Revue des principes juridiques liées à la possession en vue de trafic d'une drogue

R. v. Huang, 2013 BCSC 2237

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[51]        Many of the applicable principles are summarized in R. v. Ngo, 2009 BCCA 301 at paras. 51-65:

•         to succeed in a prosecution of possession for the purpose of trafficking, the Crown must prove beyond a reasonable doubt that the accused had possession of the substance, that is knowledge of its existence and an element of control over it;

•         possession is not an included offence in the offence of production or cultivation, the “gravamen” of which is the active participation in the growing of prohibited plants;

•         a person may be convicted of production as either a principal or a party who aids or abets the principal. In a “grow op” case, an accused may have been found to have aided and abetted in the production of the marihuana by maintaining the environment in which the marihuana is produced, with the purpose or intent to assist in the crime;

•         the Crown may prove the essential elements of the offences of possession and production by direct or circumstantial evidence or a combination of the two. Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts;

•         the criminal standard of proof is not to be applied to each piece of evidence. In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must not examine each piece of evidence in isolation. Instead, the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused beyond a reasonable doubt and is inconsistent with any other reasonable conclusion; and

•         as far as competing inferences from circumstantial evidence that might be open to a trial judge are concerned, he/she is not expected to:

… treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.

[R. v. To (1992), 1992 CanLII 913 (BC CA), 16 B.C.A.C. 223 at para. 41 (C.A.), McEachern C.J.B.C., cited with approval in Ngo at para. 55.]

[52]        In addition to the above, the following principles also apply:

•         possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the accused knew of the presence of the substance and he had some measure of control over its location: R. v. Fisher, 2005 BCCA 444 at paras. 20-24;

•         constructive possession is complete “where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his ‘use or benefit’ or that of another person”: R. v. Morelli, 2010 SCC 8 at para. 17, Fish J.;

•         mere presence, that is what certain of the authorities refer to as being a “found-in”, is not sufficient to establish guilt. This is because mere presence at the scene of a crime is not necessarily proof of guilt: R. v. Jackson, 2007 SCC 52 at paras. 3, 9, and R. v. Sylvestre and Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, both cited in R. v. Liu, 2011 BCSC 1269 at paras. 28-29;

•         in some cases, in the absence of a credible explanation, an inference of knowledge may properly be drawn from the circumstantial evidence: R. v. To, supra, cited with approval in R. v. Vu, 2002 BCCA 659 at para. 25;

•         where an alternative inference is asserted, there needs to be some evidence to support it: R. v. Vu, supra, at para. 26;

•         the trial judge is entitled to apply ordinary human experience and common sense in his/her assessment of the evidence. He/she should not apply speculative reasoning: R. v. Bi, 2011 BCCA 10 at paras. 15-16; and

•         while it is true that an accused is not called upon to explain suspicious things, “there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”: R. v. Jenkins (1908), 1908 CanLII 243 (BC SC), 14 C.C.C. 221, cited with approval in R. v. Dae, 2010 BCCA 486 at para. 20.

Porter une arme à feu prohibée lors d'un trafic de drogue amène normalement une peine de pénitencier

R. v. Habib, 2024 ONCA 830 

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[18]   There is no dispute that the appellant committed grave offences that endangered public safety and required a significant prison sentence. He carried a loaded prohibited firearm as a tool of the drug trade, which by itself normally attracts a prison sentence, in the penitentiary range. See R. v. Smith, 2023 ONCA 620, at paras. 5-7. And by impulsively using that firearm to cause the employee to flee in fear, he endangered the lives of both that employee and the three bystanders, while creating the risk of escalating violence, and also causing grave psychological harm to the employee and a risk of that same harm to the bystanders. See R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at paras. 53-54. These aggravating features attract higher sentences. See R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 53-54, aff’d on other grounds, 2022 SCC 9, 466 D.L.R. (5th) 581; Smith, at paras. 1-2 and 13. For all these reasons, and consistent with this court’s jurisprudence, the sentencing judge rightly emphasized the need to denounce the appellant’s actions and deter others from doing the same.

Un échantillon aléatoire pris d'une drogue permet de tirer l'inférence que le reste de la substance est de même nature

R. v. Frost, 2020 NSPC 6 

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[53]        Although only three random samples were tested and proven to be cocaine, I accept this random sampling and I draw the inference that the balance of the samples contained cocaine: R. v. Herman, [1966] O.J. No. 188 (C.A.); R. v. Cripps (1969), 1969 CanLII 1123 (BC CA), 68 W.W.R. 456 (B.C.C.A.); R. v. Flett (1970), 1970 CanLII 1175 (BC CA), 73 W.W.R. 699 (B.C.C.A.); R. v. Malenfant, [2015] B.C.J. NO. 2595 (S.C.).  There is no other evidence that could raise a reasonable doubt as to the nature of the substances not analyzed. 

La prise d'un petit échantillon de drogue aux fins d'analyse peut faire la preuve l'entièreté de la même substance retrouvée lors de la transaction criminelle

R v Nyuon, 2014 ABCA 130

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[20]            The substance sold to the undercover officer was analysed and the certificate of analysis confirmed that it was cocaine. However, as none of the substance which remained on the table was seized, there was no analysis of it. The appellant says that in the absence of a certificate of analysis, the Crown has not proved that the substance was cocaine. The appellant relies on a passage from this court’s decision in R v Grant, 2001 ABCA 252 where an officer’s description of a substance was found to be insufficient proof. The court warned against the danger of permitting lay identification of illegal substances and stated that such practice should not be encouraged. It further observed that if it were to uphold that course of identification, the certificate of analysis practice would be at risk in the future.

[21]           In our view the fears expressed in Grant are simply not present here. There was an analysis of the substance sold to the undercover officer and it was found to be crack cocaine. It was similar to the routine practice of testing a small sample of a larger amount. In addition the undercover officer testified that the substance he observed on the table appeared to him to be crack cocaine, and that the chip trafficked to him was very similar to those on the table. There was the evidence of known drug users attending the room for short periods of time while the appellant and Santino were in the room. Finally, the expert testified that drugs are often not packaged because users may want different amounts. There was ample evidence on this record to enable the trier of fact to infer that what was left on the table was the same substance. The trial judge made no palpable and overriding error in his conclusion that the substance was cocaine. This ground of appeal is dismissed.

Le certificat de l'analyste n'est pas la seule façon de faire la preuve d'une drogue

R v Khalif, 2014 SKQB 165

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[40]                 In R. v. Grant, 2001 ABCA 252, [2001] A.J. No. 1257 (QL), the Alberta Court of Appeal stated as follows:

 

2   We will deal with this case on the certificate issue alone. A proper scientific analysis of a suspected substance is essential. Granted that a lay person can recognize various things such as smell, sights, sounds and speeds, and that such evidence may be admitted, the danger of permitting lay identification of an allegedly illegal substance is manifest and ought not to be encouraged. The chemical or scientific analysis of an illegal substance may well provide, and normally does provide, the court with reliable and trustworthy evidence that the substance was actually illegal according to its components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized. Were we to uphold the course followed here the certificate of analysis practice will be at risk in future. The police will rely on nothing but opinion evidence given by themselves. That is a step that should only be permitted by Parliament by way of the repeal of the analysis legislation. The use of the certificate has long been entrenched in the Statute, and for good reason, and can only be replaced by expert testimony by a qualified analyst.

 

 

[41]                 This three-paragraph decision provides no details of the facts or circumstances relating to the case, the alleged substance in question. In Bruce A. MacFarlane, Robert J. Frater & Chantal Proulx, Drug Offences in Canada, 3^rd ed., looseleaf, vol. 2 (Toronto: Canada Law Book, 2013) at page 13-35, the authors indicate that while not apparent from the courts reasons, what was at issue was the opinion of an officer involved in the seizure of 180 growing marijuana plants. It is to be noted that the Court of Appeal stated in the third and final paragraph of its decision that “we are not to be taken as foreclosing proof by other means in every possible case.”

 

[42]                 Cannabis or marijuana has been proven to be a controlled substance on the basis of circumstantial evidence surrounding the circumstances of seizure of the substance and evidence relating to the appearance of the substance by persons claiming familiarity with the product. See: R. v. Labine (1975), 1975 CanLII 1403 (ON CA), 23 C.C.C. (2d) 567, [1975] O.J. No. 235 (QL) (Ont. C.A.), at paras. 13-15, and Marin c. R., 2012 QCCA 254, [2012] J.Q. no 905 (QL), at paras. 45-46. Marijuana being an unrefined botanical product is obviously much more susceptible to lay person identification than a refined product such as crack cocaine. But, in R. v. Campbell, [1998] O.J. No. 2332 (QL) (Ont. C.A.), circumstantial evidence was held sufficient to justify a finding that the substance in question was cocaine. See paras. 7-8.

 

[43]                 In R. v. Grunwald, 2008 BCSC 1738, [2008] B.C.J. No. 2464 (QL), affirmed at 2010 BCCA 288, 257 C.C.C. (3d) 53, leave denied [2010] S.C.C.A. No. 299 (QL) (S.C.C.), the court stated:

 

37   I am of the view that while a certificate of analysis provides the simplest, most convenient and most satisfactory method of proof, the nature of the substance that was seized can be established by other means, particularly when the substance in question is marihuana as opposed to some liquid or powder which may have no identifiable, unique characteristics other than chemical composition.

 

38   There are cases that have held that in the absence of a certificate of analysis or other form of scientific evidence the trier of fact is entitled to rely on circumstantial evidence when determining whether the Crown has proven that the substance in question is that alleged in the indictment.

 

 

Then, after referring to Grant, said at para. 43:

 

43   This statement is not in accord with the other authorities and in my respectful view, it goes too far. While the Controlled Drugs and Substances Act provides a convenient method of proof by means of a certificate of analysis, I can see nothing in the statute that makes a certificate mandatory or precludes proof by other means. I do not share the concern that accepting other evidence in proof of the nature of the substance in a proper case will lead to a practice of not obtaining certificates of analysis. I do not believe the police would be foolish enough to adopt a practice of dispensing with the best method of proving the identity of a controlled substance.

 

 

[44]                 This decision was followed up by Lee J. in R. v. Do, 2011 ABQB 135, [2011] A.J. No. 630 (QL), where he held the following:

 

44  Defence counsel relied on R. v. Grant, 2001 ABCA 252, in which McClung J.A. held that a proper scientific analysis of a suspected substance is essential. However, McClung J.A. also indicated that the Court was not to be taken as foreclosing proof by other means in every possible case. Joyce J. in R. v. Grunwald, 2008 BCSC 1738, aff’d 2010 BCCA 288, leave denied [2010] S.C.C.A. No. 299 opined that McClung J.A.’s statement went too far in that while the CDSA provides a convenient method of proof by means of a certificate of analysis, nothing in the statute makes a certificate mandatory or precludes proof by other means. I do agree with Defence counsel that caution must be exercised with respect to drawing analogies with cases where other means have been relied upon to establish that a substance was marijuana.

 

45  It is trite that in order to convict on circumstantial evidence, a court must be satisfied that guilt is the only reasonable and rational inference to be drawn from the proven facts: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 33. This is a very exacting test. In the present case, the two items given to Cst. Smith were selected by Nguyen from a larger group of spitballs in his hand. Cst. Smith was not able to observe where Nguyen obtained the spitballs, nor where he put them after the deal was complete. The only spitballs found in the car or on Nguyen or the Accused shortly after the transaction were the 40 spitballs in the Juicy Fruit container located in Nguyen’s vest pocket. I am satisfied that the analysis of the two pieces selected from the 40 in the container support the inference that the 40 pieces in the Juicy Fruit container were spitballs of cocaine. The two items sold to Cst. Smith were virtually indistinguishable from the spitballs of cocaine in the Juicy Fruit container. Det. Pilon testified that cocaine dial-a-dopers commonly put their cocaine in containers like the Juicy Fruit container in this case. The cocaine transaction in this case was a dial-a-doper transaction. The items found in the Honda indicate an active dial-a-doper trafficking operation.

 

 

[45]                 In R. v. Nyuon, 2014 ABCA 130, [2014] A.J. No. 384 (QL), the Alberta Court of Appeal held as follows:

 

Was the substance cocaine?

 

20 The substance sold to the undercover officer was analyzed and the certificate of analysis confirmed that it was cocaine. However, as none of the substance which remained on the table was seized, there was no analysis of it. The appellant says that in the absence of a certificate of analysis, the Crown has not proved that the substance was cocaine. The appellant relies on a passage from this court’s decision in R. v. Grant, 2001 ABCA 252 where an officer’s description of a substance was found to be insufficient proof. The court warned against the danger of permitting lay identification of illegal substances and stated that such practice should not be encouraged. It further observed that if it were to uphold that course of identification, the certificate of analysis practice would be at risk in the future.

 

21 In our view the fears expressed in Grant are simply not present here. There was an analysis of the substance sold to the undercover officer and it was found to be crack cocaine. It was similar to the routine practice of testing a small sample of a larger amount. In addition the undercover officer testified that the substance he observed on the table appeared to him to be crack cocaine, and that the chip trafficked to him was very similar to those on the table. There was the evidence of known drug users attending the room for short periods of time while the appellant and Santino were in the room. Finally, the expert testified that drugs are often not packaged because users may want different amounts. There was ample evidence on this record to enable the trier of fact to infer that what was left on the table was the same substance. The trial judge made no palpable and overriding error in his conclusion that the substance was cocaine. This ground of appeal is dismissed.

Celui qui propose d'acheter une arme à feu ou de la drogue ne peut pas être reconnu coupable de trafic de cette chose

R. v. Bienvenue, 2016 ONCA 865

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[5]         In Greyeyes v. The Queen (1997), 1997 CanLII 313 (SCC), 116 C.C.C. (3d) 334 (S.C.C.), the Supreme Court held that Parliament intends to distinguish between traffickers and mere purchasers of illegal drugs and that purchasing an illegal drug does not constitute trafficking for the purpose of s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.  The definition of “transfer” in s. 84(1) of the Criminal Code and the definition of “traffic” in the CDSA are substantially similar. Moreover, in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 141-147, the Supreme Court characterized  s. 99 of the Criminal Code as a “weapons trafficking” offence The reasoning in Greyeyes supports the conclusion that “transfer”  in s. 84(1) does not include “offer to purchase” a firearm.

Revue du droit par la Cour d'Appel de l'Ontario quant à l'infraction de trafic de drogue

R. v. Murdock, 2003 CanLII 4306 (ON CA)

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[9]               Provincial appellate courts have repeatedly held that where an accused is charged with trafficking by offer, the Crown is not required to prove that the accused actually intended to go through with the offer and sell or otherwise provide the offered narcotic: R. v. Petrie, [1947] O.W.N. 601 at 603 (C.A.);  R. v. Sherman (1977), 1977 CanLII 1908 (BC CA), 36 C.C.C. (2d) 207 (B.C.C.A.), leave to appeal to S.C.C. refused 17 N.R. 178n;  R. v. Mamchur, 1978 CanLII 1813 (SK CA), [1978] 4 W.W.R. 481 (Sask. C.A.);  R. v. Mancuso (1989), 1989 CanLII 7227 (QC CA), 51 C.C.C. (3d) 380 (Que. C.A.), leave to appeal to SCC refused (1990) 58 C.C.C. (3d) vi;  R. v. Reid (1996), 1996 NSCA 265 (CanLII), 155 N.S.R. (2d) 368 at 370 (C.A.).

[10]         In Sherman, supra, at p. 208, the trial judge said:

Now, in my reading of the cases an offer to sell or deliver a narcotic is complete once the offer is put forward by the accused in a serious manner intending to induce officer White [the undercover officer] to act upon it and to accept it as an offer. … [emphasis added].

[11]          MacFarlane J.A. agreed with the trial judge and added at p. 208:

I accept the argument made by counsel for the Crown that the actus reus in this case is the making of an offer.  There can be no doubt that the appellant intended to make an offer to sell or deliver heroin and that provides in my opinion, the mens rea necessary to prove the offence.

[12]         In Mancuso, supra, at pp. 389-90, the Quebec Court of Appeal approved of a jury instruction in these terms:

[I]f I offer to you to provide you, to sell you cocaine, whether or not the transaction goes through I made the offer, therefore I have trafficked in cocaine.  The offence was complete with my offer and I gave you reason to believe that I was serious in that offer to provide you with cocaine.  I trafficked by making that offer, … [emphasis added].

[13]         The appellate authorities referred to above were cited with approval in R. v. Shirose, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565.  In Shirose, the lawfulness of a “reverse sting” operation conducted by undercover police officers was in issue.  During that operation, the undercover officers had offered to sell narcotics to the accused.  The officers did not intend to go through with the sale, but intended to arrest the accused when they attended to make the purchase.  Binnie J. observed at para. 25:

The conclusion that the RCMP acted in a manner facially prohibited by the Act is inescapable …  The actus reus of the offence of trafficking is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out:  see R. v. Mancuso (1989), 1989 CanLII 7227 (QC CA), 51 C.C.C. (3d) 380 (Que. C.A.) at p. 390, leave to appeal refused, [1990] 2 S.C.R. viii, 58 C.C.C. (3d) vi.  There is no need to prove both the intent to make the offer to sell and the intent to carry out the offer:  see R. v. Mamchur, 1978 CanLII 1813 (SK CA), [1978] 4 W.W.R. 481 (Sask. C.A.).  See also, e.g., R. v. Sherman (1977), 1977 CanLII 1908 (BC CA), 36 C.C.C. (2d) 207 (B.C.C.A.) at p. 208, upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercover police officer, with a view to “rip off” the officer and not complete the sale.  Sherman was later followed on this point in Mancuso, supra, at pp. 389-90, where the accused argued unsuccessfully that he did not intend actually to sell narcotics to a police informer, but really wished to steal his money [emphasis added].

[14]         On these authorities, the offence of trafficking by offer is made out if the accused:

•        offers to traffic in a narcotic [the actus reus]; and

•        intends to make an offer that will be taken as a genuine offer by the recipient [the mens rea].[2]