R. v. Greene, (1976) 11 Nfld. & P.E.I.R. 322 (NFCA)

• Judge: Furlong, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 03, 1976
• Jurisdiction: Newfoundland and Labrador
• Citations: (1976), 11 Nfld. & P.E.I.R. 322 (NFCA)

R. v. Greene (1976), 11 Nfld. & P.E.I.R. 322 (NFCA);

    22 A.P.R. 322

MLB headnote and full text

R. v. Greene

Indexed As: R. v. Greene

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

December 3, 1976.

Summary:

This case arose out of a charge against the accused of possession of marijuana for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The accused took a quantity of marijuana on consignment with the intention of selling it. The accused changed his mind about keeping or selling the marijuana and was taking it in his car to return it, when he was apprehended. The accused was charged with possession for the purpose of trafficking. The trial judge acquitted the accused. The Crown appealed.

The Newfoundland Court of Appeal dismissed the appeal and affirmed the acquittal of the accused. The Appeal Division held that to constitute trafficking the transporting must be more than carrying or moving the marijuana from one place to another and must be done for the purpose of promoting the distribution of the marijuana to another. Gushue, J.A., dissenting, in the Newfoundland Court of Appeal, would have allowed the appeal and convicted the accused.

Gushue, J.A., was of the opinion that in returning the marijuana the accused was transporting it within the meaning of s. 2 of the Narcotic Control Act.

Criminal Law - Topic 7275

Summary convictions - Informations - Amendment - General - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 529 - Matter of substance - Date of offence - Whether Court has power to amend - The accused took a quantity of marijuana on consignment with the intention of selling it - Several days later the accused changed his mind about keeping or selling the marijuana and on October 4 was taking it in his car to return it, when he was apprehended - The accused was charged with possession for the purpose of trafficking on October 4 - The trial judge refused to allow amendment of the information to conform with the evidence to include dates other than October 4 - The Newfoundland Court of Appeal affirmed the refusal to amend by the trial judge - The Appeal Division held that the date was a matter of substance and there was no power to amend the information - See paragraphs 12, 18, 20 to 21 and 35 to 38.

Narcotic Control - Topic 712

Trafficking - Defined - Narcotic Control Act, R.S.C. 1970, c. N- 1, s. 2 - Transporting - The accused took a quantity of marijuana on consignment with the intention of selling it - The accused changed his mind about keeping or selling the marijuana and was taking it in his car to return it, when he was apprehended - The Newfoundland Court of Appeal affirmed the decision of the trial judge that the accused was not in possession for the purpose of trafficking - The Appeal Division held that to constitute trafficking the transporting must be more than carrying or moving the marijuana from one place to another and must be done for the purpose of promoting the distribution of the marijuana to another.

Cases Noticed:

R. v. Whelan (1974), 5 Nfld. & P.E.I.R. 548; 17 C.C.C.(2d) 162, consd. [para. 7].

Brodie et al. v. The King, [1936] S.C.R. 188; 65 C.C.C. 289; [1936] 3 D.L.R. 81, appld. [para. 21].

R. v. Harrington and Scosky (1963), 43 W.W.R.(N.S.) 337, appld. [para. 25].

R. v. Steele, 102 C.C.C. 273, appld. [para. 37].

R. v. Larson, 18 C.R.N.S. 149, refd to. [para. 42].

R. v. Young (1971), 2 C.C.C.(2d) 560, refd to. [para. 42].

R. v. Hupe, Forsyth and Patterson, 122 C.C.C. 346, refd to. [para. 42].

R. v. Taylor, 17 C.C.C.(2d) 36, refd to. [para. 42].

R. v. Verge (1971), 3 C.C.C.(2d) 398, refd to. [para. 42].

R. v. O'Connor, 29 C.R.N.S. 100, refd to. [para. 42].

Poitras v. The Queen, 24 C.R.N.S. 159, refd to. [para. 42].

R. v. Jimmo, 16 C.C.C.(2d) 396, folld. [para. 42].

R. v. MacDonald et al.; R. v. Harrington and Scossky, [1964] 1 C.C.C. 189, folld. [para. 42].

Statutes Noticed:

Food and Drugs Act, R.S.C. 1970, c. F-27 [para. 43].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 529 [para. 21].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 2 [para. 9]; sect. 4(2) [para. 1]; sect. 8 [para. 3].

Authors and Works Noticed:

Concise Oxford Dictionary (5th Ed.), [para. 42].

Counsel:

Claude Matthews, Q.C., for the appellant;

William Collins, for the respondent.

This case was heard at St. John's, Newfoundland, before FURLONG, C.J.N., and MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On December 3, 1976, the judgment of the Court of Appeal was delivered and the following opinions were filed.

FURLONG, C.J.N. - see paragraphs 1 - 15.

MORGAN, J.A. - see paragraphs 16 - 29.

GUSHUE, J.A., [dissenting] - see paragraphs 30 - 45.