R. v. Paquet (R.) et al., (1999) 219 N.B.R.(2d) 130 (CA)

• Judge: Ryan, Turnbull and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 16, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 219 N.B.R.(2d) 130 (CA);1999 CanLII 2259 (NB CA);219 NBR (2d) 130;140 CCC (3d) 283;[1999] NBJ No 493 (QL)

R. v. Paquet (R.) (1999), 219 N.B.R.(2d) 130 (CA);

    219 R.N.-B.(2e) 130; 561 A.P.R. 130

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. NO.033

Raymond Paquet, Sherry Guest and William Green (appellants) v. Her Majesty The Queen (respondent)

(154/97/CA)

Indexed As: R. v. Paquet (R.) et al.

New Brunswick Court of Appeal

Ryan, Turnbull and Drapeau, JJ.A.

November 9, 1999.

Summary:

Paquet, Guest and Green were tried and convicted by a judge and jury on three separate indictments in a single trial. The various charges included conspiracy to com­mit the indictable offence of smuggling tobacco into Canada and conspiracy to com­mit the indictable offence of possession of contraband tobacco products. The accused appealed.

The New Brunswick Court of Appeal allowed the appeal, quashed the convictions and ordered a separate trial for each indict­ment.

Criminal Law - Topic 2673

Conspiracies - Jury charge - The accused were convicted of conspiracy charges - They appealed arguing, inter alia, that the trial judge erred in allowing the Crown to adduce evidence that some of the named co-conspirators pled guilty to the very charges on which the accused were being tried - The New Brunswick Court of Ap­peal stated that it was improper for the Crown to lead that evidence since it was irrelevant to the accuseds' guilt and highly prejudicial - The trial judge erred in allow­ing it to form part of the record submitted to the jury for its consideration - Any mention of guilty pleas by alleged co-conspirators should provoke a clear and sharp instruc­tion to the jury that it ought to disregard that evidence in arriving at its verdict - See paragraphs 22 and 23.

Criminal Law - Topic 2673

Conspiracies - Jury charge - Paquet, Guest and Green were convicted by a judge and jury in a trial involving four persons ac­cused on three separate indictments charg­ing differently constituted groups of ac­cused with different conspiracies - The Crown relied on what it contended were acts and declarations of co-conspirators made in furtherance of the conspiracy - The New Brunswick Court of Appeal held that the trial judge committed reversible errors by failing to instruct the jury to deal with the evidence in accordance with the three-step process adopted in R. v. Carter (S.C.C.) and failing to identify the evi­dence that could be considered at each step of that process - See paragraphs 26 to 28.

Criminal Law - Topic 2942

Jurisdiction - Loss or suspension of juris­diction - Acts resulting in - [See Criminal Law - Topic 4479 ].

Criminal Law - Topic 4354

Procedure - Jury charge or directions - Directions regarding pleas of co-accused, accomplices or co-conspirators - [See both Criminal Law - Topic 2673 ].

Criminal Law - Topic 4362

Procedure - Jury charge or directions - Directions regarding separation of evidence against several accused in a joint trial - Paquet, Guest and Green were convicted by a judge and jury in a trial involving four persons accused on three separate indictments charging differently constituted groups of accused with different conspir­acies - One of the indictments involved two counts - The New Brunswick Court of Appeal held that, with respect to the multi-count indictment, the trial judge committed a reversible error by failing to compart­mentalize for the jury, in any useful form, the evidence that was germane to each accused on each count - See paragraph 25.

Criminal Law - Topic 4367

Procedure - Jury charge or directions - Directions regarding separation of evidence respecting several counts - [See Criminal Law - Topic 4362 ].

Criminal Law - Topic 4479

Procedure - Trial - Separate trial for each indictment or information - Paquet, Guest and Green were convicted by a judge and jury in a trial involving four persons ac­cused on three separate indictments charg­ing differently constituted groups of ac­cused with different conspiracies - The accused appealed contesting the jurisdiction of the court below - The New Brunswick Court of Appeal allowed the appeal, quashed the convictions and ordered a separate trial for each indictment - The three indictments could not, as a matter of law, be tried together - Therefore, the trial was a nullity - The appeal could not be dismissed as an inconsequential procedural irregularity at trial (Criminal Code, s. 686(1)(b)(iv)) - The accused may have suffered real prejudice by the confusion that ensued from the tangled web of rel­evant and irrelevant evidence that engulfed the trial - See paragraphs 12 to 21.

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See Criminal Law - Topic 4479 ].

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of inten­tion to offer the communication as evi­dence - The accused were convicted of conspiracy charges - They appealed argu­ing, inter alia, that the trial judge erred in allowing into evidence the contents of intercepted communications without proof that the Crown gave the accused reason­able notice of its intention to adduce the communications (Criminal Code, s. 189(5)) - The New Brunswick Court of Appeal agreed that the trial judge erred - Without such proof, the contents of the private communications could not be received in evidence - See paragraph 24.

Criminal Law - Topic 5473

Evidence and witnesses - Joint or separate trials - Separation or "boxing" of evidence - [See Criminal Law - Topic 4362 ].

Criminal Law - Topic 5508

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. (incl. co-conspirators) - Guilty plea or conviction - [See first Criminal Law - Topic 2673 ].

Cases Noticed:

R. v. Clunas, [1992] 1 S.C.R. 595; 134 N.R. 268; 52 O.A.C. 130, refd to. [para. 1].

Crane v. Director of Public Prosecutions, [1921] 2 A.C. 299, refd to. [para. 12].

R. v. Phillips and Phillips, [1983] 2 S.C.R. 161; 48 N.R. 372, refd to. [para. 12].

R. v. Khan, [1984] 2 S.C.R. 62; 54 N.R. 276, refd to. [para. 12].

R. v. Phillips and Phillips (1981), 37 N.B.R.(2d) 72; 97 A.P.R. 72 (C.A.), refd to. [para. 14].

R. v. Kennedy, [1971] 2 O.R. 445 (C.A.), refd to. [para. 18].

Chief Constable of Norfolk v. Clayton, [1983] 2 W.L.R. 513 (H.L.), refd to. [para. 18].

R. v. Kingston (A.W.) (1996), 179 N.B.R.(2d) 369; 455 A.P.R. 369 (C.A.), refd to. [para. 18].

R. v. McGowan and Gard, [1999] E.W.J. No. 2829 (E.W.C.A.), refd to. [para. 22].

R. v. Dixon et al. (1984), 16 C.C.C.(3d) 431 (B.C.C.A.), refd to. [para. 22].

R. v. Lessard (1979), 50 C.C.C.(2d) 175 (Que. C.A.), refd to. [para. 22].

R. v. May (1984), 4 O.A.C. 383; 13 C.C.C.(3d) 257 (C.A.), leave to appeal refused [1984] 2 S.C.R. viii; 56 N.R. 259, refd to. [para. 22].

R. v. Moore (1956), 40 Cr. App. R. 50 (C.A.), refd to. [para. 23].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186; 51 C.C.C.(3d) 417, refd to. [para. 24].

R. v. Lincoln (1944), 29 Cr. App. R. 191 (C.A.), refd to. [para. 25].

Harris v. Director of Public Prosecutions (1952), 36 Cr. App. R. 39 (H.L.), refd to. [para. 25].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 31 C.R.(3d) 97, refd to. [para. 26].

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. 26].

R. v. Gray (R.) (1998), 207 N.B.R.(2d) 69; 529 A.P.R. 69 (C.A.), refd to. [para. 26].

R. v. Cox, [1995] 2 Cr. App. R. 513 (C.A.), refd to. [para. 27].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 27].

Counsel:

John C. Friel, Q.C., for the appellants;

Ian S. Purvis, Q.C., for the respondent.

This appeal was heard on September 16, 1999, before Ryan, Turnbull and Drapeau, JJ.A., of the New Brunswick Court of Ap­peal. Drapeau, J.A., delivered the follow­ing judgment on November 9, 1999, for the court.