R. v. F., M.

R. v. F., M. Collection Decisions of the Court of Appeal Date 2000-06-09 Docket numbers C33294 Judges Morden, John Wilson; Austin, Allan McNiece; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 20000609 DOCKET: C33294 COURT OF APPEAL FOR ONTARIO MORDEN, AUSTIN AND GOUDGE JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) ) Robert Frater Appellant ) for the appellant ) - and - ) ) M. F. (A Young Person) ) Howard Borenstein ) for the respondent Respondent ) ) Heard: May 30, 2000 ) Appeal from an acquittal by Main J. dated November 15, 1999. MORDEN J.A. (orally): [1] The Crown appeals from the respondent’s acquittal by Justice Main, sitting as a youth court judge, on a charge of unlawfully trafficking “in a substance represented or held out to be a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act.” [2] The only witness who testified at the trial was a constable with the Toronto Police Force. She had been on the force for fourteen years. She was working as an undercover officer in the area in question. She attended a convenience store in an area well known for drug activity with the intention of making a purchase of crack cocaine. She approached the respondent and another male, the respondent’s brother, standing in front of a convenience store. She asked the other male if he knew where she could “get something”. He asked what she wanted and she replied “just a forty piece.” She gave evidence that “forty piece” was common street terminology for crack cocaine and that she had used the term herself while buying crack cocaine. She had made 75 to 100 undercover purchases and was not aware that the term could have any other meaning. [3] The second male asked her to follow him and the respondent directed her to go to a building. When they got there, the second male told her that the respondent would deal with her. She asked the respondent “You got it?” He said “Yeah” and held out his hand in which there was a small plastic bag that contained something. She handed to him $40.00 and asked him “Is it good?” He replied “Yeah.” The respondent and the second male were arrested shortly thereafter. [4] The item obtained by the officer was a grey plastic bag. It was opened shortly after at the police office. It was clear to the officer that the substance was not crack cocaine. She testified that it looked like common blackboard chalk. She stated that she had seen crack cocaine and this substance was different in colour and texture. Defence counsel did not cross- examine the officer and admitted that the “buy” money issued to the officer was found in the respondent’s possession on arrest. [5] The trial judge acquitted the respondent on the basis that the Crown had failed to prove that the substance represented by the respondent to be cocaine was not, in fact, cocaine. [6] Section 5(1) of the Controlled Drugs and Substances Act reads: No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. [7] The question has been decided by authority, R. v. Masters (1973), 12 C.C.C. (2d) 573 (Ont. Cty. Ct.), conviction aff’d. (1994), 15 C.C.C. (2d) 142 (Ont. C.A.). In this case the accused was charged with trafficking in a substance held out to be a narcotic, namely heroin. At the close of the Crown’s case he moved for dismissal of the charge on the ground that the Crown had failed to adduce evidence that the substance which was sold to an undercover officer was not, in fact, a narcotic. [8] Honsberger Co. Ct. J. at pp. 574-75 said: It is my opinion that the Crown does not have to prove what the substance was or was not, only that whatever it was, was it in fact held out or represented to be a narcotic? The essence of the offence prohibited by s. 4(1) of the Narcotic Control Act is trafficking. If the trafficking alleged to be was a narcotic, then proof that the substance was a narcotic is essential to the Crown’s case. This may be proved by resorting to s.9. If, however, the trafficking alleged was in a substance represented or held out to be a narcotic, to my mind it does not matter what the substance was. It is the proof of the representing or holding out as a narcotic which is the essential element to the Crown’s case. (Emphasis added.) At p. 576 he said: Therefore, I find that the Crown need not prove what in fact the substance was, on a charge such as here. There is evidence that there was a substance offered and held out to be a narcotic. [9] Honsberger Co. Ct. J. dismissed the motion and the accused was subsequently convicted and sentenced. He appealed his conviction and sentence to this court. At p. 143 of 15 C.C.C. (2d), Martin J.A. said for the court: The Court was unanimously of the view that there was no merit in the appeal from conviction and did not call upon counsel for the Crown with respect to this branch of the appellant’s appeal. [10] The factums filed on the appeal show that the challenged correctness of Honsberger Co. Ct. J’s ruling was the first ground of appeal put before the court. It is clear, then, that the actus reus of the offence charged is, simply, the selling, etc., of something and representing it to be a controlled substance. The mens rea is the intention to do this. R. v. Masters has been applied in R. v. Merritt (1975), 27 C.C.C. (2d) 156 (N.B.C.A.) and R. v. Webster (1992), P.E.I.J. No. 64 (Q.L.) (P.E.I.S.C. (T.D.)). [11] The appellant has brought to our attention, as possibly causing some confusion, the later decision of this court in R. v. Bollers (1979), 52 C.C.C. (2d) 62. In Bollers, the accused was charged with trafficking “in a substance represented or held out by him to be a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Terahydrocannabinol (THC), contrary to Section 4(1) of the Narcotic Control Act.” [12] There was evidence that the “THC” that was sold on the street was not THC (the narcotic content in cannabis sativa) but PCP, also a narcotic. PCP is not a derivative of cannabis sativa. There appeared to be evidence that the accused had sold PCP to an undercover officer. Houlden J.A. said for the court at pp.63-64: Although Mr. Rosenberg based his appeal on a number of alleged errors by the trial Judge, we think the appeal can be decided on the following ground. Having alleged that the appellant represented or held out that the substance trafficked in was tetrahydrocannabinol, the Crown had the onus of proving that this substance was that drug: see R. v. Merritt (1975), 27 C.C.C. (2d) 156 at p. 160, 11 N.B. (2d) 393, and R. v. Gladstone and Rodriguez (1977), 37 C.C.C. (2d) 185. The only evidence on this point was that given by Sergeant Jackson. The Crown, therefore failed to meet the onus that rested on it and the conviction cannot stand. [13] In the light of the evidence referred to in the reasons, we think that Bollers held that the evidence did not establish that the accused had represented or held out the particular substance which the indictment alleged he had represented or held out. This was a different issue from that in Masters. Accordingly, we do not think Bollers is contrary to Masters. [14] The respondent has sought to uphold the acquittal on the basis that the trial judge never dealt with whether he was satisfied that the respondent in fact held out the substance to be cocaine. This was not raised as an issue at the trial and, in fact, in submissions made to the trial judge after the evidence had been called the whole of the Crown’s case was admitted except for the “legal issue” relating to the Crown not proving that the substance was not cocaine. In any event, there was ample evidence upon which the trial judge could conclude, as we are satisfied that he implicitly did, that the respondent held out that what he was selling was cocaine. [15] The appeal is allowed and a finding of guilt is made. Counsel agreed that this court should impose the disposition and that a fit disposition, in all of the circumstances, would be one year probation on the statutory terms. There is no reason for us not to accept this submission and, accordingly, we place the respondent on probation for one year on the statutory terms. Released: June 9, 2000 “J.W. Morden J.A.” “I agree Austin J.A.” “I agree S.T. Goudge J.A.”