R. v. Cloutier, (1979) 28 N.R. 1 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 28, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 28 N.R. 1 (SCC);[1979] SCJ No 67 (QL);48 CCC (2d) 1;1979 CanLII 25 (SCC);99 DLR (3d) 577;[1979] 2 SCR 709;12 CR (3d) 10;28 NR 1;3 WCB 377

R. v. Cloutier (1979), 28 N.R. 1 (SCC)

MLB headnote and full text

R. v. Cloutier

Indexed As: R. v. Cloutier

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

June 28, 1979.

Summary:

This case arose out of a charge against the accused of importing marijuana contrary to the Narcotic Control Act, R.S.C. 1970, c. N-1, s. 51(1). The accused was charged before a judge and jury and was acquitted. The Quebec Court of Appeal allowed the Crown's appeal, quashed the verdict of not guilty and ordered a new trial on the grounds of irregularities in the selection of the jury and the jury charge and the improper exclusion of evidence offered by the Crown. The accused appealed. The Supreme Court of Canada allowed the appeal and restored the acquittal of the accused. The Supreme Court of Canada held that, although irregularities had occurred in the jury selection, the Crown was not prejudiced. See paragraphs 6 to 52 and 107 to 153. The Supreme Court of Canada held that the trial judge properly excluded a waybill offered by the Crown (see paragraphs 55 to 68 and 156 to 169) and evidence offered to show that the accused was a user of marijuana for the purpose of showing motive, intention and lack of innocence (see paragraphs 69 to 95 and 170 to 196). Pigeon and Martland, JJ., dissenting, would have dismissed the appeal and were of the opinion that a new trial was warranted because the waybill and the evidence that the accused was a user of marijuana should have been admitted. See paragraphs 203 to 246. Beetz, J., dissenting, was of the opinion that the trial judge should have admitted the waybill and would have remitted the matter to the Court of Appeal to determine if a new trial was warranted. See paragraphs 247 to 250.

Criminal Law - Topic 164

Elements of criminal conduct - Motive - The accused was charged with importing marijuana - The Crown sought to prove that the accused was a marijuana user to show that he had motive for importing - The Supreme Court of Canada held that, while proof of motive is admissible as circumstantial evidence, the use of marijuana by the accused was not a fact which showed motive for importing - See paragraphs 7 to 90, 108 to 191.

Statutes - Topic 2601

Interpretation of words and phrases - Interpretation by context - General - The Supreme Court of Canada held that legislative provisions should not be interpreted in isolation, but only with consideration of the object of the statute in which it is contained and of related provisions taken as a whole - See paragraphs 20 to 23, 122 to 125.

Criminal Law - Topic 2759

Parties to offences - Jury charge - The accused was charged with importing marijuana as a principal - The trial judge refused to instruct the jury on parties of offences, because the accused was the only one alleged to be involved - The Supreme Court of Canada held that the trial judge was correct in not instructing the jury on parties, where there was no evidence to suggest that the accused aided anyone in committing the offence charged - See paragraphs 96 to 100, 197 to 201.

Criminal Law - Topic 4313

Procedure - Jury - Questioning of prospective jurors - After a juror was sworn the trial judge permitted counsel for the accused to ask 2 more questions of the juror - Following the questions the triers again found the juror impartial - The Supreme Court of Canada held that, while it was wrong to permit further questions to the juror, no prejudice resulted and there was no reversible error - See paragraphs 47 to 51, 148 to 152.

Criminal Law - Topic 4320

Procedure - Jury - Challenges - Peremptory challenges - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 562, 563, 567, 568, 569 - The Supreme Court of Canada held that the accused may peremptorily challenge a juror after the juror has been found to be impartial by the triers - The Supreme Court of Canada discussed the nature of peremptory challenges - See paragraphs 6 to 37, 107 to 138 - The Supreme Court of Canada held that, if an accused is erroneously denied a peremptory challenge, he is entitled to a new trial and it is not necessary for him to prove prejudice - See paragraphs 38 to 40, 139 to 141.

Criminal Law - Topic 4854

Appeals - Grounds - Grounds which may be raised by only one party - The trial judge wrongly denied the accused a peremptory challenge of a juror - The accused was acquitted - The Crown on appeal relied on the error of the trial judge in refusing the accused the peremptory challenge - The Supreme Court of Canada held that only the accused could raise the refusal of the peremptory challenge as a ground of appeal and that it was not open to the Crown to rely on it - See paragraphs 41 to 46, 142 to 147.

Criminal Law - Topic 4954

Appeals - New trials - Grounds - Error of trial judge in jury selection - The Supreme Court of Canada held that where an accused is wrongly denied a peremptory challenge of a juror, he is entitled to a new trial and it is not necessary for him to prove prejudice - See paragraphs 38 to 40, 139 to 141.

Criminal Law - Topic 5205

Evidence - Relevancy - General - The accused was charged with importing marijuana - The Crown sought to introduce various evidence to show that the accused was a user of marijuana for the purpose of showing motive, intention and lack of innocence - The Supreme Court of Canada in ruling that the evidence was inadmissible because it was irrelevant, discussed the general rule that evidence must be relevant to the charge to be admissible - See paragraphs 72 to 80, 173 to 181.

Criminal Law - Topic 5212

Evidence - Similar fact evidence - General - The accused was charged with importing marijuana - The Crown sought to introduce various evidence to show that the accused was a user of marijuana for the purpose of showing motive, intention and lack of innocence - The Supreme Court of Canada held that the evidence was inadmissible - The Supreme Court of Canada held that evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit crimes of the kind and is positively probative in regard to the crime charged - See paragraphs 72 to 86 and 173 to 187.

Evidence - Topic 1595

Hearsay rule exceptions - Business records - Waybill - Carriage by Air Act, R.S.C. 1970, c. C-14, Schedule 1, Arts. 6, 8 - Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30 - The accused was charged with importing marijuana, which was allegedly brought into Canada by air freight - The trial judge refused to admit into evidence the fourth original copy of the waybill offered by the Crown - The Supreme Court of Canada held that the waybill was not admissible unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act, because the Carriage by Air Act sanctioned only three original copies of the waybill - See paragraphs 55 to 68 and 156 to 169.

Cases Noticed:

R. v. Battista, 21 C.C.C. 1, appld. [paras. 10, 111].

R. v. Bottomley, 16 Cr. App. R. 184, appld. [paras. 10, 111].

R. v. Stewart, [1932] S.C.R. 612 appld. [paras. 10, 111].

Rose v. The Queen, [1973] C.A. 579, appld. [paras. 13, 114].

Canada Sugar Refining Co. v. R., [1898] A.C. 735, appld. [paras. 22, 123].

Morin v. The Queen (1890), 18 S.C.R. 407, appld. [paras. 29, 130].

R. v. Ward, 22 C.R.N.S. 153, appld. [paras. 32, 133].

R. v. Churton, 31 C.C.C. 188, appld. [paras. 39, 140].

R. v. Williams, 19 Cr. App. R. 57, appld. [paras. 39, 140].

R. v. Page, [1965] Crim. L.R. 444, appld. [paras. 39, 140].

R. v. Edmonds, 4 B. & Ald. 471, appld. [paras. 40, 141].

R. v. Lalonde, 7 Q.B. 201, appld. [paras. 42, 143].

R. v. Elliott, 22 C.R.N.S. 142, appld. [paras. 42, 143].

Whelan v. The Queen, 28 U.C. Q.B. 108, consd. [paras. 45, 146].

McLean v. The King, [1933] S.C.R. 688, consd. [paras. 45, 146].

R. v. Man Hung, 17 B.C.R. 56, appld. [paras. 51, 152].

Re Martin and the Queen (1973), 11 C.C.C.(2d) 224, dist. [paras. 58, 159].

R. v. Boyle and Merchant, 10 Cr. App. R. 180, appld. [paras. 75, 176].

Noor Mohamed v. The King, [1949] A.C. 182, appld. [paras. 76, 177].

R. v. Barbour, [1938] S.C.R. 465, appld. [paras. 77, 178].

R. v. Bond, [1906] 2 K.B. 389, appld. [paras. 77, 178].

Boardman v. D.P.P., [1974] 3 All E.R. 887, appld. [paras. 78. 179].

Thompson v. The King, [1918] A.C. 221, appld. [paras. 79, 180, 212, 213].

Beaver v. The Queen, [1957] S.C.R. 531, appld. [paras. 83, 184].

R. v. Boyer, 4 C.R.N.S. 127, appld. [paras. 83, 184].

R. v. Blondin, 2 C.C.C.(2d) 118, appld. [paras. 83, 184].

Rance v. Herron, 62 Cr. App. R. 118, appld. [paras. 86, 187].

R. v. Scarrott, 65 Cr. App. R. 125, appld. [paras. 86, 187].

R. v. Levac, 32 C.C.C.(2d) 357, dist. [paras. 91, 192].

Thompson v. The King, [1918] A.C. 221, appld. [paras. 94, 195].

Baker v. The King, [1926] S.C.R. 92, appld. [paras. 212, 313].

R. v. Thompson, [1918] A.C. 221, appld. [paras. 79, 180, 212, 313].

R. v. Gaich (1956), 24 C.R. 196, consd. [paras. 214, 315].

R. v. Hannam, [1964] 2 C.C.C. 340, consd. [paras. 215, 316].

R. v. Sims, [1946] 1 K.B. 531, consd. [paras. 217, 318].

R. v. Gillingham (1939), 27 Cr. App. R. 143, consd. [paras. 218, 319].

R. v. Cooper (1977), 14 N.R. 181; [1978] 1 S.C.R. 860, consd. [paras. 221, 322].

Vezeau v. The Queen (1976), 8 N.R. 235; [1977] 2 S.C.R. 277, refd to. [paras. 248, 349].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1970, c. C-10, sect. 30 [paras. 59, 205, 160, 306].

Carriage by Air Act, R.S.C. 1970, c. C-14, Schedule 1, art. 6 [paras. 61, 162]; art. 8 [paras. 62, 163].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21 [paras. 96, 197]; sect. 562, sect. 563, sect. 567, sect. 568, sect. 569 [paras. 16, 117].

Authors and Works Noticed:

Blackstone, Commentaries on the Laws of England (Lewis Ed.), vol. 4, p. 1738, No 353 [paras. 24, 125].

Blackstone, Commentaries on the Laws of England (4th Ed. 1769), vol. 4 p. 347 [paras. 36, 137].

Chitty on Criminal Law (1826), vol. 1, p. 145 [paras. 12, 113].

Cross on Evidence (4th Ed.), p. 16 [paras. 73, 174].

Halsbury's Laws of England, (4th Ed.), vol. 17, para. 5, p. 7 [paras. 72, 173].

Hawkins, Pleas of the Crown, vol. 2, p. 569 [paras. 36, 137].

Smith and Hogan, Criminal law (4th Ed.), p. 64 [paras. 222, 324].

Stephen, History of the Criminal Law of England, vol. 1, p. 303 [paras. 36, 137].

Taschereau, The Criminal Law consolidation and Amendment Acts of 1869 on a 32-33 Vict., for the Dominion of Canada, vol. 2, p. 204 [paras. 12, 113].

Taschereau, The Criminal Code, 1893, p. 782 [paras. 13, 114].

Williams, Textbook of Criminal Law, p. 56 [paras. 87, 188].

Counsel:

Roch A. Fournier, for the appellant;

Jejean Paul, for the respondent.

This case was heard on December 13, 1978, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.

On June 28, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

PRATTE, J. - see paragraphs 1 to 101 (English language version) and 102 to 202 (French language version);

PIGEON, J., dissenting - see paragraphs 203 to 224 English language version) and 225 to 246 (French language version);

BEETZ, J., dissenting - see paragraphs 247 to 248 (English language version) and 249 to 250 (French language version).

LASKIN, C.J.C., RITCHIE, SPENCE, DICKSON and ESTEY, JJ., concurred with PRATTE, J.

MARTLAND, J., concurred with PIGEON, J.