R. v. Sekhon (A.S.), (2014) 351 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 20, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 351 B.C.A.C. 1 (SCC);2014 SCC 15;[2014] ACS no 15;367 DLR (4th) 601;[2014] SCJ No 15 (QL);[2014] 1 SCR 272

R. v. Sekhon (A.S.) (2014), 351 B.C.A.C. 1 (SCC);

    599 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2014] B.C.A.C. TBEd. FE.044

Ajitpal Singh Sekhon (appellant) v. Her Majesty The Queen (respondent)

(35180; 2014 SCC 15; 2014 CSC 15)

Indexed As: R. v. Sekhon (A.S.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.

February 20, 2014.

Summary:

A truck driven by the accused was stopped at the border by Canada Customs inspectors. The accused was questioned, then his truck was searched. Fifty kilograms of cocaine was found inside a hidden compartment in the truck bed. The accused was convicted of importing cocaine and possessing cocaine for the purposes of trafficking. The accused appealed.

The British Columbia Court of Appeal, Newbury, J.A., dissenting, in a judgment reported (2012), 331 B.C.A.C. 170; 565 W.A.C. 170, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, McLachlin, C.J.C., and LeBel, J., dissenting, dismissed the appeal. The trial judge admitted and relied on inadmissible anecdotal evidence by a police expert witness, but s. 686(1)(b)(iii) of the Criminal Code applied to dismiss the appeal notwithstanding the serious error, where the verdict would necessarily have been the same given the overwhelming circumstantial evidence that led to no other rational conclusion but that the accused had knowledge of the cocaine.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Evidence - Topic 7002 ].

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 Evidence - Topic 7002 ].

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - [See Evidence - Topic 7002 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A truck driven by the accused was stopped at the border by Canada Customs inspectors - Fifty kilograms of cocaine, having a wholesale value of $1.5-1.75 million, was found in a hidden compartment in the truck bed - The accused, who alleged that he was just driving the truck home to Canada as a favour to an acquaintance, was convicted in a judge-alone trial of importing cocaine and possessing cocaine for the purposes of trafficking - The evidence against the accused was circumstantial - The issue was whether the accused had knowledge of the cocaine - The Crown adduced expert evidence by a police officer who had investigated over 1,000 such cases - The officer properly testified as to matters within his expertise, but also gave anecdotal evidence that in the over 1,000 cases he had investigated, he had never encountered a case where it was evident that the courier did not know that cocaine was being transported (i.e., a blind courier) - The trial judge, in convicting the accused, referred to the anecdotal evidence - The British Columbia Court of Appeal affirmed the convictions - The Supreme Court of Canada dismissed the accused's appeal - The officer's anecdotal evidence was neither relevant, necessary nor probative to the issue of the accused's knowledge of the cocaine - There was also a concern as to the prejudicial effect of that evidence - The evidence was contrary to the Crown's burden to prove mens rea beyond a reasonable doubt by appearing to require the accused to somehow prove that notwithstanding the expert's past experience, his situation was different - However, the court applied s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the serious evidentiary error, because the remaining evidence of the accused's knowledge was so overwhelming that the trial judge would have inevitably convicted the accused - The circumstantial evidence led to only one rational conclusion: that the accused knew that the cocaine was hidden in the truck.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See Evidence - Topic 7002 ].

Narcotic Control - Topic 544

Offences - Importation - Evidence and proof - [See Evidence - Topic 7002 ].

Narcotic Control - Topic 580

Offences - Possession - General - Knowledge - [See Evidence - Topic 7002 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 43].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 43].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 43].

R. v. Turner, [1975] 1 Q.B. 834, refd to. [para. 45].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 46].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 53].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 53].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 57].

R. v. Sarrazin (R.) et al., [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 57].

R. v. Joyal (1990), 55 C.C.C.(3d) 233 (Que. C.A.), refd to. [para. 73].

R. v. Ballony-Reeder (E.A.) (2001), 152 B.C.A.C. 75; 250 W.A.C. 75; 88 B.C.L.R.(3d) 237; 2001 BCCA 293, refd to. [para. 73].

R. v. Klassen (R.E.) (2003), 179 Man.R.(2d) 115; 2003 MBQB 253, refd to. [para. 73].

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. 84].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, 2007 SCC 6, refd to. [para. 86].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(ii), sect. 686(1)(b)(iii) [para. 52].

Authors and Works Noticed:

Béliveau, Pierre, and Vauclair, Martin, Traité général de preuve et de procédure pénales (20th Ed. 2013), pp. 1294, 1295 [para. 86].

McCormick, Charles Tilford, McCormick on Evidence (3rd Ed. 1984), p. 544 [para. 44].

Counsel:

Eric V. Gottardi and Kathleen M. Bradley, for the appellant;

Martha M. Devlin, Q.C., and Chris Greenwood, for the respondent.

Solicitors of Record:

Peck and Company, Vancouver, B.C., for the appellant;

Attorney General of Canada, Vancouver, B.C., for the respondent.

This appeal was heard on November 8, 2013, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On February 20, 2014, the judgment of the court was delivered in both official languages and the following opinions were filed:

Moldaver, J. (Abella, Rothstein, Karakatsansis and Wagner, JJ., concurring) - see paragraphs 1 to 58;

LeBel, J. (McLachlin, C.J.C., concurring), dissenting - see paragraphs 59 to 99.