R. v. Munro (S.)

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Baynton, J.
• Citation: 2001 SKQB 138,(2001), 204 Sask.R. 300 (QB)
• Date: 14 March 2001
• Subject Matter: CRIMINAL LAW,EVIDENCE,NARCOTIC CONTROL

R. v. Munro (S.) (2001), 204 Sask.R. 300 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. MR.057

Her Majesty the Queen v. Shaun Munro

(2000 Q.B.N.J. No. 1; 2001 SKQB 138)

Indexed As: R. v. Munro (S.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

March 14, 2001.

Summary:

The accused was charged with trafficking and possession for the purposes of traffick­ing, under ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act. The accused was the sole driver and, for a time, the sole occupant of a car that contained 16 pounds of cannabis marihuana. At issue was whether the Crown had proven that the accused was in possession of the drugs in the sense of having the requisite knowledge of their presence and the requisite degree of control over them.

The Saskatchewan Court of Queen's Bench convicted the accused.

Criminal Law - Topic 2788

Attempts, conspiracies, accessories and parties - Evidence - Admissibility of acts done in furtherance of a common design - Andres and Ironstand were under police surveillance - Andres drove into a Wal-Mart parking lot, left his vehicle and entered the passenger seat of Munro's green car - Ironstand arrived in a third vehicle, removed 10 pounds of marihuana from Munro's car and sold it to an under­cover police officer - The Crown tendered evidence by the undercover officer that Ironstand told him that Andres had advised him that the location of the drug transac­tion was being changed to the Wal-Mart parking lot and that the drugs would be delivered in a green car - Munro objected that the statement was hearsay - The Saskatchewan Court of Queen's Bench held that the state­ment was admissible where it represented words spoken in furtherance of a common design - Alternatively, it was admissible as evidence to establish Mun­ro's state of mind, including his knowledge of the presence of the drugs in his car - See paragraphs 8 to 9.

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's case - Whether evidence consistent with other rational conclusions - The accused was the sole driver and, for a time, the sole occupant of a small car that contained 16 pounds of cannabis marihuana - Another individual removed 10 pounds of marihuana from the back seat of the car and sold it to an undercover police officer - The car also contained a scale that was par­tially enclosed in a flimsy bag in obvi­ous view - At issue was whether the Crown had proven that the accused was in possession of the drugs in the sense of having the requisite knowledge of their presence and the requi­site degree of con­trol over them - The Saskatchewan Court of Queen's Bench applied the rule in Hodge's case and con­victed the accused.

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's case - Whether evidence consistent with other rational conclusions - The Saskat­chewan Court of Queen's Bench stated that "the rule [in Hodge's case] provides in effect that a conviction cannot be entered on the basis of circumstantial evidence that is consistent with guilt if there is any other reasonable conclusion that can be drawn from the evidence that is inconsistent with guilt. ... But the court is not permitted to indulge in speculation. Accordingly, spec­ulation alone cannot constitute a 'reasona­ble conclusion' or a 'rational explanation' within the meaning of the ... rule. To put it another way, the Crown need not negate every possible explanation or conjecture that might be consistent with the innocence of the accused unless it is based on some evi­dence before the court." - See para­graphs 13 to 14.

Evidence - Topic 1666

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - State­ments of design or plan - [See Criminal Law - Topic 2788 ].

Evidence - Topic 1669

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - State­ments of opinion, belief or knowledge - [See Criminal Law - Topic 2788 ].

Narcotic Control - Topic 606

Offences - Possession - Evidence - Cir­cumstantial evidence - [See first Evidence - Topic 306 ].

Narcotic Control - Topic 606

Offences - Possession - Evidence - Cir­cumstantial evidence - The Saskatchewan Court of Queen's Bench stated that "the existence or absence of an explanation is relevant to the issue of how the court is to treat circumstantial evidence. Such evi­dence is often termed 'proof by inference' because it consists of rational deductions that naturally flow from proven facts established by the direct evidence in the case. The law is clear that the Crown is entitled to rely on direct and circumstantial evidence to establish proof of guilt, and in particular to establish state of mind including, in a drug case, knowledge of the presence of drugs. Usually there is no direct evidence of a person's state of mind and it can only be inferred from the sur­rounding circumstances." - See paragraph 12.

Narcotic Control - Topic 630

Offences - Possession - Burden of proof - Burden on accused - [See second Nar­cotic Control - Topic 606 ].

Cases Noticed:

R. v. Koufis, [1941] S.C.R. 481, appld. [para. 8].

Paradis v. R., [1934] S.C.R. 165, appld. [para. 8].

R. v. Ly (C.), [1997] 3 S.C.R. 698; 219 N.R. 237; 206 A.R. 309; 156 W.A.C. 309, appld. [para. 9].

R. v. Noble (S.J.) (1997), 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385 (S.C.C.), consd. [para. 10].

R. v. Francois (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161; 91 C.C.C.(3d) 289; 31 C.R.(4th) 201, refd to. [para. 10].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385; 36 C.R.(4th) 145, refd to. [para. 10].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 113 D.L.R.(4th) 461; 89 C.C.C.(3d) 289; 29 C.R.(4th) 209; 21 C.R.R.(2d) 1, refd to. [para. 10].

R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.), refd to. [para. 12].

R. v. Larier (1960), 35 C.R. 61 (Sask. C.A.), refd to. [para. 12].

Hodge's Case (1838), 168 E.R. 1136, appld. [para. 13].

R. v. Williams (C.) (1998), 110 O.A.C. 348; 125 C.C.C.(3d) 552 (C.A.), refd to. [para. 14].

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. 15].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 15].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 15].

R. v. Russell (M.E.) (2000), 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379 (S.C.C.), refd to. [para. 15].

R. v. Avetysan (A.) (2000), 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338 (S.C.C.), refd to. [para. 15].

R. v. Piaskowski (1979), 52 C.C.C.(2d) 316 (Ont. C.A.), refd to. [para. 16].

R. v. Sandhu (1989), 35 O.A.C. 118; 50 C.C.C.(3d) 492 (C.A.), not folld. [para. 17].

R. v. Tewari (1987), 36 C.C.C.(3d) 150 (B.C.C.A.), refd to. [para. 17].

R. v. Oluwa (J.) (1996), 75 B.C.A.C. 284; 123 W.A.C. 284; 107 C.C.C.(3d) 236 (C.A.), supplementary reasons (1996), 80 B.C.A.C. 3; 130 W.A.C. 3; 110 C.C.C.(3d) 95 (C.A.), refd to. [para. 17].

R. v. Rathod (1993), 61 Q.A.C. 171 (C.A.), refd to. [para. 17].

R. v. Barbeau (1996), 110 C.C.C.(3d) 69 (Que. C.A.), refd to. [para. 17].

Counsel:

Horst Dahlem, Q.C., for the Crown

Silas Halyk, Q.C., and Catherine Knox, for the accused.

This trial was heard by Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following oral judgment on March 14, 2001.