Black v. R,

• Jurisdiction: New Brunswick
• Judge: Robertson, Richard and Bell, JJ.A.
• Neutral Citation: 2010 NBCA 36
• Citation: 2010 NBCA 36,(2010), 360 N.B.R.(2d) 132 (CA),360 NBR (2d) 132,255 CCC (3d) 62,[2010] NBJ No 171 (QL),360 N.B.R.(2d) 132,[2010] N.B.J. No 171 (QL),(2010), 360 NBR(2d) 132 (CA),360 NBR(2d) 132
• Date: 26 October 2009
• Court: Court of Appeal (New Brunswick)

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132 (CA);

    360 R.N.-B.(2e) 132; 930 A.P.R. 132

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.B.R.(2d) TBEd. MY.033

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MY.033

David Mark Black (appellant) v. Her Majesty the Queen (respondent)

(19-09-CA; 2010 NBCA 36)

Indexed As: R. v. Black (D.M.)

Répertorié: R. v. Black (D.M.)

New Brunswick Court of Appeal

Robertson, Richard and Bell, JJ.A.

May 20, 2010.

Summary:

Résumé:

The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana (both contrary to s. 465(1) of the Criminal Code), two counts of possession of a prohibited firearm (s. 95(2) of the Code) and one count of unlawful storage of a firearm (s. 86(2) of the Code) and was sentenced to 54 months' imprisonment. The accused appealed the conviction, applied for leave to appeal the sentence and applied for release pending determination of the appeal.

The New Brunswick Court of Appeal, per Larlee, J.A., in a decision reported at 351 N.B.R.(2d) 189; 904 A.P.R. 189, dismissed the motion. The appeal and application proceeded.

The New Brunswick Court of Appeal dismissed the conviction appeal and denied leave to appeal sentence.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, warrants issued pursuant to ss. 487.01 and 462.32 of the Criminal Code - The accused challenged the validity of the search warrants - The accused asserted, inter alia, that there was no nexus between the crime and the places to be searched - The New Brunswick Court of Appeal dismissed the appeal - There had to be a nexus between the place to be searched and the grounds to believe that evidence of an offence would be found at that place - The information to obtain a search warrant was prepared with respect to several of the sites police intended to search, including the business and the residence of the accused - The application judge did not err when he concluded those informations contained evidence upon which the issuing judge could have issued the warrants - See paragraph 36.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, warrants issued pursuant to ss. 487.01 and 462.32 of the Criminal Code - The accused challenged the validity of the search warrants - The accused asserted, inter alia, that the trial judge failed to rule on the legality of the issuance of simultaneous warrants under s. 462.32 and s. 487.01 of the Criminal Code and his right to life, liberty and security of the person was violated by the issuance of simultaneous warrants - The New Brunswick Court of Appeal dismissed the appeal - The court's attention had not been drawn to any sound legal basis why police authorities could not simultaneously obtain a warrant pursuant to both s. 487.01 and 462.32 to search a place - Further, parenthetically, the accused did not lead any evidence or make any argument that the issuance of a general warrant under s. 487.01 was prohibited by operation of s. 487.01(1)(c) - See paragraph 38.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See both Civil Rights - Topic 1604 , Criminal Law - Topic 5274.3 , Criminal Law - Topic 5274.4 and both Criminal Law - Topic 5274.5 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 7 Charter rights - The accused had been charged with nine offences in three separate informations - The accused complained that there were too many proceedings arising out of the same facts, creating an abuse of process - The New Brunswick Court of Appeal dismissed the appeal - The accused had made no application to join the various counts as permitted under s. 591 of the Criminal Code - In the absence of any application for joinder, the appeal based upon "multiplicity of proceedings" was without merit - See paragraphs 6 and 7.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 7 Charter rights - The accused asserted that during a conference call, he was first notified that a special search warrant issued pursuant to s. 462.32 of the Criminal Code had been vacated - He contended that his Charter rights were violated because of the failure of the Crown to notify him earlier of the vacating of the warrant - He also complained that the simultaneous execution of special search warrants issued pursuant to s. 462.32 and general warrants issued pursuant to s. 487.01 constituted a breach of his right to life, liberty, and security of the person - The New Brunswick Court of Appeal dismissed the appeal - A special warrant was issued and later vacated - Special warrants were executed simultaneously with other warrants - However, the final determinations made by the application judge regarding the special warrants had no impact upon the accused's trial and convictions under appeal - This allegation of abuse of process was without merit - See paragraph 8.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 7 Charter rights - The accused asserted that there was an abuse of process where the Crown "judge shopped" in an attempt to obtain a judge more favourable to its position - The accused based this allegation on the fact that from the beginning of the court procedures to their final disposition, he appeared before numerous judges - The New Brunswick Court of Appeal dismissed the appeal - Changes in assignments from one judge to another resulted from adjournments requested by the accused; his re-election to be tried by a Provincial Court judge, necessitating the recusal of the judge who had heard evidence at the preliminary inquiry; and, finally, the very grave illness of the judge initially assigned to hear the case - There was no evidence of judge shopping by the Crown - This ground of appeal not only lacked merit, it was frivolous and spurious - See paragraph 9.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On September 28, 2005, the accused was charged with nine offences in three separate informations - On November 17, 2008, the accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 11 Charter right to be tried within a reasonable time - The New Brunswick Court of Appeal dismissed the appeal - The trial judge concluded that the accused had waived seven months of the 38 month delay; eight months resulted from the illness of the judge originally scheduled to hear the matter; and 18 months resulted from the bona fide actions taken by the accused - Those actions included attacks on the validity of the search warrants, Charter challenges, re-electing mode of trial, requests for disclosure, requests for adjournment and changing solicitors - After making all of the above allowances, the trial judge concluded there were only five months of unexplained delay - Those five months did not constitute unreasonable delay resulting in a Charter violation - The trial judge also concluded that the delays had not prejudiced the accused - The trial judge made no error - The ground of appeal was without merit - See paragraphs 10 to 12.

Courts - Topic 5884

Provincial Courts - New Brunswick - Provincial Court - Jurisdiction - General - [See Criminal Law - Topic 2810 and Criminal Law - Topic 2811 ].

Criminal Law - Topic 2647

Attempts, conspiracies, accessories and parties - Conspiracies - Elements of offence - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred in law and in fact when he concluded that the accused was part of the alleged conspiracies - The New Brunswick Court of Appeal dismissed the appeal - The trial judge correctly stated the applicable test - He correctly instructed himself that the essential element of the offence of conspiracy was the agreement between persons, and that such an agreement could be inferred from circumstantial evidence - He reasonably found that the evidence, which included intercepted conversations dealing with price and transactions, similarities in the grow operations, and coded telephone conversations proved the existence of conspiracies to produce and traffic marihuana - With respect to the second stage of the test, the participation of the accused in the conspiracies, the trial judge also correctly instructed himself - He recognized that at this stage he could only consider evidence that was directly admissible against the accused - Upon being satisfied that the first two steps of the test had been met, the trial judge correctly pointed out that statements made by a person engaged in an unlawful conspiracy were receivable as admissions against all those acting in concert - It followed that all telephone conversations of the co-conspirators were then admissible against the accused - The trial judge then set out the evidence he considered in finding the accused guilty on the count of conspiracy to produce marihuana - He concluded that evidence was "overwhelming" - There were no errors of fact or law - See paragraphs 39 to 47.

Criminal Law - Topic 2810

Jurisdiction - General principles - Jurisdiction over the accused - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that he was not seized of the matter after having adjudicated upon the accused's Request for Particulars on March 9, 2007 - The accused had requested that various search warrants, production orders and assistance orders be quashed based upon alleged breaches of his rights under the Charter - The Crown, in its reply to the motion, filed and served a demand for particulars - The accused refused to provide the particulars - The Crown brought an application requesting the particulars be provided - The application judge ruled that the particulars need not be provided - The accused contended that the application judge, as a result of hearing and ruling on the application for particulars, became seized of the matter and was required to hear all remaining matters regarding the admissibility of evidence as well as the trial - The New Brunswick Court of Appeal dismissed the appeal - The demand for particulars was purely procedural and did not involve either a determination of any facts or a consideration of the admissibility of evidence - This ground of appeal lacked merit - See paragraphs 48 to 50.

Criminal Law - Topic 2811

Jurisdiction - General principles - Jurisdiction over the offence - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded he had jurisdiction over the offence even though no charges were laid prior to the appearance date set out in the Promise to Appear issued to the accused - The accused relied on s. 505 of the Criminal Code - The New Brunswick Court of Appeal dismissed the appeal - Indictable offences in the Code were devoid of limitation dates - Further, in light of R. v. Markovic (Ont. C.A. 2005) and R. v. Lindsay (B.C.A.C. 2006), the court held that "1. Failure to adhere to the time limits set out in s. 505 does not invalidate the information or result in a loss of jurisdiction over the offence" and "2. Jurisdiction over the offence and the accused is not affected by the manner in which the accused is brought before the court." - Accordingly, the Provincial Court did not lose jurisdiction over the offence or the offender by reason of the delay in laying the informations - See paragraphs 14 to 16.

Criminal Law - Topic 5274.3

Evidence and witnesses - Interception of private communications - Application for - Affidavit - Examination or cross-examination of deponent - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, authorizations issued pursuant to s. 186(1) of the Criminal Code (interception of private communications) - The accused challenged the validity of the authorizations based on the refusal of the application judge to permit cross-examination of the affiant - The New Brunswick Court of Appeal dismissed the appeal - The test in R. v. Garofoli (S.C.C. 1990) required that the defence show a reasonable likelihood that cross-examination of the affiant would elicit testimony of probative value - It was grounded in two basic principles of evidence: relevance and materiality - It was also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants - The accused's affidavit in support of his application for leave to cross-examine the affiant largely contained his arguments and a simple denial of some information contained in the affidavit under attack - The trial judge weighed those denials and the lack of independent evidence which could bring into question the contents of the police officer's affidavit - There was no evidence that the trial judge failed to judicially exercise his discretion in refusing the accused leave to cross-examine the affiant - See paragraphs 21 to 24.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications - Application for - Investigative necessity - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, authorizations issued pursuant to s. 186(1) of the Criminal Code (interception of private communications) - The accused challenged the validity of the authorizations based upon the lack of investigative necessity - The New Brunswick Court of Appeal dismissed the appeal - The police used, among others, the following means of investigation: surveillance, trash examinations, infra-red analysis, general warrants, number recorder warrants, search warrants and tracking devices - The leaders among those being investigated used counter-surveillance measures, demonstrating their knowledge that they were being investigated - Although 21 informants were willing to provide information to the police against the persons named, none were willing to act as agents for the police - Further, the persons named had resorted to violence in order to continue their activities - The affiant carefully demonstrated how all these factors made a wiretap investigation necessary - See paragraphs 31 to 33.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications - Application for - Evidence in support - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, authorizations issued pursuant to s. 186(1) of the Criminal Code (interception of private communications) - The accused challenged the validity of the authorizations, asserting that the information relied on by the affiant was not reliable because the affiant was not the handler of the sources - The New Brunswick Court of Appeal dismissed the appeal - The affiant corroborated much of the information received from each source, either by evidence obtained through other investigative measures or by information received from other sources - Further, his affidavit contained the following information regarding each source: "a. whether they were paid or not for information provided; b. how long the handler knew the source; c. how long the source had been providing information to the handler concerning criminal activities; d. criminal record of the sources regarding perjury; e. if information provided by the sources in the past have lead to searches, seizures or charges under the Criminal Code or the CDSA; and f. how information provided by a source was received by the source." - Finally, because the information gathered by the sources spanned a lengthy period of time, the affiant also reconfirmed the reliability of the sources with each of the handlers prior to swearing to the veracity of the statements in the affidavit - The information was reliable - See paragraphs 25 and 26.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications - Application for - Evidence in support - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana, two counts of possession of a prohibited firearm and one count of unlawful storage of a firearm - The accused appealed, asserting that the trial judge erred when he concluded that there was no breach of the accused's s. 8 Charter rights against unreasonable search and seizure through the gathering of information and material as a result of, inter alia, authorizations issued pursuant to s. 186(1) of the Criminal Code (interception of private communications) - The accused challenged the validity of the authorizations, asserting that some of the language used in the affidavit and the authorization was conclusory or mere boilerplate - The accused also submitted that the affidavit did not provide compelling evidence because it did not prove his role in the conspiracy and failed to provide evidence that he committed a crime - The New Brunswick Court of Appeal dismissed the appeal - The court found that "[t]he affiant clearly states that cannabis marihuana is being produced and trafficked and that there is some sort of an agreement or agreements between various individuals for this production and trafficking to occur. Although the affidavit contains no absolute proof the [accused] was a party to the offences, there is more than enough evidence to ground a conclusion of his probable connection to the criminal undertakings such that intercepting his communications would provide evidence of the offences." - See paragraphs 27 to 30.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for purposes of trafficking) - The accused was found guilty of one count of conspiracy to traffic in marihuana and one count of conspiracy to produce cannabis marihuana (both contrary to s. 465(1) of the Criminal Code), two counts of possession of a prohibited firearm (s. 95(2) of the Code) and one count of unlawful storage of a firearm (s. 86(2) of the Code) and was sentenced to a total of 54 months' imprisonment - The accused applied for leave to appeal sentence, asserting that the trial judge failed to take into consideration the parity principle and that the sentence on the drug related offences (42 months' imprisonment) was demonstrably unfit in the circumstances - The New Brunswick Court of Appeal denied leave to appeal - With respect to the parity principle, the accused contended that several of the accused who were convicted following the same investigation received significantly less periods of incarceration than did he - The trial judge dealt squarely with this issue - The trial judge concluded the appellant was the directing mind of the "Turcotte" operation - Although the trial judge did not refer to the accused as the directing mind in the "Kevin Black" operations, he did conclude the accused provided advice and was "certainly involved" in those operations - The trial judge did not commit any errors of law or error in principle and the sentence was not demonstrably unfit - See paragraphs 51 to 54.

Criminal Law - Topic 5857

Sentence - Conspiracy - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm - [See Criminal Law - Topic 5853 ].

Droit criminel - Cote 2647

Tentatives, complots, complices et participants - Complots - Éléments de l'infraction - [Voir Criminal Law - Topic 2647 ].

Droit criminel - Cote 2810

Compétence - Principes généraux - Compétence sur le prévenu - [Voir Criminal Law - Topic 2810 ].

Droit criminel - Cote 2811

Compétence - Principes généraux - Compétence sur l'infraction - [Voir Criminal Law - Topic 2811 ].

Droit criminel - Cote 5274.3

Preuve et témoins - Interception de communications privées - Demande d'interception de communications privées - Affidavit - Interrogatoire ou contre-interrogatoire du déposant - [Voir Criminal Law - Topic 5274.3 ].

Droit criminel - Cote 5274.4

Preuve et témoins - Interception de communications privées - Demande d'interception de communications privées - Nécessité pour l'enquête - [Voir Criminal Law - Topic 5274.4 ].

Droit criminel - Cote 5274.5

Preuve et témoins - Interception de communications privées - Preuve à l'appui de la demande - [Voir Criminal Law - Topic 5274.5 ].

Droit criminel - Cote 5806.1

Détermination de la peine - Généralités - Harmonisation des peines - Généralités - [Voir Criminal Law - Topic 5806.1 ].

Droit criminel - Cote 5853

Peine - Trafic de haschisch et de marijuana (y compris la possession aux fins de trafic) - [Voir Criminal Law - Topic 5853 ].

Droit criminel - Cote 5857

Peine - Complot - [Voir Criminal Law - Topic 5857 ].

Droit criminel - Cote 5871

Peine - Possession et utilisation ou vente d'armes - [Voir Criminal Law - Topic 5871 ].

Droit criminel - Cote 5877.1

Peine - Entreposage irrégulier d'une arme à feu - [Voir Criminal Law - Topic 5877.1 ].

Droits et libertés - Cote 1604

Biens - Mandats de perquisition - Validité - [Voir Civil Rights - Topic 1604 ].

Droits et libertés - Cote 1646

Biens - Fouille, perquisition et saisie - Définition de fouille, perquisition et saisie déraisonnable - [Voir Civil Rights - Topic 1646 ].

Droits et libertés - Cote 3157.4

Procès - Application régulière de la loi, justice fondamentale et audiences équitables - Affaires criminelles et quasi-criminelles - Abus de procédure - [Voir Civil Rights - Topic 3157.4 ].

Droits et libertés - Cote 3265

Procès - Application régulière de la loi, justice fondamentale et audiences équitables - Droit de l'accusé d'être jugé sans délai - Sens de l'expression "dans un délai raisonnable" - [Voir Civil Rights - Topic 3265 ].

Tribunaux - Cote 5884

Tribunaux provinciaux - Nouveau-Brunswick - Cour provinciale - Compétence - Généralités - [Voir Courts - Topic 5884 ].

Cases Noticed:

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, reving. (1992), 127 A.R. 89; 20 W.A.C. 89 (C.A.), refd to. [para. 3].

R. v. Doan (T.T.) et al. (2007), 321 N.B.R.(2d) 282; 827 A.P.R. 282; 2007 NBCA 70, refd to. [para. 3].

R. v. King (R.A.) (2008), 338 N.B.R.(2d) 163; 866 A.P.R. 163; 2008 NBCA 81, refd to. [para. 3].

R. v. Langlais (M.) (2008), 328 N.B.R.(2d) 201; 841 A.P.R. 201; 2008 NBCA 20, refd to. [para. 3].

R. v. Thibodeau (C.) (2005), 291 N.B.R.(2d) 162; 758 A.P.R. 162; 2005 NBCA 81, refd to. [para. 3].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 7].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 11].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 12].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 12].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 12].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 12].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 12].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 12].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 12].

R. v. Markovic (B.) (2005), 204 O.A.C. 35; 77 O.R.(3d) 752 (C.A.), leave to appeal refused (2006), 353 N.R. 193; 217 O.A.C. 397 (S.C.C.), refd to. [para. 16].

R. v. Lindsay (D.-K.) (2006), 224 B.C.A.C. 172; 370 W.A.C. 172; 2006 BCCA 150, leave to appeal refused (2006), 362 N.R. 394; 241 B.C.A.C. 320; 399 W.A.C. 320 (S.C.C.), refd to. [para. 16].

R. v. Shepherd, [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 18].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 18].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 18].

R. v. Tontarelli (R.) (2009), 348 N.B.R.(2d) 41; 897 A.P.R. 41; 2009 NBCA 52, refd to. [para. 18].

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 19].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 19].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241, refd to. [para. 19].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 19].

R. v. Shalala (R.H.) (2000), 224 N.B.R.(2d) 118; 574 A.P.R. 118 (C.A.), refd to. [para. 19].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 2009 ONCA 851, refd to. [para. 19].

R. v. Budd (W.) et al. (2000), 138 O.A.C. 116 (C.A.), refd to. [para. 19].

R. v. Vukelich (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), leave to appeal refused (1997), 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80 (S.C.C.), refd to. [para. 19].

R. v. Jordan (D.), [2002] B.C.T.C. Uned. 435; 2002 BCSC 1322, refd to. [para. 19].

R. v. Bisson (J.) et autres, [1994] R.J.Q. 308; 60 Q.A.C. 173 (C.A.), refd to. [para. 19].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1 (C.A.), refd to. [para. 19].

R. v. Arsenault (E.J.) (2009), 344 N.B.R.(2d) 113; 884 A.P.R. 113; 2009 NBCA 29, refd to. [para. 19].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 21].

R. v. Pires - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 22].

R. v. Drapeau (J.) (2001), 239 N.B.R.(2d) 103; 619 A.P.R. 103; 2001 NBCA 68, refd to. [para. 25].

R. v. Dickson (J.R.) (1996), 178 N.B.R.(2d) 98; 454 A.P.R. 98 (T.D.), refd to. [para. 26].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 26].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 29].

R. v. Doiron (E.) (2007), 315 N.B.R.(2d) 205; 815 A.P.R. 205; 2007 NBCA 41, leave to appeal refused (2007), 383 N.R. 393; 333 N.B.R.(2d) 429; 855 A.P.R. 429 (S.C.C.), refd to. [para. 29].

R. v. Wasfi (G.) (2006), 222 B.C.A.C. 130; 368 W.A.C. 130; 2006 BCCA 55, refd to. [para. 31].

R. v. Black (D.M.) et al. (2006), 302 N.B.R.(2d) 114; 784 A.P.R. 114; 2006 NBQB 304, refd to. [para. 37].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 40].

R. v. Gray (R.) (1998), 207 N.B.R.(2d) 69; 529 A.P.R. 69 (C.A.), refd to. [para. 40].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 43].

R. v. Wilder (D.M.) et al., [1995] B.C.T.C. Uned. A66 (S.C.), refd to. [para. 49].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 49].

R. v. Trang (D.) et al. (2003), 344 A.R. 258; 2003 ABQB 774, refd to. [para. 49].

R. v. MacMillan (W.), [2000] B.C.T.C. 1074; 52 W.C.B.(2d) 286; 2000 BCSC 1619, refd to. [para. 49].

R. v. Cormier (R.A.) (2005), 392 A.R. 246; 2005 ABQB 801, refd to. [para. 49].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 52].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 52].

R. v. Melanson (K.P.) (2009), 347 N.B.R.(2d) 201; 894 A.P.R. 201; 2009 NBCA 41, refd to. [para. 52].

R. v. C.P. et al. (2009), 349 N.B.R.(2d) 214; 899 A.P.R. 214; 2009 NBCA 65, refd to. [para. 52].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 52].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 52].

R. v. LeBlanc (G.A.) (2003), 264 N.B.R.(2d) 341; 691 A.P.R. 341; 2003 NBCA 75, refd to. [para. 52].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 505 [para. 14].

Counsel:

Avocats:

David Mark Black appeared in person, for the appellant;

Monica G. McQueen and Monica L. Johnson, for the respondent.

This conviction appeal and this application for leave to appeal sentence were heard on October 26, 2009, by Robertson, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Bell, J.A., on May 20, 2010.