprise. His declared income for income tax purposes was around $20,000.00 a year. When cross-examined about the score sheets he acknowledged that many of the names and numbers related to drug debts owed to him. However, he denied that the drugs that were found in his possession pursuant to the search warrants were for the purpose of trafficking.
In a short oral decision finding the appellant guilty the learned trial judge stated:
" The evidence before the Court obtained by the investigating officer under the search warrants that the Court ruled valid after the voir dire clearly indicate that Michael Joseph Robichaud was in possession of a narcotic, cocaine, a total of 18.4 grams of cocaine found on his person by Constable Bidal.
The cocaine was in prepared decks, deck being the term used for the small envelope created by folding paper and 14.8 grams in a small 35 millimetre film canister.
The defence acknowledges possession of the cocaine by the defendant, Robichaud, but not for the purpose of trafficking.
Evidence was called by the defendant to establish that cocaine was for personal use and the defendant is now a recovering cocaine addict. The defence ... defendant (inaudible) evidence to establish the score sheet of assorted names related to prior debts originating when he did use narcotics.
Scales found were used for the preparation of gun powder for ammunition. And the pads of deck paper, of a similar texture and colour to the deck papers used to wrap the drug found in the possession of the defendant, was simply a coincidence according to the defendant.
There's evidence both on the voir dire and in the direct evidence that a number of additional motor vehicle, 9 in number, that attended at the residence of the defendant over the short two hour period while the residence of the defendant, Robichaud, was under surveillance.
On the totality of the evidence the Court does not accept the explanation of the defendant, Robichaud, that the drug cocaine, found in his possession, was for his own use. The vehicular traffic, the packaging, the presence of scales and deck papers, the score sheet indicate to the contrary. Having said that the Court finds the defendant guilty of the offence as charged."
Counsel for the appellant asserts the learned trial judge misdirected himself on the principle of proof beyond a reasonable doubt by casting a burden of proof upon the appellant. In support of this assertion counsel relies on the following excerpts from the learned trial judge's decision:
" Evidence was called by the Defendant to establish that cocaine was for personal use and the Defendant is now a recovering cocaine addict.
The defence ... Defendant (inaudible) evidence to establish the score sheet of assorted names related to prior debts originating when he did use narcotics.
On the totality of the evidence the Court does not accept the explanation of the defendant, Robichaud, that the drug cocaine, found in his possession, was for his own use. "
The Crown takes the position that it was not necessary for the learned trial judge to demonstrate that he knew that the accused's possession for the purpose of trafficking would have to be proven beyond a reasonable doubt. The Crown relies on a statement in R. v. Burns, [1994] 1 S.C.R. 656 (an appeal pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 that the verdict in that case was unreasonable) in which the Court stated:
" Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith, [1990] 1 S.C.R. 991, affirming (1989), 95 A.R. 304, and Macdonald v. The Queen, [1977] 2 S.C.R. 665. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict." (emphasis added)
That statement has relevance to our considerations even though we are dealing with an appeal under s. 686(1)(a)(ii).
In R. v. Gushue (1992), 117 N.S.R. (2d) 152 this Court, in dealing with an appeal from conviction of the appellant for a sexual offence which revolved around the issue of credibility as between the evidence of the complainant and the appellant, stated:
" A review of the record and of this decision persuades us that the trial judge clearly regarded the case as a matter of choice between the evidence of the complainant and her mother on the one hand and that of the appellant on the other. No reference was made in the decision to the obvious fact that the burden was on the Crown to prove the charge beyond a reasonable doubt. While we are satisfied that the trial judge must have been well aware of this requirement, the failure to refer to the third alternative in the credibility contest - namely that without believing the appellant, the court might be left with a reasonable doubt - is in these circumstances fatal to the conviction. There is a danger here that the court asked itself the wrong question: that is which story was correct, rather than whether the Crown had proved its case beyond a reasonable doubt. See R. v. Cooke (1988), 83 N.S.R. (2d) 274; 210 A.P.R. 274 (C.A.); R. v. Nadeau, [1984] 2 S.C.R. 570; 56 N.R. 130 (S.C.C.); R. v. K. (F.) (1990), 73 O.R. (2d) 480 (C.A.); R. v. J.G.N. (1992), 78 Man. R. (2d) 303; 16 W.A.C. 303; 73 C.C.C. (3d) 381 (C.A.); R. v. K. (V.) (1991), 68 C.C.C. (3d) 18 (B.C.C.A.)."
In Fickes v. R., a decision of this Court rendered on August 4, 1994, and as yet unreported, the Court reviewed the duties of a trial judge with respect to directing himself on the burden of proof. Chipman, J.A. stated:
" Raised during the argument in this appeal was the question whether the Court misdirected itself by asking not whether the Crown had proved the case beyond a reasonable doubt, but which "story" - ie. that of the complainant or of the appellant - was true. Reference was made to R. v. W.[D.] (1991), 1 S.C.R. 742 and to the recent decisions in this Court of R. v. Gushue (1992), 117 N.S.R. (2d) 152 and R. v. Brown (1994), as yet unreported, C.A.C. No. 02968.
Here the trial judge, in a brief oral decision immediately following argument in which both counsel mentioned the Crown's burden to prove the case beyond a reasonable doubt, did not make specific reference to that burden. It is not necessary for a trial judge to do so. One can presume that trial judges are aware of this golden thread which runs throughout the criminal law and which, as I have said, was mentioned by both counsel in argument immediately preceding the decision.
Great care must of course be taken by a judge directing a jury to not only refer to the principle of reasonable doubt but where there is conflicting evidence, to make clear that it is not a matter of choice between the inconsistent versions. The correct application of the burden of proof in a case of conflicting evidence requires that the accused be found not guilty if his or her evidence is believed or, if not believed, there is still a reasonable doubt as to guilt considering the evidence as a whole.
As I have said it is not necessary for a judge sitting alone to verbalize this basic analysis. However, in cases such as Gushue and Brown new trials were ordered, not because the judge failed to state the correct formula. New trials resulted not because of what the judge did not say but because of what the judge did say. This Court was concerned in each case that the Court had asked itself the wrong question, that is to say, which version was correct. A further distinction between those cases and this is that here there were only two witnesses and no additional evidence for the Court to weigh.
Obviously in each case a careful review of the trial judge's reasoning is warranted. A new trial will result if it appears that the trial court put to itself the wrong question. It will not result simply because the trial court did not mention reasonable doubt or simply because the trial court made a very clear credibility finding in favour of the Crown's witness or witnesses against the defence witness or witnesses.
An analysis of the trial judge's reasons here leads to the conclusion that the judge did not put the wrong question. The judge simply made a decision. The evidence of the complainant was accepted and that of the appellant rejected. There was no doubt. As the Court said, that which the complainant said happened, did happen. A finding in those terms made by a judge who has just heard argument from both counsel about reasonable doubt and who is presumed to know the law cannot here be faulted.
This decision leaves no such concern as did the decisions in Gushue and Brown."
In R. v. W.(D.), [1991] 1 S.C.R. 742 the appellant was convicted of sexual assault after a trial that pitted the credibility of the accused against that of the complainant. The main instruction to the jury was relatively short; the jury was properly instructed on the burden of proof. On a recharge to the jury the learned trial judge characterized the issue for the jury was to determine whether they believed the complainant or the appellant. The majority of the Supreme Court of Canada in dismissing the accused's appeal held that, in all the circumstances and notwithstanding the error in the recharge, the charge read as a whole adequately instructed the jury that if they had a reasonable doubt as to the guilt of the accused they must acquit. The minority were of the opinion that it was impossible to determine whether the jury would have concluded that the recharge was incorrect.
Insofar as R. v. W. (D.) involved a jury trial the decision of the Supreme Court of Canada is only relevant to show that courts of appeal should consider the judge's instruction to the jury as a whole and not focus on one error. The decision of the majority evidences a willingness not to pick apart jury instructions for isolated error.
In Fickes the trial judge, in rendering his decision, merely failed to state that the Crown had proven the charge beyond a reasonable doubt. Clearly it can be presumed that a trial judge understands this basic concept of the criminal law. In the appeal we have under consideration the issue is complicated by the fact that prior to the decision of the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, s. 8 of the Narcotic Control Act required an accused, if found to be in possession of a narcotic, to establish on a balance of probabilities that he was not in possession for the purpose of trafficking. The Oakes decision held s. 8 to be unconstitutional as offending the presumption of innocence as guaranteed by s. 11(d) of the Charter. Section 8 of the Narcotic Control Act still appears in annotated editions of the Criminal Code. Although there is a Note that the section has been found to be unconstitutional the section is there to be read.
The Crown argues that the trial judge's language was merely imprecise and when viewed in context the learned trial judge was not placing a burden on the appellant but was merely acknowledging the practical necessity for the appellant to respond to the Crown's case or stand convicted. The Crown argues that accordingly he did not make a wrong decision on a question of law.
Just prior to rendering his oral decision after thanking counsel for the excellent briefs they had submitted following the trial the learned trial judge stated:
" The Provincial Court does not often hear these trials and it's been a distinct pleasure for me to have the privilege of adjudicating the matter so ably presented."
Given the words used by the learned trial judge in his decision coupled with (i) the change in law respecting the burden of proof in prosecutions under s. 4(2) of the Narcotic Control Act; (ii) the fact that s. 8 of the Act still appears in the annotated edition of the Criminal Code, and (iii) the lack of experience of the trial judge with respect to narcotic offences, we cannot presume the learned trial judge properly understood or correctly applied the law, notwithstanding that he had received written briefs from counsel and notwithstanding the fact that Crown counsel made reference immediately prior to the rendering of the oral decision that the Crown was required to prove beyond a reasonable doubt that the possession of the narcotic by the appellant was for the purpose of trafficking. In the last paragraph of his decision the learned trial judge, in effect, stated that the circumstantial evidence indicated that the appellant was in possession for the purpose of trafficking. These words, although following his finding that he would not accept the appellant's explanation as to his possession, indicate the trial judge did not apply the correct burden of proof. Under the circumstances it would not be safe to assume he did.
The Crown argues that even if we decide that the trial judge erred there was no miscarriage of justice and the appeal should be dismissed.
It is therefore necessary, in view of the strong circumstantial evidence against the appellant to consider whether the appeal should be dismissed by the application of the provision of s. 686(1)(b)(iii) of the Code which provides:
" 686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(b) may dismiss the appeal where
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or...."
In R. v. Beals (1994), 130 N.S.R. (2d) 177 I reviewed the decision of the Supreme Court of Canada in R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R. (2d) 1; 332 A.P.R. 1; 79 C.C.C. (3d) 112 and concluded that the correct question for a court of appeal to ask itself in considering whether or not to dismiss an appeal pursuant to s. 686(1)(b)(iii) is whether a trial judge or jury applying the law correctly to the evidence could not possibly entertain a reasonable doubt as to the guilt of the accused. It is what I would refer to as the hypothetical judge or jury test as opposed to considering whether there was any reasonable possibility that the verdict of the judge or jury that heard the case would have been different had the error in law not been made.
In R. v. Bevan, [1993] 82 C.C.C. (3d) 310, a decision of the Supreme Court of Canada, rendered subsequent to its decision in R. v. F.F.B. and the other decisions of the Supreme Court of Canada referred to therein, Major J. for the majority had occasion to consider the proper question an appeal court should ask itself in considering whether or not to dismiss an appeal by the application of s. 686(1)(b)(iii). Major J. stated at p. 328:
" 4. Should the curative provision be applied in this case?
The question to be asked in determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge's error is whether "the verdict would necessarily have been the same if such error had not occurred": see Colpitts v. The Queen, [1966] 1 C.C.C. 146 at p. 149, 52 D.L.R. (2d) 416 at p. 419, [1965] S.C.R. 739, per Cartwright J. (as he then was); R. v. Wildman (1984), 14 C.C.C. (3d) 321 at p. 335, 12 D.L.R. (4th) 641 at p. 655, [1984] 2 S.C.R. 311. This test has also been expressed in terms of whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused: see Colpitts, per Spence J., at p. 161 C.C.C., p. 430 D.L.R.; R. v. S. (P.L.) (1991), 64 C.C.C. (3d) 193 at p. 200, [1991] 1 S.C.R. 909, S.C.R. (4th) 351, per Sopinka J.; R. v. Broyles (1991), 68 C.C.C. (3d) 308 at p. 328, [1991] 3 S.C.R. 595, 9 C.R. (4th) 1; R. v. B. (F.F.) (1993), 79 C.C.C. (3d) 112 at pp. 140-1, [1993] 1 S.C.R. 697, 18 C.R. (4th) 261, per Iacobucci J. I do not interpret these two approaches as being intended to convey different meanings. Under either approach, the task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made."
In view of the words used by the learned trial judge in rendering his decision and in spite of the rejection of the accused's explanation as to his possession I am not satisfied that the verdict would necessarily have been the same if he had applied the correct burden of proof. In this case it was not simply a failure of the trial judge to express his opinion that he found the accused guilty beyond a reasonable doubt, his words indicate he applied a much lower standard of proof. It is impossible to say he may not have had a reasonable doubt had he applied the correct burden of proof. I cannot say with any confidence that there has not been a miscarriage of justice. Accordingly, the appeal ought to be allowed and a new trial ordered notwithstanding the strong circumstantial evidence against the appellant.
Hallett, J.A.
Concurred in:
Chipman, J.A.
Roscoe, J.A.
C.A.C. No. 102124
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
MICHAEL JOSEPH ROBICHAUD
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Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
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) HALLETT, J.A.
Respondent )
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