R. v. Heaton (J.H.), (2014) 451 Sask.R. 153 (CA)

• Judge: Jackson, Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 16, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 451 Sask.R. 153 (CA);2014 SKCA 140

R. v. Heaton (J.H.) (2014), 451 Sask.R. 153 (CA);

    628 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.006

Her Majesty the Queen (appellant) v. Jason Harry Heaton (respondent)

(CACR2399; 2014 SKCA 140)

Indexed As: R. v. Heaton (J.H.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Herauf, JJ.A.

December 31, 2014.

Summary:

Heaton was charged with possession of cocaine for the purpose of trafficking. He testified and admitted to possessing cocaine for the purpose of trafficking within the time period covered in the information, but his admission referred to cocaine other than what had been the focus of the trial up to that point. The trial judge concluded that Heaton's admissions fell squarely within the information, but that it would be unfair to convict him on those admissions because the case against him had completely changed. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittal and entered a conviction. The matter was remitted to the trial judge for sentencing.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 4401 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 4401 ].

Civil Rights - Topic 4401

Protection against self-incrimination - Self-incriminating testimony - General - Heaton was charged that "on or about June 26, 2013" he possessed cocaine for the purpose of trafficking - The primary theory of the Crown's case was that Heaton had control over a Pontiac G6 and, therefore, he legally possessed the contraband found in it, which included 17.8 grams of cocaine - Heaton testified - He admitted possessing cocaine for the purpose of trafficking on the night of June 25, 2013, but he said he had none left when he and the driver of the Pontiac G6 arrived back at his home in the early hours of June 26, 2013 - Heaton was acquitted - The trial judge had a reasonable doubt that Heaton was in possession of the vehicle or its contents - The trial judge concluded that Heaton's admissions of possessing cocaine for the purpose of trafficking on June 25, 2013, fell squarely within the information, but it would be unfair to convict him on those admissions because the case against him had completely changed from the case he had to meet when he chose to testify - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal - The trial judge erred in law by concluding that while Heaton's admissions fell squarely within the cocaine related allegation as it had been charged, the case had completely changed and it would be unfair to convict him on that basis - The judge either erred in law by misapplying the law in relation to the principle against self-incrimination or by confining the Crown to the particulars of its initial theory, as opposed to the charge, or he misapprehended the evidence, which included possession of other cocaine as part of the Crown's case - The principle against self-incrimination was not infringed - Heaton's admission to possessing cocaine was not a separate transaction from the charges framed - It was validly subsumed within the charge before the court - All the findings necessary to support a verdict of guilty had been explicitly made - The court therefore entered a conviction.

Criminal Law - Topic 50

General principles - Protection against self-incrimination - General principles - [See Civil Rights - Topic 4401 ].

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - [See Civil Rights - Topic 4401 ].

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - [See Civil Rights - Topic 4401 ].

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of Court of Appeal - Power to substitute a verdict - [See Civil Rights - Topic 4401 ].

Criminal Law - Topic 5057

Appeals - Substitution of verdict - Substitution of conviction - [See Civil Rights - Topic 4401 ].

Cases Noticed:

R. v. Murray (R.J.) (2003), 241 Sask.R. 101; 313 W.A.C. 101; 2003 SKCA 120, consd. [para. 16].

R. v. Pangman (W.G.) et al. (1999), 143 Man.R.(2d) 175 (Q.B.), refd to. [para. 22].

R. v. Popovic and Askov (1974), 16 C.C.C.(2d) 238 (Ont. C.A.), affd. [1976] 2 S.C.R. 308; 7 N.R. 231, refd to. [para. 23].

R. v. Govedarov, Popovic and Askov - see R. v. Popovic and Askov.

R. v. Groot (N.) (1998), 112 O.A.C. 303; 129 C.C.C.(3d) 293 (C.A.), affd. [1999] 3 S.C.R. 664; 144 C.C.C.(3d) 287, refd to. [para. 23].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 24].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201; 166 D.L.R.(4th) 385, refd to. [para. 24].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 30].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 30].

R. v. Pincemin (D.D.) (2004), 249 Sask.R. 86; 325 W.A.C. 86; 2004 SKCA 33, consd. [para. 31].

R. v. Wynnychuk (1962), 132 C.C.C. 227 (Alta. S.C.), refd to. [para. 32, footnote 2].

R. v. Pendleton (1982), 1 C.C.C.(3d) 228 (Ont. C.A.), refd to. [para. 32, footnote 2].

R. v. Drolet, [1990] 2 S.C.R. 1107; 138 N.R. 305; 55 Q.A.C. 59, affing. (1988), 20 Q.A.C. 94 (C.A.), refd to. [para. 32, footnote 2].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 33].

R. v. McCune (M.B.) (1998), 116 B.C.A.C. 267; 190 W.A.C. 267; 131 C.C.C.(3d) 152 (C.A.), dist. [para. 41].

R. v. Zoe (H.), [2009] Northwest Terr. Cases Uned. 19; 2009 NWTTC 19, dist. [para. 41].

R. v. Gormley (G.J.) (1999), 180 Nfld. & P.E.I.R. 181; 548 A.P.R. 181; 140 C.C.C.(3d) 110 (P.E.I.C.A.), appld. [para. 46].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 51].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 54].

Counsel:

Wade McBride and Alexandra Pace, for the appellant;

Jane Basinski, for the respondent.

This appeal was heard on December 16, 2014, before Jackson, Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on December 31, 2014.