R. v. Yung Chan, 2003 CanLII 52165 (ON CA)
[24] Put another way, the appellant contends that one gram of heroin is not a traffickable quantity. Accordingly, proof that he intended to traffic a larger quantity cannot constitute proof that he intended to traffic the single gram that he possessed. Possession of a single gram of heroin therefore is not sufficient to constitute the actus reus of the offence of possession of a controlled substance for the purpose of trafficking. Properly analyzed, the [page583] transaction can only be treated as an attempt to possess heroin for the purpose of trafficking.
[27] First, in my view, possession of a particular quantity of a controlled substance is not part of the actus reus of the offence of possession for the purpose of trafficking.
[30] Section 5(2) of the Controlled Drugs and Substances Act sets out two components of the actus reus of the offence that it creates: (i) that the accused possess a substance; and (ii) that the substance possessed actually be a substance named in one of the schedules to the act.
[31] The relevant authorities establish that the mens rea of the offence includes knowledge of the nature of the substance in the sense that an accused person must believe that it is a controlled substance[Note 3]. Further, s. 5(2) specifically requires that the accused person possess the controlled substance for the purpose of trafficking.
[32] Notably however, none of s. 5(2), the definition of "traffic", or the relevant authorities refers to quantity or to knowledge of a [page584] particular quantity as an element of the offence or as a component of the actus reus.
[33] That said, the quantity of a controlled substance that an accused person possesses often plays a role in determining whether an inference of possession for the purpose of trafficking should be drawn. However, the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence.
[34] As noted, neither s. 5(2) of the Controlled Drugs and Substances Act nor the definition of traffic, nor the relevant authorities stipulate that quantity is a part of the actus reus of the offence. Moreover, as a matter of logic, the fact that a person in possession of illicit drugs would or would not traffic the particular quantity of drug that he possesses should not govern the factual question of purpose. For example, the fact that a retailer or wholesaler of illicit drugs would not generally traffic less than a particular quantity should not preclude a conviction for possession for the purpose of trafficking where it is established that that individual planned to add to the smaller quantity so that he would have a quantity suitable for trafficking.
[35] Accordingly, although relevant to proof of an accused person's intent, I conclude that the quantity of a controlled substance that an accused person possesses does not form part of the actus reus of the offence of possession for the purpose of trafficking.
[36] Second, I specifically reject the appellant's submission that there is any issue concerning whether his intent in relation to the larger quantity he arranged to purchase is transferable to a single gram or that the trial judge made any error in finding that he possessed heroin for the purpose of trafficking.
[37] The trial judge based his finding concerning the appellant's purpose on the quantity of heroin that the appellant anticipated receiving as well as the circumstances surrounding the transaction that the appellant arranged. It is implicit in the trial judge's reasons that he concluded that the fact that the appellant may have been mistaken about the quantity of heroin that was in the controlled delivery package did not detract from the appellant's purpose for possessing that heroin at the moment when he acquired it.
[38] I see no error in this approach.
[39] In United States of America v. Dynar [Note 4], the Supreme Court of Canada explained the role of belief and the truth of an actor's belief in the elements of a criminal offence. In particular, Cory [page585] and Iacobucci JJ. noted that because mens rea is the subjective element of a crime, it consists of an actor's belief, rather than the truth of that belief. On the other hand, the truth of an actor's belief can be "one of the attendant circumstances that is required if the actus reus [of the particular offence] is to be completed". This occurs, for example, when knowledge of a particular matter is an element of the offence. Paragraphs 68 to 72 of their reasons warrant full review:
Both s. 462.31(1) of the Criminal Code and s. 19.2(1) of the Narcotic Control Act require knowledge that the property being laundered is the proceeds of crime. It is tempting to think that knowledge is therefore the mens rea of these offences. But "mens rea" denotes a mental state. Mens rea is the subjective element of a crime. See Williams' Textbook of Criminal Law . . . at p. 71. Knowledge is not subjective, or, more accurately, it is not entirely subjective.
As we have already said, knowledge, for legal purposes, is true belief. Knowledge therefore has two components -- truth and belief -- and of these, only belief is mental or subjective. Truth is objective, or at least consists in the correspondence of a proposition or mental state to objective reality. Accordingly, truth, which is a state of affairs in the external world that does not vary with the intention of the accused, cannot be a part of mens rea . . .
The truth of an actor's belief that certain monies are the proceeds of crime is something different from the belief itself. That the belief is true is one of the attendant circumstances that is required if the actus reus is to be completed. In other words, the act of converting the proceeds of crime presupposes the existence of some money that is in truth the proceeds of the offence.
In this, the money-laundering offences are no different from other offences. Murder is the intentional killing of a person. Because a person cannot be killed who is not alive, and because a killing, if [it] is to be murder must be intentional, it follows that a successful murderer must believe that his victim is alive . . . [t]hus, the successful commission of the offence of murder presupposes both a belief that the victim is alive just before the deadly act occurs and the actual vitality of the victim at that moment. Both truth and belief are required. Therefore, knowledge is required. But this does not mean that the vitality of the victim is part of the mens rea of the offence of murder. Instead, it is an attendant circumstance that makes possible the completion of the actus reus, which is the killing of a person.
In general, the successful commission of any offence presupposes a certain coincidence of circumstances. But these circumstances do not enter into the mens rea of the offence. As one author observes, it is important "to keep separate the intention of the accused and the circumstances as they really were".
(Citation omitted)
[40] Applying the principles set out in Dynar to the facts of this case, because mens rea consists of an actor's belief rather than the truth of that belief, the trial judge was entitled to rely on the evidence concerning the quantity of heroin the appellant expected to receive to determine the appellant's purpose for possessing heroin [page586] at the moment he received the controlled delivery package. Put another way, the truth of the appellant's belief about the quantity of heroin in the controlled delivery package when he acquired it was irrelevant in determining his purpose at that moment.
[41] Further, because the specific quantity, or knowledge of the true quantity, of a controlled substance that a person possesses is not "one of the attendant circumstances" required for completion of the actus reus of possession for the purpose of trafficking, the accuracy of the appellant's belief about the quantity of heroin in the controlled delivery package was also irrelevant to the question of whether the offence was complete.
Aucun commentaire:
Publier un commentaire