R. v. Bussey (S.) et al., (1999) 176 Nfld. & P.E.I.R. 181 (NFCA)

• Judge: Wells, C.J.N., Gushue and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: November 01, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 176 Nfld. & P.E.I.R. 181 (NFCA)

R. v. Bussey (S.) (1999), 176 Nfld. & P.E.I.R. 181 (NFCA);

    540 A.P.R. 181

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. JL.003

Scott Bussey (appellant) v. Her Majesty The Queen (respondent)

(No. 97/79)

Gary Fraser (appellant) v. Her Majesty The Queen (respondent)

(No. 97/84)

Indexed As: R. v. Bussey (S.) et al.

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., Gushue and Green, JJ.A.

June 29, 1999.

Summary:

The accused (Bussey and Fraser) and others were charged with conspiracy to traffic in cocaine.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 151 Nfld. & P.E.I.R. 141; 471 A.P.R. 141, convicted the accused. Subsequently, the court, in a decision reported at 150 Nfld. & P.E.I.R. 151; 470 A.P.R. 151, sentenced Fraser to 10 years' imprisonment. The court, in a decision reported 150 Nfld. & P.E.I.R. 245; 470 A.P.R. 245, sentenced Bussey to nine years' imprisonment. The accused appealed their convictions and sentences.

The Newfoundland Court of Appeal dismissed the conviction appeals. The court allowed the sentence appeals and reduced the accused's sentences.

Criminal Law - Topic 2680

Attempts, conspiracies, accessories and parties - Conspiracies - Evidence - The accused and others were charged with conspiracy to traffic in cocaine - The Crown alleged that the accused were attempting to hire a vessel to meet a ship suspected of carrying large quantities of cocaine - The suspect ship sank and no drugs were recovered - Parsons, the primary Crown witness, was a police agent, an admitted liar, thief, drug user and trafficker - The trial judge found that Parsons was a disreputable witness - However, the trial judge held that there was evidence to corroborate Parsons' testimony - The Newfoundland Court of Appeal affirmed the conviction of the accused - See paragraphs 11 to 61.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The Newfoundland Court of Appeal stated that "the law is that the evidence of 'an admitted liar, thief, drug user and trafficker', or even a perjurer, can be relied upon, particularly if there is 'a clear sharp warning' as to the risks, and the trier of fact 'finds something in the nature of confirmatory evidence'." - See paragraph 13 - The court rejected the argument that the evidence of a proven liar or perjurer could not be corroborated - See paragraphs 27, 28.

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5321

Evidence and witnesses - Corroboration - [See Criminal Law - Topic 4377 and Evidence - Topic 5203 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See both Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic - Bussey, aged 33, was convicted of conspiracy to traffic in a narcotic - Bussey participated in the planning of the trafficking operation - He introduced his co-conspirators to a police agent who was supposed to arrange the offloading of the ship which carried the drugs - Bussey was serving a four year sentence for another conspiracy to traffic conviction - He was employed and had a common law wife and a daughter - The trial judge sentenced Bussey to nine years' imprisonment, consecutive to the sentence he was presently serving - On appeal, the Newfoundland Court of Appeal reduced the sentence to seven years' imprisonment where the decision relied on by the trial judge in determining sentence had been varied on appeal - See paragraphs 70, 71, 77 to 84.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic - Fraser, aged 35, was convicted of conspiring to traffic in cocaine - No drugs were recovered because the ship carrying the drugs sank, however the resources expended implied that a large quantity was involved - Fraser had been previously imprisoned for drug offences - He was a leader in the conspiracy and was a contact with the drug kingpins - Fraser had a common law wife and two young children - Fraser was serving a four year sentence for other drug offences that occurred after the present offence - The trial judge sentenced Fraser to 10 years' imprisonment consecutive to the sentence he was presently serving - On appeal, the Newfoundland Court of Appeal reduced the sentence to eight years' imprisonment where the decision relied on by the trial judge in determining sentence had been varied on appeal - See paragraphs 72 to 84.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See both Criminal Law - Topic 5850 ].

Evidence - Topic 5202

Witnesses - Corroboration - When required - [See Criminal Law - Topic 4377 ].

Evidence - Topic 5203

Witnesses - Corroboration - What constitutes corroboration - The Newfoundland Court of Appeal stated that "[c]orroboration of evidence of an otherwise disreputable witness does not require that each fact, to be used from that evidence, be independently established on separate totally reliable evidence. Rather, it requires that independent evidence establish such facts as are necessary to indicate that, in some material particular, the evidence given by the disreputable witness, relating to the matter or person in issue, is true, and that the story as a whole credibly hangs together." - See paragraph 45.

Narcotic Control - Topic 761

Offences - Conspiracy to traffic - [See Criminal Law - Topic 2680 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, refd to. [para. 11].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 13].

R. v. Rooke and De Vries, [1990] 1 S.C.R. 1020; 108 N.R. 234; 77 C.R.(3d) 397; 56 C.C.C.(3d) 220, refd to. [para. 14].

R. v. Saunders - see R. v. Rooke and De Vries.

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133; 93 D.L.R.(3d) 161; 45 C.C.C.(2d) 1, refd to. [para. 15].

R. v. Douglas and Douris, [1991] 1 S.C.R. 301; 122 N.R. 1; 47 O.A.C. 1; 63 C.C.C.(3d) 29, refd to. [para. 16].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 137 D.L.R.(3d) 387; 67 C.C.C.(2d) 568; 31 C.R.(3d) 97, refd to. [para. 17].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 45 D.L.R.(4th) 487; 38 C.C.C.(3d) 193; 61 C.R.(3d) 305, refd to. [para. 19].

R. v. Buell (K.D.) (1996), 146 Nfld. & P.E.I.R. 173; 456 A.P.R. 173 (P.E.I.C.A.), refd to. [para. 20].

R. v. Hillier (L.) et al. (1993), 109 Nfld. & P.E.I.R. 92; 343 A.P.R. 92 (Nfld. T.D.), refd to. [para. 21].

R. v. Collins (L.) et al. (1999), 172 Nfld. & P.E.I.R. 1; 528 A.P.R. 1; 133 C.C.C.(3d) 8 (Nfld. C.A.), refd to. [para. 22].

R. v. Baron and Wertman (1976), 31 C.C.C.(2d) 525 (Ont. C.A.), refd to. [para. 24].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258; [1974] 2 W.W.R. 524; 14 C.C.C.(2d) 385; 42 D.L.R.(3d) 142; 25 C.R.N.S. 296, refd to. [para. 25].

R. v. Burke (J.) (No. 3) (1996), 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147; 105 C.C.C.(3d) 205 (S.C.C.), refd to. [para. 25].

R. v. G.G. (1995), 80 O.A.C. 12; 97 C.C.C.(3d) 362 (C.A.), refd to. [para. 26].

Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056 (H.L.), refd to. [para. 27].

Director of Public Prosecutions v. Kilbourne, [1973] 1 All E.R. 440 (H.L.), refd to. [para. 27].

Boardman v. Director of Public Prosecutions (1974), 60 Cr. App. Rep. 165 (H.L.), refd to. [para. 28].

R. v. Bell (1983), 50 N.R. 172; 8 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 32].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; [1990] 4 W.W.R. 577; 77 C.R.(3d) 327; 56 C.C.C.(3d) 161, refd to. [para. 46].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 48].

R. v. Lagmoniere (G.H.) (1995), 127 Nfld. & P.E.I.R. 173; 396 A.P.R. 173 (Nfld. T.D.), refd to. [para. 62].

R. v. Gauthier (G.) (1995), 130 Nfld. & P.E.I.R. 257; 405 A.P.R. 257 (Nfld. T.D.), refd to. [para. 62].

R. v. Cyr (H.J.) (1997), 150 Nfld. & P.E.I.R. 1; 470 A.P.R. 1 (Nfld. C.A.), refd to. [para. 62].

R. v. Cyr (O.) (1998), 161 Nfld. & P.E.I.R. 80; 497 A.P.R. 80 (Nfld. C.A.), refd to. [para. 62].

R. v. Gauthier (G.) (1999), 173 Nfld. & P.E.I.R. 181; 530 A.P.R. 181 (Nfld. C.A.), refd to. [para. 62].

R. v. Trepanier et al. (1989), 79 Nfld. & P.E.I.R. 185; 246 A.P.R. 185 (Nfld. T.D.), refd to. [para. 62].

R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115; 481 A.P.R. 115 (Nfld. C.A.), refd to. [para. 65].

R. v. J.M. (1998), 160 Nfld. & P.E.I.R. 38; 494 A.P.R. 38 (Nfld. C.A.), refd to. [para. 65].

R. v. Shropshire (M.T.) (1995), 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 65].

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; 105 C.C.C.(3d) 327, refd to. [para. 65].

R. v. MacDonnell (F.E.) (1997), 210 N.R. 318; 158 N.S.R.(2d) 1; 466 A.P.R. 1; 114 C.C.C.(3d) 436 (S.C.C.), refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 25].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1976), vol. 11, p. 44 [para. 15].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 914 [para. 47].

Counsel:

Jerome Kennedy, for the appellant, Bussey;

Kevin Burke, Q.C., and Allison Wheeler, for the appellant, Fraser;

Mark Pike, for the respondent.

This appeal was heard on September 21, 1998, before Gushue, C.J.N. * , Green and Wells, JJ.A., of the Newfoundland Court of Appeal. On June 29, 1999, Wells, C.J.N. * , delivered the following judgment for the Court of Appeal.

* Gushue, J.A., ceased to be Chief Justice effective November 1, 1998. Wells, J.A., was appointed Chief Justice on January 11, 1999.