R. v. McKay (T.C.) et al., (1992) 137 A.R. 56 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 23, 1992
• Citations: (1992), 137 A.R. 56 (QB)

R. v. McKay (T.C.) (1992), 137 A.R. 56 (QB)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Terry Claude McKay, John Robert Gaw, John Ronald Skidd, Edmond Frank Presault and William Cecil Paul (respondents)

(Action No. 9201-0306-C5)

Indexed As: R. v. McKay (T.C.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

November 23, 1992.

Summary:

The accused were charged with conspiracy to traffic, trafficking and possession for the purpose of trafficking cannabis resin. During the course of the jury trial on these charges, two voir dires were held with respect to relevancy and admissibility of certain evi­dence.

The Alberta Court of Queen's Bench issued decisions respecting relevancy and admissi­bility.

[Editor's note: For a related decision, see 136 A.R. 27].

Criminal Law - Topic 2683

Attempts, conspiracies, accessories and parties - Conspiracies - Evidence, admis­sibility - Gaw was charged with conspir­acy to traffic, trafficking and possession for the purpose of trafficking cannabis resin - The Crown sought to adduce evi­dence establishing a connection between Gaw and Hoogenstryd, an alleged unindic­ted coconspirator - The evidence included testimony, documents and photos pertain­ing to the alleged communication between Gaw and Hoogenstryd - The defence objected to this evidence on grounds of nonrelevancy - The Alberta Court of Queen's Bench held that the evidence was relevant and admissible because 1) there was a nexus between the evidence and the facts in issue and 2) the probative value of the evidence outweighed its prejudicial effect - See paragraphs 16 to 30.

Criminal Law - Topic 2683

Attempts, conspiracies, accessories and parties - Conspiracies - Evidence, admis­sibility - Gaw was charged with conspir­acy to traffic, trafficking and possession for the purpose of trafficking cannabis resin - The Crown sought to adduce evi­dence establishing a connection between Gaw and a container loaded in a ware­house in the Netherlands with 506 kg of cannabis resin bound for Canada - The evidence included police surveillance photographs of the warehouse where alleged unindicted coconspirators loaded the container - The defence objected to this evidence on grounds of nonrelevancy - The Alberta Court of Queen's Bench held that the evidence was relevant and admissible because 1) there was a nexus between the evidence and the facts in issue and 2) the probative value of the evidence outweighed its prejudicial effect - See paragraphs 31 to 33.

Criminal Law - Topic 2683

Attempts, conspiracies, accessories and parties - Conspiracies - Evidence, admis­sibility - McKay was charged with con­spiracy to traffic, trafficking and pos­session for the purpose of trafficking can­nabis resin - The Crown sought to adduce in evidence a change of address form and a notebook containing a list of names, quan­tities and prices, relating to sales of canna­bis resin - The last entry in the notebook was made in November 1990, before the offences for which McKay was charged here - The Alberta Court of Queen's Bench held that the notebook was inad­missible because it was not relevant or, alternatively, that the prejudicial effect of its admission outweighed its probative value - The change of address form was held to be admissible - See paragraphs 35 to 43.

Criminal Law - Topic 5202

Evidence and witnesses - General - Ad­missibility, whether relevant and material -The Alberta Court of Queen's Bench dis­cussed the process of determination of relevancy and admissibility of evidence - See paragraphs 1 to 15.

Criminal Law - Topic 5205

Evidence and witnesses - Admissibility and relevancy - General - [See Criminal Law - Topic 5202 ].

Narcotic Control - Topic 720

Offences - Trafficking - Evidence and proof - [See all three Criminal Law - Topic 2683 above].

Cases Noticed:

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1; 48 C.C.C.(2d) 1, consd. [paras. 4, 10, 38].

R. v. Burdick (1975), 27 C.C.C.(2d) 497 (Ont. C.A.), consd. [paras. 4, 11].

R. v. P.(R.) (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), folld. [para. 4].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289, consd. [para. 14].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97, consd. [para. 39].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 55 C.C.C.(3d) 1, consd. [para. 40].

R. v. Cotroni; R. v. Papalia (1979), 26 N.R. 133; 45 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 6].

R. v. Miller (1984), 12 C.C.C.(3d) 54 (B.C.C.A.), consd. [para. 41].

R. v. Wray (No. 2) (1971), 4 C.C.C.(2d) 378 (Ont. C.A.), affd. 10 C.C.C.(2d) 215 (S.C.C.), refd to. [para. 8].

R. v. Barrow (No. 2) (1989), 91 N.S.R.(2d) 176; 233 A.P.R. 176; 48 C.C.C.(3d) 308 (T.D.), refd to. [para. 17].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 45 C.C.C.(3d) 296, consd. [para. 26].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, generally [para. 26].

Authors and Works Noticed:

Cox, Criminal Evidence Handbook (2nd Ed. 1991), p. 3, paras. 1 to 4 [para. 8]; pp. 89-91, paras. 384 [para. 13]; 386-388, 396 [para. 13, 22].

MacFarlane, Drug Offences in Canada (1986), pp. 174 [paras. 5, 37]; 175 [para. 5].

McWilliams, Canadian Criminal Evidence (3rd. Ed. 1992), generally [para. 6]; pp. 3-1 to 3-4 [para. 12]; 3-6 [para. 16]; 3-19 [para. 12]; 3-25, 3-26 [paras. 9, 12].

Wigmore on Evidence, Tillers Revision, vol. 1, s. 17, p. 770 [para. 7].

Counsel:

J. Kitsul and R. Stanners, for the Crown;

A. Wenngatz, for McKay;

B. Der, for Gaw;

R. Mitchell, for Skidd;

B. Edy, for Presault;

J. Phipps, for Paul.

This matter was heard by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing decision on November 23, 1992.