R v Kernaz, 2019 SKCA 37
[12] The Crown submits the trial judge either applied the wrong legal test as to possession for the purpose of trafficking or did not correctly apply the legal test to the facts. It notes the definition of traffic in the CDSA includes give. It submits the case law demonstrates that where the accused admits he intends to share a controlled substance in his possession with others, he possesses it for the purpose of trafficking. The Crown says the trial judge erred when she convicted Mr. Kernaz of simple possession, as he intended to share both controlled substances with others.
[13] Mr. Kernaz submits the Crown’s argument, properly framed, is that the trial judge erred in law by applying the wrong legal test for trafficking or that the trial judge misapprehended or failed to consider all relevant evidence on the issue of trafficking. It is Mr. Kernaz’s position the trial judge applied the correct legal test and considered all the evidence. He submits the trial judge’s reasons, when read as a whole, demonstrate she rejected his evidence entirely, including his testimony that he was going to share his drugs. He argues those findings of fact, including as to credibility, are not subject to review on appeal as they are not tainted by an error of law.
[14] In my respectful opinion, the Crown is correct. Section 2(1) of the CDSA provides as follows:
Definitions
2(1) In this Act …
traffic means, in respect of a substance included in any of Schedules I to V,
(a) to sell, administer, give, transfer, transport, send or deliver the substance … .
[15] There is ample authority for the proposition that give in this section includes sharing with others, including for social purposes, regardless of whether the accused will receive anything in return. In R v Rogalsky (1975), 1975 CanLII 835 (SK CA), 23 CCC 2d 399 (Sask CA) [Rogalsky], the accused said he purchased the cannabis in his possession for his own use, but would comply with the etiquette among drug users that one does not use drugs in the presence of others without offering to share. The trial judge held that the fact he possessed the drugs for his own use but would share them constituted trafficking under the Narcotic Control Act, RSC 1970, c N-l (repealed). The relevant definition of traffic was identical to that in s. 2(1) of the CDSA. Although the conviction under the Narcotic Control Act was not appealed, the Court of Appeal noted that the accused was guilty of that offence, but not the offence of possession of LSD for the purpose of trafficking under the Food and Drugs Act, RSC 1970, c F-27 (repealed), as that Act’s definition of trafficking did not contain the word give.
[16] I note, by comparison, the decision in R v Beek, 2014 BCSC 971 [Beek]. In that case, the accused said he would sometimes share his cocaine with others at parties and on other occasions would not. The Crown argued his admission, that he was willing to share cocaine with others and might do so with the cocaine he possessed, was sufficient to make out the offence. Justice Butler commented that in many circumstances sharing the drugs will constitute trafficking and that “in some circumstances having a proven intention to share or deliver drugs will meet the definition” (at para 59). However, he found – in my view correctly – that the mere possibility that an accused may share a controlled substance while using it himself does not constitute possession for the purpose of trafficking.
[17] In R v Taylor (1974), 1974 CanLII 1452 (BC CA), 17 CCC (2d) 36 (BCCA) [Taylor], the accused and five friends pooled their money and the accused purchased hashish (cannabis resin) in bulk, with the intention they would share it in equal portions. His appeal from conviction of possession for the purpose of trafficking was dismissed, with Carrothers J.A. commenting as follows (at 41):
The gravamen of the charge of trafficking is possession plus the intent or purpose of physically making the hashish available to others, regardless of ownership. The simple fact that it was economic for the purchase price to be collected in advance from the potential users of the narcotic and a bulk purchase made, thereby vesting in such users some claim to ownership and title and even a deemed joint possession by them, does not alter the nature of the physical act of giving, delivering or distributing the narcotic to another or others, which in itself constitutes the offence.
(Emphasis added)
[18] This reasoning was approved in R v O’Connor (1975), 1975 CanLII 1496 (BC CA), 23 CCC (2d) 110 (BCCA) [O’Connor] (leave to appeal to the SCC refused, (1975), 23 CCC (2d) 110n), where that Court sat five judges to fully consider the reasoning in Taylor. In O’Connor, the accused possessed drugs purchased with his wife’s knowledge and consent using funds from a box in which they both deposited money for joint expenses. They were both drug users and the accused was carrying them home for their joint use. The Court of Appeal upheld his conviction of possession for the purpose of trafficking.
[19] The approach adopted in Rogalsky, Taylor and O’Connor has been frequently applied. R v Ward, 2007 SKPC 142 [Ward], and R v Munro, 2003 SKPC 49, 231 Sask R 259 [Munro], demonstrate its application in Saskatchewan. In Ward, the accused possessed a small amount of marijuana that he purchased with the intention of sharing it with a friend. In Munro, the accused told police he and others, who had recently arrived at his home, “were just going to roll a joint” and that the others had not paid him because he was “a generous guy” (at para 5). The same approach is demonstrated in R v Menzies, 2017 BCSC 389 at paras 33–34, and R v Elliott, 2016 BCSC 393 at paras 47–51.
[20] The facts in this case – assuming the trial judge accepted Mr. Kernaz’s admissions as true – are distinguishable from Beek, and fall on the Taylor–O’Connor side of the line. Mr. Kernaz did not say he was a generous soul who might share his ill fortune with others. He said he intended to share these drugs and was parked outside the very house where he intended to do so. If the trial judge concluded it was necessary, at least in the circumstances of this case, to prove there was a settled plan with a third person who was prepared to share the drugs, it is my respectful opinion that she erred in law.
[21] Indeed, Mr. Kernaz did not suggest otherwise. Rather, he submits that the trial judge rejected the evidence as to his intentions. With respect, I do not agree. As counsel for Mr. Kernaz noted, the passages in the trial judge’s reasons, emphasized by the Crown, cannot be read in isolation. The correct approach was summarized by Cromwell J. in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, where he noted as follows:
[15] … it is important to remember that a trial judge’s reasons for judgment should not be “read or analyzed as if they were an instruction to a jury”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525. Rather, the reasons must be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; see also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11.
[22] The foundation for Mr. Kernaz’s argument is that the trial judge rejected all of his evidence. He emphasizes the trial judge’s finding of fact that he was not truthful. He submits that the impugned language about settled plans and willing participants is properly understood as an imperfect expression of the trial judge’s conclusion that she did not believe him.
[23] With respect, that is not a fair reading of the reasons as a whole. The finder of fact may accept some, all or none of the evidence of a witness. That is so in relation to a witness who is found to lack credibility. The trial judge’s reasons demonstrate that is what occurred in this case. It is, in my view, clear the trial judge accepted Mr. Kernaz’s evidence that he had possession not only of the methamphetamine in his pocket, but the cocaine and the pipe in the console. Further, as noted above, she expressly found that he “drove to a house … where he intended to smoke crack with a friend …”. That statement is entirely unambiguous and can only be explained on the basis that she believed his evidence that he intended to share.
[24] The trial judge nonetheless concluded that his intention to share his drugs did not make out the offence. I conclude that she followed the path suggested by the submission by defence counsel that “nothing really had been agreed upon” and that giving drugs was “just one possibility”. That submission reflected an erroneous view of the law. There is no need for an agreement.
Aucun commentaire:
Publier un commentaire