R. v. Robbins (R.), 2008 NSCA 93

• Judge: Roscoe, Bateman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 25, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 93;(2008), 269 N.S.R.(2d) 363 (CA)

R. v. Robbins (R.) (2008), 269 N.S.R.(2d) 363 (CA);

    860 A.P.R. 363

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.043

Richard Robbins (appellant) v. Her Majesty the Queen (respondent)

(CAC 288769; 2008 NSCA 93)

Indexed As: R. v. Robbins (R.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Hamilton, JJ.A.

October 17, 2008.

Summary:

The accused was convicted of possession of marihuana for the purpose of trafficking and six firearms offences. He was sentenced to two years' imprisonment for trafficking and six months' concurrent for each of the firearms offences. The accused appealed the convictions and the sentences respecting the firearms.

The Nova Scotia Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4684 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused was convicted of possession of marihuana for the purpose of trafficking and six firearms offences and was sentenced to a total of two years' imprisonment - The accused's brother, who had already been convicted of trafficking, had testified that he was the owner of the marihuana and the accused was unaware of it - During sentencing, the trial judge referred to the brother's arrest and stated "[a]s Mr. Star [defence counsel] has alluded to, possibly that has distorted my mind with respect to this matter, nonetheless, it did get before me and I have to say frankly, it did make an impression." - The accused appealed, arguing that the above quotation raised a reasonable apprehension of bias - The Nova Scotia Court of Appeal rejected the argument - The trial judge was saying no more in the quotation than that he took the brother's testimony into account in reaching his decision - The court was satisfied that there was no reasonable apprehension of bias, considering the quotation in the context of the whole proceeding, including the decision - See paragraphs 37 to 41.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused was convicted of possession of marihuana for the purpose of trafficking and six firearms offences - The accused's brother testified, inter alia, that he was the owner of the marihuana found by police in a barn and that the accused and his wife were unaware of it - The accused appealed the trafficking conviction, arguing that the trial judge's reasons were inadequate because they did not explain the use he made of the brother's testimony - The Nova Scotia Court of Appeal rejected the argument - The judge's reasons were adequate - He was not required to comment on all of the evidence in his reasons - His decision made it clear that he considered the brother's evidence, accepting some and rejecting some, allowing the appellate court to perform its review function - The reasons were intelligible and provided a logical connection between the verdict and the basis for the verdict - See paragraphs 27 to 33.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The police arrested the accused's brother for drug trafficking - Three days later the police searched the accused's home and a barn located 150 to 200 feet away from the home - In the accused's house the police found firearms and ammunition, three scales, a 10 gram bag of marihuana, a drying marihuana plant, $470, marihuana seeds, and a jewellery box containing rolling paper and a piece of cannabis resin - In the barn they found 764 grams of marihuana bud, 12.808 kilograms of marihuana leaf and stalk and motorcycle parts which they thought were stolen - Personal items belonging to the wife were also found in the barn - The accused's brother, who lived across the road, testified that he was the owner of the marihuana found in the barn, that the accused and his wife were unaware of it, that he owned the stolen motorcycle parts found in the barn and that the accused knew nothing about them and had nothing to do with them - He testified that he and the accused worked together two to five days a week cutting and hauling wood from their father's land - The accused told police that the motorcycle parts were not stolen, that he had "papers" for them, that he got damaged motorcycles from a friend and money for fixing them up - The accused was convicted of, inter alia, possession of marihuana for the purpose of trafficking - His common law wife was acquitted of the same trafficking charge on the basis that she did not have the required control of the marihuana in the barn to give her "possession" - The trial judge found that the accused and his brother were effectively partners in the motorcycle business, they had a close relationship and the accused had the ability to exercise control over the marihuana - The accused appealed, arguing that the guilty verdict of trafficking was unreasonable because it was inconsistent with his wife's acquittal - The Nova Scotia Court of Appeal rejected the argument - There were no logical inconsistencies in the judge reaching these conclusions - The finding of a close relationship between the accused and his brother that did not exist with the wife, distinguished the two verdicts - See paragraphs 18 to 26.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - The accused was convicted of possession of marihuana for the purpose of trafficking and six firearms offences and was sentenced to two years' imprisonment for trafficking and six months' concurrent for each of the firearms offences - His common law wife was acquitted of the trafficking offence but convicted of the firearms offences and was fined $50 for each offence - The accused appealed the sentence respecting the firearms convictions - The Nova Scotia Court of Appeal held that the sentencing judge did not err by imposing a higher sentence on the accused than his wife for the firearms offences - Their criminal backgrounds were very different - The accused had a number of prior criminal offences including for trafficking and possession of a narcotic - The wife had none - There was a joint recommendation on sentence for the wife which the judge accepted - There was no agreement on sentence for the accused - The accused's sentences for the firearms offences were made concurrent to his sentence for the drug offence so that he would not be in jail any longer as a result of those sentences - The parity principle had little application in light of these different circumstances - See paragraph 45.

Criminal Law - Topic 5818

Sentencing - Sentencing procedure and rights of the accused - Requirement that sentence be based on evidence stated in open court - The accused was convicted of possession of marihuana for the purpose of trafficking and six firearms offences and was sentenced to a total of two years' imprisonment - The accused's brother testified that he was the owner of the marihuana and the accused was unaware of it - The accused appealed, arguing that the trial judge erred by considering information not before him, namely, reports in the public press of the brother being arrested on drug charges - The Nova Scotia Court of Appeal rejected the argument - The judge's reference in his sentencing decision to reports in the public press about the brother's arrest did not give rise to reversible error - If there were any such reports and if they were considered by the judge, they could not have added anything to the evidence that was not already before him because the brother had, inter alia, admitted his conviction during his testimony and admitted that he owned the marihuana seized - Also, his lengthy criminal record including other drug offences was also entered as an exhibit with the accused's consent - See paragraphs 33 to 36.

Cases Noticed:

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 20].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40 (S.C.C.), refd to. [para. 32].

R. v. H.S.B. (2008), 380 N.R. 130; 260 B.C.A.C. 122; 439 W.A.C. 122 (S.C.C.), refd to. [para. 32].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 38].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 43].

Counsel:

Philip Star, Q.C., for the appellant;

Paul J. Carver, for the respondent.

This appeal was heard at Halifax, N.S., on September 25, 2008, by Roscoe, Bateman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following reasons for judgment on October 17, 2008.