R. v. Luu (J.), (2015) 472 Sask.R. 56 (CA)

• Judge: Jackson, Ottenbreit and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 19, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 472 Sask.R. 56 (CA);2015 SKCA 128

R. v. Luu (J.) (2015), 472 Sask.R. 56 (CA);

    658 W.A.C. 56

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.037

Jamie Luu (appellant) v. Her Majesty the Queen (respondent)

(CACR2534; 2015 SKCA 128)

Indexed As: R. v. Luu (J.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Ryan-Froslie, JJ.A.

October 19, 2015.

Summary:

The accused and Ly were jointly charged with unlawfully possessing cocaine for the purposes of trafficking; possessing currency over $5,000 knowing that it was obtained as a result of an indictable offence; and conspiring with persons unknown to commit trafficking of cocaine and possessing cocaine for the purpose of trafficking. Part way through the Crown's case, Ly absented herself from the trial. The trial judge found that she had absconded, made an order declaring that she had waived her right to be present at her trial and proceeded to conduct the trial in her absence. In relation to the accused, the essential issues were whether there was a conspiracy and whether he was apart of it.

The Saskatchewan Provincial Court drew inferences adverse to Ly from the fact of her abscondment and found her guilty on all three counts. In relation to the accused, the court followed the analysis set out in R. v. Carter (1982, SCC) and found him guilty on all counts. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The accused and Ly were jointly charged with unlawfully possessing cocaine for the purposes of trafficking; possessing currency over $5,000 knowing that it was obtained as a result of an indictable offence; and conspiring with persons unknown to commit trafficking of cocaine and possessing cocaine for the purpose of trafficking - A third person was charged separately - The trial judge found Ly guilty on all three counts - In relation to the accused, the judge followed the analysis set out in R. v. Carter (1982, SCC) and found him guilty on all counts - The accused appealed, asserting that the judge failed to provide adequate reasons for the convictions - The Saskatchewan Court of Appeal dismissed the appeal - The accused overstated the law regarding reasons and over looked how the trial played out - Neither the Crown nor the accused's counsel spent much time on the law at trial - The case was about what factual inferences to draw from the evidence - In his reasons for decision, the judge opened by specifically addressing the defence counsel's concerns about how the police conducted the surveillance operation and the evasiveness of one of the police witnesses - The judge essentially agreed that the investigation was not without its difficulties, but concluded that the problems with the evidence did not determine the outcome - Since the judge did not reject the police evidence, he had to weigh it to determine whether the Crown had met the burden of proving its case - The issue then became whether the judge's reasons provided no significant impediment to exercising the right of appeal from conviction - The court considered the grounds of appeal and concluded that they permitted appellate review - See paragraphs 12 to 20.

Criminal Law - Topic 1984

Possession or laundering of proceeds of crime - Evidence and proof - The accused and Ly were jointly charged with unlawfully possessing cocaine for the purposes of trafficking; possessing currency over $5,000 knowing that it was obtained as a result of an indictable offence; and conspiring with persons unknown to commit trafficking of cocaine and possessing cocaine for the purpose of trafficking - A third person was charged separately - The trial judge found Ly guilty on all three counts - In relation to the accused, the judge followed the analysis set out in R. v. Carter (1982, SCC) respecting the co-conspirators exception to the hearsay rule and found him guilty on all counts - The accused appealed, asserting that the judge should have set out the law in relation to each offence, including an analysis that particularized the actus reus and the mens rea of each offence apart from the Carter analysis - In particular, in relation to the conspiracy charge, the accused asserted that the Crown did not prove the existence of an agreement and that he was part of such an agreement - The Saskatchewan Court of Appeal dismissed the appeal - It had been unnecessary to resort to the Carter exception - Participation in the conspiracy could be proven by direct and circumstantial evidence, which appeared to be what the judge found in this case - While the judge purported to follow the Carter test, he did not rely on any acts or declaration by any co-conspirator to make his ultimate finding of proof beyond a reasonable doubt - He considered all of the evidence - The evidence of conduct that assisted the unlawful act was strong - In those circumstances, even if the judge's reasons revealed error, the court would invoke s. 686(1)(b)(iii) of the Criminal Code - Having concluded that the accused was guilty of the conspiracies, largely on the basis of inferences drawn from who possessed the drugs and the proceeds, it was a short step for the judge to conclude that Ly was guilty of possessing the money along with the accused and the accused was guilty of possessing the cocaine along with Ly - Circumstantial evidence was offered as proof of a number of key elements: (i) the existence of the conspiracy; (ii) the accused's membership in it; and (iii) the accused's knowledge and control over the money and cocaine in the hotel room - There was no error - See paragraphs 21 to 37.

Criminal Law - Topic 2647

Conspiracies - Elements of offence - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 2650

Conspiracies - Agreement - What constitutes a conspiracy - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 2680

Conspiracies - Evidence - General - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 2681

Conspiracies - Circumstantial evidence - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 2682

Conspiracies - Evidence - Conspirator's exception to hearsay rule - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Verdict unreasonable or unsupported by evidence - The accused appealed his convictions for possession of cocaine for the purposes of trafficking; possessing currency over $5,000 knowing that it was obtained as a result of an indictable offence; and conspiring with persons unknown to commit trafficking of cocaine and possessing cocaine for the purpose of trafficking, asserting that the verdicts were unreasonable or unsupported by the evidence - The Saskatchewan Court of Appeal stated that the accused's argument on this point amounted to a claim that the trial judge "should" have found a reasonable doubt - A claim that a verdict was unreasonable or was not supported by the evidence did not permit appellate re-evaluation in that manner - The accused's convictions were not verdicts that a properly instructed jury or judge could not reasonably have rendered - The judge indicated the evidence upon which he relied for each step of his analysis - It could not be said that the verdicts were plainly contradicted by other evidence or shown to be incompatible with evidence that had not otherwise been contradicted - In such circumstances, there was no basis to give effect to this ground of appeal - See paragraphs 38 to 40.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 1984 ].

Narcotic Control - Topic 584

Offences - Possession - General - Conspiracy to possess for the purpose of trafficking - [See Criminal Law - Topic 1984 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Criminal Law - Topic 1984 ].

Narcotic Control - Topic 606

Offences - Possession - Evidence - Circumstantial evidence - [See Criminal Law - Topic 1984 ].

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. 8].

R. v. Roth (D.G.) (2009), 406 Sask.R. 1; 2009 SKPC 129, refd to. [para. 8].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 13].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 13].

R. v. Thompson (R.D.) et al. (2015), 460 Sask.R. 98; 639 W.A.C. 98; 323 C.C.C.(3d) 514; 2015 SKCA 59, refd to. [para. 21].

R. v. Aden (M.A.) - see R. v. Thompson (R.D.) et al.

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 21].

R. v. Mapara (S.) (2003), 179 B.C.A.C. 92; 295 W.A.C. 92; 180 C.C.C.(3d) 184; 2003 BCCA 131, affd. [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 21].

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321 (C.A.), refd to. [para. 21].

R. v. N.Y. (2012), 298 O.A.C. 297; 2012 ONCA 745, refd to. [para. 21].

R. v. J.F., [2013] 1 S.C.R. 565; 440 N.R. 69; 301 O.A.C. 156; 2013 SCC 12, refd to. [para. 21].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 34].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 39].

Counsel:

Balfour Der, Q.C., for the appellant;

Wade McBride, for the respondent.

This appeal was heard and decided orally on October 19, 2015, by Jackson, Ottenbreit and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., subsequently delivered the following written reasons for the court.