R. v. Gray (R.), (1998) 207 N.B.R.(2d) 69 (CA)

• Judge: Daigle, C.J., and Ayles and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: December 09, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 207 N.B.R.(2d) 69 (CA)

R. v. Gray (R.) (1998), 207 N.B.R.(2d) 69 (CA);

    207 R.N.-B.(2e) 69; 529 A.P.R. 69

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1998] N.B.R.(2d) TBEd. DE.013

Raymond Gray (appellant) v. Her Majesty the Queen (respondent)

(241/97/CA)

Indexed As: R. v. Gray (R.)

New Brunswick Court of Appeal

Daigle, C.J., and Ayles and Drapeau, JJ.A.

December 9, 1998.

Summary:

Gray was found guilty by judge and jury of conspiring to commit an indictable of­fence, i.e., smuggling into Canada dutiable goods, namely, tobacco. Gray appealed.

The New Brunswick Court of Appeal al­lowed the appeal and ordered a new trial.

[Editor's note: see also 190 N.B.R.(2d) 282; 484 A.P.R. 282.]

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Criminal Law - Topic 5301 ].

Criminal Law - Topic 2647

Attempts, conspiracies, accessories and parties - Conspiracies - Elements of of­fence - [See first Criminal Law - Topic 2673 ].

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - In his charge to the jury, the trial judge indicated that the accused Gray could not be found guilty of the alleged conspiracy unless, in addition to being a party to the conspiracy, he had received a benefit or given "instruc­tions" - The New Brunswick Court of Appeal held that the judge's instruction was clearly erroneous: "In this case, the essential elements of the conspiracy were the agreement to commit the criminal offence set out in the indictment, the inten­tion to enter into the agreement, and the intention to carry it out. ... It was therefore not necessary for Mr. Gray to either derive benefit from the conspiracy or give instruc­tions of any kind to anyone" - See para­graphs 17 to 22.

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - Gray was found guilty of conspiracy by judge and jury - Gray appealed on the ground that the jury had been improperly in­structed on the burden of proof and the defence's position - The New Brunswick Court of Appeal allowed the appeal be­cause the judge had not instructed the jury in accordance with the approach prescribed in Carter, a Supreme Court of Canada decision, that is: 1) determine if the Crown had established, beyond a reasonable doubt, the existence of the conspiracy; (2) if so, determine if the Crown had es­tablished, on a balance of probabilities, that the accused was a member of the alleged conspiracy; (3) if so, determine if the Crown had established, beyond a rea­sonable doubt, the accused's participation in the alleged conspiracy - The court or­dered a new trial - See paragraphs 17 to 33.

Criminal Law - Topic 4364

Procedure - Charge to jury - Directions regarding unanimity and disagreement - Gray was found guilty of conspiracy by judge and jury - Gray appealed - He main­tained that in his charge to the jury, the judge did not clearly explain to the jurors that they were entitled to disagree with the majority - The New Brunswick Court of Appeal rejected this ground of appeal: "The judge's instructions on this matter were unambiguous and there is no question that the jurors understood that they did not have to reach an agreement on a verdict" - See paragraph 23.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Convicted of conspiracy, Gray ar­gued on appeal that the Crown had failed in its duty to disclose - In particular, he complained that the Crown did not tell him what co-conspirators Tupper and Swazey were going to say at trial - The Crown's answer was that it did not have in its possession or control, written statements by Tupper and Swazey or police notes of these statements - In addition, the Crown stated it could not provide Gray with an account of the co-conspirators' presumed testimony because it did not know what they were going to say at trial - The New Brunswick Court of Appeal rejected Gray's argument - See paragraphs 4 to 8.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - The New Brunswick Court of Appeal held that since subsections (1) to (4) of section 189 of the Criminal Code had been repealed in 1993, the Crown no longer had the burden of establishing the legality of an inter­ception - It was for the accused to establish on a balance of probabilities that his Charter rights had been violated by the interception - It was accordingly no longer necessary for the authorization itself to be admitted in evidence before allowing the contents of the private communications to be admitted - See paragraphs 9 to 16.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta.L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, folld. [para. 4].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, refd to. [para. 7].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1; [1996] 2 W.W.R. 153, consd. [para. 8].

R. v. Aspinall (1876), 2 Q.B.D. 48 (C.A.), consd. [para. 20].

R. v. O'Brien, [1954] S.C.R. 666, refd to. [para. 21].

R. v. Cook (1984), 3 O.A.C. 146; 39 C.R.(3d) 300 (C.A.), affd. (1986), 65 N.R. 156; 12 O.A.C. 317; 50 C.C.C.(3d) 96 (S.C.C.), refd to. [para. 21].

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; 3 C.R.(4th) 246, refd to. [para. 21].

R. v. LeBlanc (J.H.) (1995), 165 N.B.R.(2d) 237; 424 A.P.R. 237 (C.A.), not appl. [para. 23].

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, appl. [para. 25].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 29].

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; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 29].

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. 29].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 30].

R. v. Lord (D.C.), [1995] 1 S.C.R. 747; 178 N.R. 152; 53 B.C.A.C. 243; 87 W.A.C. 243, refd to. [para. 31].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 85 C.C.C.(3d) 97; 13 Alta. L.R.(3d) 1; 25 C.R.(4th) 46, refd to. [para. 31].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147; 105 C.C.C.(3d) 205, refd to. [para. 31].

R. v. Duff (G.A.) (1994), 95 Man.R.(2d) 167; 70 W.A.C. 167; 90 C.C.C.(3d) 460 (C.A.), refd to. [para. 31].

R. v. Dickson (J.) (1996), 22 O.T.C. 169; 33 W.C.B.(2d) 209 (Gen. Div.), refd to. [para. 31].

R. v. Hill (R.) (1995), 83 O.A.C. 99; 102 C.C.C.(3d) 469; 21 W.C.B.(2d) 179 (C.A.), refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 189(5) [para. 14]; sect. 645(5) [para. 11].

Counsel:

Gilles C. Thibodeau, Q.C., for the appel­lant;

Ian S. Purvis, Q.C., and Nicole Poirier, for the Crown.

This appeal was heard on September 10, 1998 before Daigle, C.J., and Ayles and Drapeau, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered on December 9, 1998 by Drapeau, J.A.