R v Stewart, 2020 ABCA 252
[21] In R v Blondin, the accused had brought a scuba tank into Canada from Japan containing 23 pounds of cannabis resin. His defense at trial was that he knew there was something illegal inside but he did not know exactly what it was. He was tried by a judge and jury and found not guilty. The Crown appealed.
[22] In allowing the appeal and directing a new trial, the majority of the British Columbia Court of Appeal stated in part as follows:
Basing my opinion upon what I understand to be the principle enunciated in the several passages I have quoted, I am of the respectful opinion that the learned trial Judge erred when he instructed the jury that, in order to find Blondin guilty, they must find that he knew that the substance in the tank was cannabis resin. It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense.
…
An essential ingredient of the offence is the importation of a narcotic and I do not consider that mens rea qua that offence is proven by an intention to commit an offence which, so far as Blondin’s admitted knowledge went, might have been one against the Customs Act, R.S.C. 1952, c. 58. (emphasis added)
The Supreme Court of Canada dismissed the appeal: [1971] SCR v; (1972), 1971 CanLII 1411 (SCC), 1 WWR 479.
[23] The Supreme Court of Canada in R v Kundeus, 1975 CanLII 161 (SCC), [1976] 2 SCR 272 at 289, 61 DLR (3d) 145, explicitly adopted the view that all that is required to secure a conviction for possession of a controlled substance is mens rea of a controlled substance generally. At page 289, the Court cited a paragraph from Blondin which stated in part that, “It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense.”
[24] In Kundeus the Supreme Court of Canada also approved the Ontario Court of Appeal decision in R v Custeau, 1971 CanLII 682 (ON CA), [1972] 2 OR 250, 6 CCC (2d) 179, when it held that that the accused who had trafficked in LSD, believing it to be mescaline, had the necessary mens rea to support a conviction for trafficking in LSD. Wilful blindness was not even considered in Kundeus. The Court went on to hold at page 291 that the result in Custeau had been the proper one notwithstanding that the Ontario Court of Appeal had erred in finding that at the time mescaline was a controlled drug rather than a drug mentioned in the Regulations under the Act which cannot be sold without a prescription. In Kundeus, the Supreme Court of Canada allowed the appeal and restored the conviction.
[25] That a wide view of the mens rea requirement for possession of a controlled substance is all that is required is further supported by the Supreme Court of Canada in R v Aiello (1978), 1978 CanLII 2374 (ON CA), 38 CCC (2d) 485 at 488, 30 NR 559, aff’d 1979 CanLII 31 (SCC), [1979] 2 SCR 15, [1979] SCJ No 23, where it affirmed the Ontario Court of Appeal, which had held:
In our view, the trial judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was willfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established. (emphasis added)
In Aiello, the Supreme Court of Canada suggested that mens rea is established for the possession of a controlled substance by an accused knowing that the package in question contains a controlled substance.
[26] More recently, the Ontario Court of Appeal in R v Lewis, 2012 ONCA 388 at para 12, citing Blondin, stated “that the mens rea for the offense of importing requires knowledge that the substance is a narcotic (now known as a “controlled substance”), although not necessarily knowledge of the exact type of narcotic.”
[27] The Court then went on to refer to its earlier decision in R v Burgess, 1969 CanLII 467 (ON CA), [1970] 3 CCC 268, where it had held that “it mattered not” that the accused believed the substance in his possession was hashish, rather than opium, since possession of both were prohibited by statute.
[28] Likewise, in R v Brady, 2017 NSCA 41, the Nova Scotia Court of Appeal at para 35, observed that “in Canada the law of possession does not require specific knowledge of the type of controlled drug. All that is required is knowledge of being in possession of a prohibited drug.”
[29] The Court then went on to cite R v Aiello, R v Blondin, and R v Burgess, and held at para 39 that the jury only had to find that the appellant “knew the suitcase contained a substance in which trafficking is not allowed, rather than specific knowledge of what that drug actually was.”
[30] It is clear from reading these cases that a finding of wilful blindness is not required to sustain a conviction, provided that the accused knew that he or she was in possession of a controlled substance.
[31] In oral submission before this Court, Crown counsel argued that there was no need for the trial judge to have found wilful blindness in order to convict Ms Stewart on both counts. All that was required was that Ms Stewart had knowledge of being in possession of marijuana in order to sustain a conviction on the count of possession of cocaine for the purpose of trafficking. We agree. Ms Stewart’s knowledge that she was in possession of marijuana was sufficient to sustain the mens rea on the count of possession of cocaine.
[32] It is true that this case differs from others in that Ms Stewart was charged with two counts of possession for the purpose of trafficking as opposed to one count where the accused believed he possessed a different (and less serious) substance than was in fact the case. However, in principle this makes no difference. Ms Stewart’s knowledge that she was in possession of one controlled substance (marijuana) is sufficient as a matter of law to sustain a conviction for possession of another controlled substance (cocaine).
[33] Accordingly, the cross-appeal is dismissed. Under the circumstances, there is no need to consider the issue of whether or not Ms Stewart was wilfully blind regarding the presence of cocaine.
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