R. v. Connolly (M.), (2001) 226 Nfld. & P.E.I.R. 87 (NFCA)

• Judge: Mahoney, Marshall and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: April 12, 2001
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 226 Nfld. & P.E.I.R. 87 (NFCA)

R. v. Connolly (M.) (2001), 226 Nfld. & P.E.I.R. 87 (NFCA);

    673 A.P.R. 87

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. JN.013

Myles Connolly (appellant) v. Her Majesty the Queen (respondent)

(00/75; 2001 NFCA 31)

Indexed As: R. v. Connolly (M.)

Newfoundland Supreme Court

Court of Appeal

Mahoney, Marshall and Cameron, JJ.A.

July 3, 2001.

Summary

The trial judge convicted the accused of conspiracy to traffic in cannabis resin and sentenced him to 12 months' imprisonment. The accused appealed his conviction and sentence.

The Newfoundland Court of Appeal dis­missed the appeal.

Criminal Law - Topic 2647

Attempts, conspiracies, accessories and parties - Conspiracies - Elements of offence - The accused was charged with conspiracy to traffic "on, about and between" October 28, 1997 and February 12, 1998 - The trial judge found that the accused was only involved with respect to drugs seized on October 28, 1997 and there was no evidence that he participated in a conspiracy from November 1997 to February 1998 - The accused argued that the evidence did not support a finding that he was involved in a conspiracy in the time frame specified - The Newfoundland Court of Appeal rejected the argument - The Crown had presented evidence that the drugs seized on October 28, 1997, had been supplied to the accused by a known supplier and the accused would pay the supplier upon reselling the drugs - The nature of the arrangement pointed to an agreement between the supplier and the accused to traffic in drugs, one formed "on or about" October 28 - Time was not an essential element of the offence - It did not matter that the agreement might have been made before October 28 - The accused would not have been mislead about the nature of the conspiracy with which he had been charged - See paragraphs 29 to 37.

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Conspiracies - Agreement - What constitutes a conspiracy - [See Criminal Law - Topic 2647 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The accused was charged with conspiracy to traffic - The accused's brother testified that the accused had told him that his life was in danger because he was unable to pay his drug supplier because the police had seized the drugs before he could resell them - The brother testified that he attempted to help the accused by arranging a drug deal to make money to pay the accused's debt - The brother had pleaded guilty to conspir­acy to traffic and trafficking - The trial judge held that the accused's statements to his brother were admissions of trafficking -The accused appealed, arguing that the trial judge erred in not finding that his brother was a co-conspirator and in not applying the co-conspirator's exception to the hear­say rule - The Newfoundland Court of Appeal affirmed that the ac­cused's state­ments to the brother were admissions - Even if the brother was a co-conspirator, his testimony would not be subject to the co-conspirator's exception to the hearsay rule which was concerned with out-of-court statements and not evidence given at trial - See paragraphs 1 to 25.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - [See Criminal Law - Topic 2647 ].

Criminal Law - Topic 5259

Evidence and witnesses - Admissions - What constitutes - [See Criminal Law - Topic 2682 ].

Criminal Law - Topic 5264

Evidence and witnesses - Admissions - Admissibility - The Newfoundland Court of Appeal discussed informal admissions by a party and the rationale for their ad­missibility - The court stated, inter alia, that the exception to the hearsay rule for admissions should not be abandoned even if it did not strictly meet the trustworthi­ness requirements of the principled approach because "the rationale for the exception was not that of the other excep­tions" - See paragraphs 10 to 17.

Criminal Law - Topic 5298

Evidence and witnesses - Admissibility of private communications - Admissible interceptions - Evidence and proof - The accused appealed his conviction for con­spiracy to traffic - He argued that before the trial judge could draw inferences re­garding the meaning of intercepted conver­sations, she would have had to have expert evidence as to the meaning of the termi­nology used - The Newfoundland Court of Appeal rejected the argument - The court stated that in the absence of specialized terminology, unless conversations were such that a consistent code could be detected and broken, an expert could not give evidence as to the code being used - This did not mean that the trial judge could never take anything from intercepted conversations, portions of which were obviously in code - Sometimes other evi­dence would allow one to deduce the meaning of the conversation - See para­graphs 26 to 28.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The trial judge convicted the accused of conspiracy to traffic in cannabis resin - The accused's only prior conviction was for possession 16 years before - He had family support and no history of endanger­ing the safety of the community - The trial judge sentenced him to 12 months' im­prisonment - The accused appealed, argu­ing that the sentence should have been served in the community - The Newfound­land Court of Appeal held that there was no basis to interfere with the trial judge's decision - See paragraphs 38 to 41.

Criminal Law - Topic 5857

Sentence - Conspiracy - Trafficking in a narcotic - [See Criminal Law - Topic 5720.4 ].

Evidence - Topic 1761

Hearsay rule - Exceptions and exclusions - Admissions - General - [See Criminal Law - Topic 5264 ].

Evidence - Topic 2054.1

Special modes of proof - Extra judicial admissions - What constitutes - [See Criminal Law - Topic 2682 ].

Evidence - Topic 2055

Special modes of proof - Extra judicial admissions - By parties - Admissibility - General - [See Criminal Law - Topic 2682 and Criminal Law - Topic 5264 ].

Cases Noticed:

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 6].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179, refd to. [para. 8].

Myers v. Director of Public Prosecutions, [1965] A.C. 1001 (H.L.), refd to. [para. 8].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 9].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 108 D.L.R.(4th) 32, refd to. [para. 9].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 9].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 9, footnote 2].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, refd to. [para. 12].

R. v. R.F. (2000), 138 B.C.A.C. 11; 226 W.A.C. 11 (C.A.), leave to appeal dis­missed (2001), 271 N.R. 394; 157 B.C.A.C. 239; 256 W.A.C. 239 (S.C.C.), refd to. [para. 12].

R. v. Finley (Z.V.) (2000), 134 B.C.A.C. 142; 219 W.A.C. 142 (C.A.), refd to. [para. 12].

R. v. Pammer (1979), 1 Man.R.(2d) 18 (C.A.), refd to. [para. 12].

R. v. Carlson (P.A.) (1995), 64 B.C.A.C. 124; 105 W.A.C. 124 (C.A.), refd to. [para. 12].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 14].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 14].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 16].

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. 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. 26].

R. v. Hui and Ho (1988), 32 O.A.C. 141 (C.A.), refd to. [para. 27].

R. v. Ballony-Reeder (E.A.) (2001), 152 B.C.A.C. 75; 250 W.A.C. 75 (C.A.), refd to. [para. 27].

R. v. Gassyt (P.) and Markowitz (A.) (1998), 114 O.A.C. 147; 127 C.C.C.(3d) 546 (C.A.), leave to appeal refused (1999), 244 N.R. 400; 126 O.A.C. 199; 136 C.C.C.(3d) vi (S.C.C.), refd to. [para. 32].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321; 115 C.C.C.(3d) 481, refd to. [paras. 33, 34, footnote 6].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 37].

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; 102 C.C.C.(3d) 193, refd to. [para. 38].

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. 38].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 38].

Authors and Works Noticed:

Cross, Rupert, and Tapper, Colin, Evi­dence (8th Ed. 1985), p. 564 [para. 9].

Morgan, E.M., Basic Problems of Evi­dence (1962), p. 266 [para. 11, footnote 4].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (2nd Ed. 1999), c. 5, generally [para. 11].

Paciocco, David M., Charter Principles and Proof in Criminal Cases (1987), p. 315 [para. 16].

Phipson on Evidence (15th Ed. 2002), § 25-02 [para. 9].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), § 6.292 [para. 11].

Strahorn, J.S., A Reconsideration of the Hearsay Rule and Admissions (1937), 85 U. Pa. L. Rev. 564, generally [para. 11, footnote 4].

Wigmore on Evidence (1983), § 1050 [para. 10, footnote 3].

Wigmore on Evidence (Chadbourn Rev. 1972), vol. 4, pp. 4 to 5, § 1048 [para. 11, footnote 4].

Counsel:

Shelley A. Senior, for the appellant;

David A. Mills, for the respondent.

This appeal was heard on April 12, 2001, before Mahoney, Marshall and Cameron, JJ.A., of the Newfoundland Court of Appeal. Cameron, J.A., delivered the following decision for the Court of Appeal on July 3, 2001.