R. v. Mills
- Citation
- 2020 BCCA 228
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 13 August 2020
- Posture
- Criminal Appeal From Conviction and Sentence / Court of Appeal Judgment (appeal Heard and Decided)
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 13 August 2020
- Posture
- Criminal Appeal From Conviction and Sentence / Court of Appeal Judgment (appeal Heard and Decided)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The charge and subsequent recharges adequately distinguished knowledge of the object's character from knowledge of its presence so that convictions on counts 1 and 2 were supportable by a properly instructed jury, but count 3 is duplicative of count 1 and a judicial stay of proceedings is entered under Kienapple.
Court disposition
Appeal allowed in part: convictions on counts 1 and 2 upheld; judicial stay of proceedings entered on count 3.
Orders
- Convictions on counts 1 and 2 affirmed.
- Judicial stay of proceedings entered with respect to count 3.
- Original sentence imposed at trial was six years imprisonment on count 1 and one year concurrent on count 2 (count 3 sentence noted but stayed).
02
Material facts
Parties
Regina
Respondent Counsel: L.T. PhippsGary Kenneth Mills
Appellant Counsel: D.J. McKayAmounts and remedies
- Counts Charged: 3
- Sentence Count1 Years: 6
- Sentence Count2 Years: 1
- Sentence Count3 Years Recorded at Trial: 1
03
Procedural history
Posture
Criminal Appeal From Conviction and Sentence / Court of Appeal Judgment (appeal Heard and Decided)
04
Questions and positions
Legal issues
- 01
Whether the trial judge erred in instructing the jury on the essential element of knowledge for constructive possession
- 02
Whether the convictions were unreasonable on the evidence
- 03
Whether Kienapple bars prosecution on the lesser overlapping count (count 3)
Party arguments
- Applicant
- The trial judge's charge confused the jury by treating an admission about the nature of the firearm as satisfying knowledge for possession; the jury's questions show confusion; alternatively the verdicts were unreasonable given possible DNA contamination and multiple persons associated with the vehicle.
- Respondent
- The charge, including the recharge and answers to jury questions, correctly explained constructive possession and limited the use of admissions; the verdicts on counts 1 and 2 were ones a properly instructed jury could reach; if Kienapple applied counsel agreed a stay on count 3 would be appropriate.
05
Court’s reasoning
Legal principles
- 01
R. v. Morelli, 2010 SCC 8
Elements of constructive possession require proof of (1) knowledge of the character of the object, (2) knowingly putting or keeping the object in a particular place, and (3) intention to have it there for use or benefit
- 02
R. v. Araya, 2015 SCC 11
An accused is entitled to an adequate jury charge; adequacy judged by charge as a whole and trial context
- 03
R. v. Biniaris, 2000 SCC 15; R. v. Villaroman, 2016 SCC 33
A verdict is reasonable if a properly instructed jury acting judicially could have rendered it; appellate review is deferential and may re‑examine circumstantial evidence
- 04
R. v. Kienapple, [1975] 1 S.C.R. 729
Where two offences arise from the same act and the greater offence contains all elements of the lesser, the lesser may be stayed under Kienapple
06
Ratio, limits and disposition
Ratio decidendi
The charge and subsequent recharges adequately distinguished knowledge of the object's character from knowledge of its presence so that convictions on counts 1 and 2 were supportable by a properly instructed jury, but count 3 is duplicative of count 1 and a judicial stay of proceedings is entered under Kienapple.
Obiter and limits
- Jury questions are significant and require correct, comprehensive recharges to resolve confusion
- Defence counsel's acceptance of the recharge is a relevant factor in appellate assessment of charge adequacy
- DNA transfer and contamination possibilities do not necessarily raise a reasonable doubt where the totality of circumstantial evidence supports guilt
Court disposition
Appeal allowed in part: convictions on counts 1 and 2 upheld; judicial stay of proceedings entered on count 3.
- Convictions on counts 1 and 2 affirmed.
- Judicial stay of proceedings entered with respect to count 3.
- Original sentence imposed at trial was six years imprisonment on count 1 and one year concurrent on count 2 (count 3 sentence noted but stayed).
Source and reliance status
British Columbia Court of Appeal · 13 August 2020
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