R. v. Belyk (M.M.J.), 2014 SKCA 24

• Judge: Jackson, Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 12, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 24;(2014), 433 Sask.R. 195 (CA)

R. v. Belyk (M.M.J.) (2014), 433 Sask.R. 195 (CA);

    602 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MR.027

Myron Michael Joseph Belyk (appellant) v. Her Majesty the Queen (respondent)

(CACR2297; 2014 SKCA 24)

Indexed As: R. v. Belyk (M.M.J.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Herauf, JJ.A.

March 12, 2014.

Summary:

The accused appealed from conviction and sentence respecting charges of trafficking in marihuana, possession of marihuana for the purpose of trafficking, and possession of proceeds of crime. The success of the conviction appeal turned on the admissibility of certain text messages between third parties and the relevance of trial counsel's failure to object to their admissibility at trial. The sentence appeal was challenged on the basis of fitness.

The Saskatchewan Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence and dismissed the sentence appeal.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - The accused was convicted of, inter alia, trafficking in marihuana - At trial, Crown counsel sought to introduce the contents of text messages from a phone found in the accused's house and three phones found in a vehicle with Chartier and his girlfriend, through notes made by a police officer who had copied the messages - The Crown alleged that Chartier had just picked up drugs at the accused's house - The accused's trial counsel did not object to the admission of the messages - The trial judge took the messages from Chartier's phone into account in convicting the accused - The accused appealed, submitting that a voir dire should have been held to determine the admissibility of some of the messages from Chartier's phone - The Saskatchewan Court of Appeal held that, where the accused's counsel had decided to use some of the messages to support his theory that it was Chartier who was delivering marihuana to the accused rather than getting it from him, the accused bore a significant burden to persuade the court to now order a new trial on the basis that a voir dire should have been conducted to determine the admissibility of the messages - All that the accused could assert at this stage was that there was a "possibility" that the evidence might have been excluded if it had been challenged - Further, if admission of the evidence did constitute error, the court would have dismissed the appeal on the basis that no substantial wrong or miscarriage of justice had occurred (Criminal Code, s. 686(1)(b)(iii)) - Other, overwhelming evidence supported the accused's conviction for possession for the purpose of trafficking - See paragraphs 1 to 10 and 12 to 28.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevance - Voir dire - General (incl. time for) - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused was convicted of trafficking in marihuana, possession of marihuana for the purpose of trafficking and possession of proceeds of crime - The trial judge sentenced the accused to 18 months' incarceration, concurrent on each count - Given his moral blameworthiness, the commercial nature of the accused's enterprise and the amount of drugs and cash seized, she concluded that the sentencing objectives of denunciation and personal and general deterrence could not be met, if the accused were to serve his sentence in the community - The accused appealed his sentence on the basis that: (i) he should have been allowed to serve his sentence in the community; and (ii) alternatively, an 18 month sentence did not respect the principle of parity in sentencing and was demonstrably unfit - The Saskatchewan Court of Appeal dismissed the appeal - See paragraphs 12 and 29 to 31.

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for purposes of trafficking) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5972

Sentencing - Sentence - Particular offences - Money laundering or proceeds of crime - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 298 C.C.C.(3d) 425; 2013 SCC 35, consd. [para. 13].

R. v. Perciballi (P.) et al. (2001), 146 O.A.C. 1; 54 O.R.(3d) 346 (C.A.), refd to. [para. 16].

R. v. Lowe (D.A.) (2009), 274 B.C.A.C. 92; 463 W.A.C. 92; 2009 BCCA 338, refd to. [para. 16].

R. v. Ratté (D.F.) (2012), 327 B.C.A.C. 88; 556 W.A.C. 88; 95 C.R.(6th) 387; 2012 BCCA 352, refd to. [para. 16].

R. v. R.R.B. (2013), 414 Sask.R. 184; 575 W.A.C. 184; 2013 SKCA 52, refd to. [para. 16].

R. v. U.C. (2009), 248 O.A.C. 341; 2009 ONCA 367, refd to. [para. 16].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 17].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 26].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 26].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 30].

Counsel:

William Roe, Q.C., for the appellant;

Wade McBride, for the respondent.

This appeal was heard by Jackson, Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following decision for the court on March 12, 2014.