R. v. Whalen, (1974) 5 Nfld. & P.E.I.R. 548 (NFCA)

• Judge: Furlong, C.J. and Mifflin, J.
• Court: Court of Appeal (Newfoundland)
• Case Date: March 26, 1974
• Jurisdiction: Newfoundland and Labrador
• Citations: (1974), 5 Nfld. & P.E.I.R. 548 (NFCA)

R. v. Whalen (1974), 5 Nfld. & P.E.I.R. 548 (NFCA)

MLB headnote and full text

R. v. Whalen

Indexed As: R. v. Whalen

Newfoundland Supreme Court

On Appeal

Furlong, C.J. and Mifflin, J.

March 26, 1974.

Summary:

This appeal arose out of the acquittal of the accused on a charge of possession of hashish for the purpose of trafficking contrary to Section 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. At his trial the accused stated that he had the hashish for his own use and that he had also shared it with his friends. The Magistrate held that the accused was guilty of possession of a narcotic but acquitted the accused on a charge of possession of a narcotic for the purpose of trafficking. The Crown appealed. The appeal court allowed the appeal and convicted the accused of possession for the purpose of trafficking. The appeal court sentenced the accused to one month imprisonment.

The appeal court held that the sharing of the hashish with friends by the accused constituted trafficking and that the accused was therefore guilty of possession for the purpose of trafficking - paragraph 5.

The appeal court held that under section 8 of the Narcotic Control Act, the burden was on the accused to prove on a balance of probabilities or by a preponderance of evidence that he was not in possession of the narcotic for the purpose of trafficking - paragraphs 6 to 16. The appeal court held that the accused failed to discharge the burden.

Criminal Law - Topic 5220

Evidence - Burden of proof - Narcotic control - Presumption of possession of narcotic for purpose of trafficking - Narcotic Control Act, R.S.C. 1970, c. N-1, s. 8 - Newfoundland Court of Appeal held that the burden was on the accused to prove on a balance of probabilities that he was not in possession of the narcotic for the purpose of trafficking - Paragraphs 6 to 16.

Criminal Law - Topic 5850

Sentence - Narcotic control - Possession of hashish for the purpose of trafficking - Accused possessed hashish for his own use and to share with his friends - Newfoundland Court of Appeal held that the accused was guilty of possession of a narcotic for the purpose of trafficking and sentenced the accused to one month imprisonment - Paragraph 17.

Narcotic Control - Topic 700

Trafficking - Defined - Newfoundland Supreme Court held that the sharing of hashish with friends by an accused constituted trafficking in a narcotic - Paragraph 5.

Words and Phrases

"Trafficking" - Newfoundland Court of Appeal discussed the meaning of the word "trafficking" as found in the Narcotic Control Act, R.S.C. 1970, c. N-1 - see paragraph 5.

Cases Noticed:

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, consd. [para. 8].

R. v. Cappello (1959), 30 C.R. 160, disapprov'd. [para. 10].

R. v. Sharpe (1961), 35 C.R. 375, disapprov'd. [para. 10].

R. v. Appleby, [1971] S.C.R. 303, appld. [para. 11].

R. v. McRae, [1969] 4 C.C.C. 374, appld. [para. 12].

R. v. Sill, [1970] 3 C.C.C. 1, refd to. [para. 14].

Statutes Noticed:

Canadian Bill of Rights. R.S.C. 1970, Appendix III, sect. 2(f) [para. 14].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 2 [para. 5]; sect. 4(2) [para. 1]; sect. 8 [para. 7].

Counsel:

David Day, for the appellant;

Gerald O'Brien, for the respondent.