R. v. Duncan (A.), 2015 ONCA 928

• Judge: Weiler, Tulloch and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 03, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 928;(2015), 343 O.A.C. 281 (CA)

R. v. Duncan (A.) (2015), 343 O.A.C. 281 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.049

Her Majesty the Queen (respondent) v. Andrew Duncan (appellant)

(C56046)

Her Majesty the Queen (respondent) v. Karen Stevenson (appellant)

(C55993; 2015 ONCA 928)

Indexed As: R. v. Duncan (A.)

Ontario Court of Appeal

Weiler, Tulloch and van Rensburg, JJ.A.

December 31, 2015.

Summary:

Duncan was convicted of numerous offences related to drugs and firearms. Stevenson was convicted of one count of conspiracy to possess the proceeds of crime. Duncan received a global sentence of 22 years' imprisonment, adjusted to 15 years to account for the principle of totality. He also received the equivalent of six years' credit for pre-sentence custody. Stevenson received an 18-month conditional sentence. Duncan and Stevenson appealed their convictions. Duncan also appealed his sentence.

The Ontario Court of Appeal held that the trial judge erred in his instructions to the jury on the firearm offences. The court therefore allowed the appeal in relation to counts 13 and 14 against Duncan and, subject to the discretion of the Crown, ordered a new trial on those two counts only. The court otherwise dismissed the balance of Duncan's conviction appeal. As the firearm convictions were set aside, the court allowed Duncan's sentence appeal and imposed a sentence of 14 years' imprisonment, less pre-sentence credit. The court dismissed Stevenson's appeal of her conviction for conspiracy to possess the proceeds of crime.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See third Criminal Law - Topic 4352 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally - Duncan was convicted of numerous offences related to drugs and firearms - Stevenson was convicted of one count of conspiracy to possess the proceeds of crime - Duncan and Stevenson appealed their convictions - Both appellants challenged the adequacy of the trial judge's instructions on the basis that he: (i) failed to sufficiently instruct the jury on the law; (ii) failed to properly summarize and review the evidence as it related to each issue to be decided; and (iii) failed to adequately present the parties' positions - The Ontario Court of Appeal concluded that on all the counts except counts 13 and 14 (the firearms offences) the trial judge appropriately parsed out the constituent elements of each offence and adequately related the evidence to the elements and the issues to be decided - He integrated his legal instruction with a focused evidentiary review in a manner that was consistent with Watt's Manual of Criminal Jury Instructions - While the charge was not perfect, that was not the standard - Trial judges were given latitude to determine the manner and extent to which evidence was reviewed and related to the essential elements of the offences and available defences - On all counts except counts 13 and 14, the court was not prepared to say that the charge failed to provide sufficient instruction to allow the jury to fully appreciate the issues and the positions of the accused - See paragraphs 19 to 83.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally - Duncan appealed his conviction for numerous offences related to drugs and firearms - The Ontario Court of Appeal held, inter alia, that the jury charge on the two firearms offences (counts 13 and 14) was deficient in a number of ways - With respect to count 13 (trafficking a firearm by offer), while the trial judge correctly set out the elements of the offence, the trial judge did not break down the elements by essential questions nor did he precisely identify the factual and legal issues to be decided - The court stated that "It is apparent from the jurors' questions that they were unclear about the applicable law and how the evidence applied to the question of 'offer'. While the trial judge, in answering the questions, remedied the deficiencies in the legal instruction to some degree, the failure to relate the evidence to the issue left the jury without sufficient guidance on how to reason through the question of whether the appellant made an offer and whether that offer was serious. I would also note that, while the trial judge indicated for the jury that an element of the offence includes proof that the appellant was not authorized to transfer a firearm, there was no discussion of what evidence related to this issue. Though defence counsel did request that the jury be instructed further on this point, the trial judge did not provide instruction or a review of the evidence on this issue" - See paragraphs 88 to 97.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally - Duncan appealed his conviction for numerous offences related to drugs and firearms - The Ontario Court of Appeal held, inter alia, that the jury charge on the two firearms offences (counts 13 and 14) was deficient in a number of ways - With respect to count 14 (conspiracy to possess an unauthorized firearm), there was no error in the trial judge's recitation of the elements of conspiracy - However, the trial judge should have provided the jury with the essential elements of the offence of unauthorized possession of a firearm - The charge on count 14 did not include a meaningful explanation of the factual or legal issues to be resolved, or a relation of the evidence to the issues - While the trial judge correctly explained the burden of proof on a conspiracy charge throughout his instructions, he was invited by defence counsel to instruct the jury that Duncan bore the onus of proving he was licenced to possess a firearm in count 14 - The trial judge unfortunately acceded to defence counsel's request - During a proceeding for an offence under s. 91 of the Criminal Code, if any question arose as to whether a person was the holder of a licence, the reverse onus in s. 117.11 of the Code required the accused to prove the existence of the licence - However, the reverse onus provision was not relevant when an accused was charged with conspiracy - The judge erred in his instruction on this point - Given the clear instructions on the burden of proof on a conspiracy throughout the jury charge, the court would not have set aside the conviction on this count based on this error alone - However, in combination with deficiencies in the trial judge's review of the evidence and failure to relate the evidence to any of the essential elements of the offence, the conviction on this count had to be set aside - See paragraphs 97 to 104.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - [See first Criminal Law - Topic 4352 ].

Criminal Law - Topic 4399.6

Procedure - Charge or directions - Jury or judge alone - Directions re elements of offence - [See second and third Criminal Law - Topic 4352 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5891 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5891 ].

Criminal Law - Topic 5857

Sentencing - Sentence - Particular offences - Conspiracy - [See Criminal Law - Topic 5891 ].

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - [See Criminal Law - Topic 5891 ].

Criminal Law - Topic 5891

Sentence - Importing or exporting a narcotic or controlled substance (incl. possession for the purpose of) - Duncan was convicted of 10 drug related charges and two firearms charges - The drug charges related to cocaine, ecstasy and marijuana - He received a global sentence of 22 years' imprisonment, adjusted to 15 years to account for the principle of totality - The three years for the firearms offences ran concurrently to the drug charges that made up the 15 year sentence - He also received the equivalent of six years' credit for pre-sentence custody - Duncan appealed his convictions and sentence - The Ontario Court of Appeal allowed the appeal in relation to the two firearms offences and set aside those convictions - The court otherwise dismissed Duncan's conviction appeal - As the firearm convictions were set aside, the court allowed Duncan's sentence appeal and imposed a sentence of 14 years' imprisonment, less pre-sentence credit - The court stated that "Without the firearm convictions, the cumulative sentence would have been 19 years for the 10 drug offences. I would apply the totality principle to the 19-year total sentence and reduce it to 14 years, less the credit for pre-sentence custody. The offences for which the appellant was convicted are serious and reflect a sophisticated and expansive network of drug trafficking. It is clear from the trial judge's reasons on sentence that Duncan's lead role in the importing, exporting, and distribution of drugs was particularly aggravating and drove the trial judge to impose a lengthy period of incarceration. The firearm-related charges factored in a minor way, particularly because no actual firearm was involved. An overall sentence of 14 years for the drug offences reflects the need for denunciation and general deterrence. It is also consistent with the principle of totality" - See paragraphs 105 to 109.

Cases Noticed:

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 27].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 28].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 28].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 29].

R. v. John, [1971] S.C.R. 781, refd to. [para. 30].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 30].

R. v. Ralph (A.), [2011] O.T.C. Uned. 3558; 2011 ONSC 3558, refd to. [para. 92].

R. v. Murdock (K.P.) (2003), 173 O.A.C. 171; 176 C.C.C.(3d) 232 (C.A.), refd to. [para. 92].

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133, refd to. [para. 99].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 102].

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. 106].

Counsel:

Ingrid Grant, for the appellant, Andrew Duncan;

Richard Litkowski, for the appellant, Karen Stevenson;

Milica Potrebic, for the respondent.

This appeal was heard on June 3, 2015, before Weiler, Tulloch and van Rensburg, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Tulloch, J.A., and was released on December 31, 2015.