Cloutier v. The Queen — [1979] 2 SCR 709

Pratte J.

The judgment of Martland and Pigeon JJ. was delivered by

PIGEON J. (dissenting)

PIGEON J. (dissenting)-I have had the advantage of reading the reasons of Pratte J. I am in full

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agreement on the question of the selection of the jury, but I differ on the two points upheld by the Court of Appeal and on which, in my opinion, the latter made no error.

With regard to the air waybill, the trial judge, it seems to me, was wrong in saying:

[TRANSLATION] On the question of the introduction of P-O-1, I have decided in all the circumstances, including the absence of notice, the fact that it is a copy, the fact that it is not quite complete, to SUSTAIN THE OBJECTION.

So far as the absence of notice is concerned, it should be noted that the document was filed at the preliminary inquiry. The accused was therefore perfectly aware of this evidence and, in these circumstances, the absence of notice was merely a procedural irregularity concerning which the trial judge had no good reason not to use the discretion conferred on him by subs. 7 of section 30 of the Canada Evidence Act, from which I find it convenient to quote at once subss. 1, 3, 7 and 1], together with the first three paragraphs of subs. 12:

30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding upon production of the record.

(3) Where it is not possible or reasonably praticable to produce any record described in subsection (1) or (2), a copy of the record accompanied by an affidavit setting out the reasons why it is not possible or reasonably practicable to produce the record and an affidavit of the person who made the copy setting out the source from which the copy was made and attesting to its authenticity, each affidavit having been sworn before a commissioner or other person authorized to take affidavits, is admissible in evidence under this section in the same manner as if it were the original of such record.

(7) Unless the court orders otherwise, no record or affidavit shall be received in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal

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proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by such party.

(11) The provisions of this section shall be deemed to be in addition to and not in derogation of

(a) any other provision of this or any other Act of the Parliament of Canada respecting the admissibility in evidence of any record or the proof of any matter, or

(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

(12) In this section

"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;

"copy", in relation to any record, includes a print, whether enlarged or not, from photographic film of such record, and "photographic film" includes a photographic plate, microphotographic film or photo-static negative;

"record" includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript received in evidence under this section pursuant to subsection (3) or (4).

The important question is as to the legal nature of the document in question. This record is a copy of the air waybill, intended for use as the delivery receipt for the goods, and to remain in the possession of the air carrier taking them to their destination. On its face the document bears the following indications:

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Copies 1, 2 and 3 of this Air Waybill are originals and have the same validity.

COPY 4 (DELIVERY RECEIPT)

On the rear there is the following formula, which is still blank:

Received in good order and condition at__________on__________ .

(SIGNATURE OF CONSIGNEE OR HIS AGENT)

This document was kept by the air carrier in some kind of binder and, for this, two perforations were made in it, it is on account of those perforations that the trial judge said it was not quite complete. This certainly was not a valid reason for refusing to admit the document. The exhibit was not a document in the possession of a party to a civil proceeding and which had been mutilated by that party. It was an exhibit in the possession of a third party which the Crown required to make its case. Mutilated documents are every day received in evidence in criminal proceedings for whatever probative value they may have in the light of the rest of the evidence.

The only question that remains, then, is whether this was really a copy. In my opinion, such was not the case. This is not a dispute between a consignee and a carrier. The Crown is not a person claiming rights under an air waybill; but, in my view, it is only towards such a person that only copies 1, 2 and 3 of the bill are originals. The case at bar is a criminal prosecution for the illegal importation of drugs, and the question is not whether the exhibit is the original of the air waybill, but whether it is, within the meaning of subs. 30(1), "a record made in the usual and ordinary course of business that contains information in respect of [a] matter" (in the French version a "chose") oral evidence of which is admissible.

In order to answer this question reference must be made to the above quoted definitions of "business", "copy" and "record". In my view, it appears

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from these definitions that the document clearly is a record made in the usual course of the air carrier's business, as it is a part of its register of delivery receipts, consisting of the collection of No. 4 copies of waybills bound together. It is undoubtedly the original of this register, not a reproduction thereof which would be a "copy" within the meaning of the definition. In this connection, I should point out that the definition of "record" includes any part thereof.

In my opinion, therefore, the Court of Appeal correctly held that the trial judge had erred in refusing to allow in evidence the delivery receipt being copy No. 4 of the air waybill. It is true that there is no signature on this delivery receipt, but in criminal proceedings such a defect cannot operate as a bar to the admission of such evidence: justice cannot be permitted to be frustrated by the devices of smugglers.

On the other point I wish to deal with, Mayrand J.A. stated the reasons for the decision of the Court of Appeal in the following terms:

[TRANSLATION] In my opinion the introduction of a pot containing a green substance found at respondent's home and of the certificate of analysis tending to show that the contents were marijuana should have been authorized, like the introduction of pipes, a scale and literature on marijuana. The certificate of analysis and the various aforementioned items found at respondent's home constituted evidence capable of establishing the accused's guilty intent and casting doubt on the argument that he was the innocent victim of an importation arranged by other persons.

In Levac v. The Queen (C.A.M. 10-000030-73, a judgment dated June 2, 1975), appellant relied as a ground of appeal on the fact that the trial judge had authorized the introduction in evidence of a scale, a pipe and other items found at the home of the appellant charged with importing the narcotic. This Court dismissed the appeal. Owen J.A., whose opinion was concurred in by his brother judges, said:

"In order to prove the offence charged, the Crown had to establish in addition to the importation of the cylinders containing marihuana a guilty knowledge on the part of Levac. A party having no knowledge of narcotics or of the drug scene might innocently accept $450 from a virtual stranger in order to clear through customs a shipment from Jamaica of two metal cylinders purportedly coming into this country for the

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purpose of being repaired. A person possessing a balance that had been used for weighing marihuana, a small quantity of marihuana, and a pipe that had been used to smoke "resine de cannabis" and who in explaining his possession admitted being a user of marihuana would not be as likely to do so innocently.I agree with the presiding judge that in this particular case the exhibits and the evidence showing that Levac used marihuana was relevant to an essential element in the charge against Levac namely the guilty knowledge in connection with actual importation of the cylinders containing marihuana."

In Baker v. The King^[33], a unanimous decision delivered by Duff J., the statement made by Lord Sumner on the admissibility of evidence in Thompson^[34] was adopted. The rule was there stated as follows in the last quoted sentence (at p. 102):

There must be something to connect the circumstance tendered in evidence, not only with the accused, but with his participation in the crime.

I think it is appropriate to cite some cases in which this rule appears to have been applied in the same way as the Court of Appeal of Quebec did in the case at bar.

In R. v. Gaich^[35], the accused was appealing a conviction for fraudulently endorsing and cashing a cheque. The 7th and 8th grounds of appeal read as follows:

7. The learned Trial Judge erred in admitting evidence that I was, at the time of my arrest, in possession of a number of cheque forms of certain banks other than the Royal Bank at Burlington, and drawing therefrom inference of guilt."

8. The learned Trial Judge erred in admitting evidence that I was, at the time of my arrest, in possession of a list of banks in the City of Hamilton, and drawing therefrom inference of guilt."

Mackay J. stated the unanimous opinion, rejecting those grounds, in the following terms:

... With respect to grounds 7 and 8, the admissibility of evidence depends upon its character and not upon its weight: McLaren v. Canadian Central Railway (1884),

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C.R. [14] A.C. 259, 21 C.L.J. 114 at 117 (sub nom. Canadian Central Railway Co. v. McLaren) (P.C.). If the particular piece of evidence is reasonably relevant and not obnoxious to any exclusionary rule, it is admissible although its weight may not be very great: Rogers

v. London and Canadian Loan and Agency Company,

Limited (1908), 18 O.L.R. 8.

An evidentiary fact is admissible if the conclusion contended for is one which is fairly and reasonably probable. It need not be the only conclusion possible: see Wigmore on Evidence, 3rd ed. 1940, sec. 38 (vol. 1, p. 428).

Viscount Reading C.J. said in Rex v. Thompson, [1917] 2 K.B. 630 at 632: "The general rule is that the evidence tendered must be relevant to the charge for which the accused is being tried. If the evidence merely proves, or tends to prove, that the accused is of such evil character or disposition that he is likely to have committed the offence charged against him, it is irrelevant and is inadmissible. If it tends to prove that the accused committed the crime charged against him, it is relevant and admissible, notwithstanding that incidentally it may also prove, or tend to prove, that the accused is a person of criminal or immoral character or disposition." He referred to Regina v. Ollis, [1900] 2 Q.B. 758 at 781‑782; Makin v. Attorney-General for New South Wales, [1894] A.C. 57, and Rex v. Ball and Ball, [1911] A.C. 47.

It is, of course, clear that evidence would not necessarily be admissible of everything found in the possession of an accused. In the words of Viscount Reading in Rex v. Thompson, supra at p. 634: "For instance, if a burglarious implement was found upon him, it could not be given in evidence against him upon a charge of committing acts of gross indecency; it would have no relevance to the issue, and would merely tend to show that he was a person of bad character. But upon a trial for burglary the finding of a burglarious implement upon him would clearly be evidence against him ..."

The Court is of opinion that the array of blank cheques and a sheet of paper on which was written a list of banks, although perhaps of little evidentiary value, are admissible as being relevant to the issue. Under the circumstances the Court cannot see that it was irrelevant to the issue that several of such documents necessary and essential to such an illegal enterprise were found on the person and property of the appellant.

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In R. v. Hannam^[36], the principal question before the Court of Appeal of Nova Scotia was stated as follows (at p. 343):

... Evidence was admitted of a paper found in a wallet in the possession of Michaud, the other accused. This paper contained a list of business establishments in the Halifax-Dartmouth metropolitan area including the Shearwater Post Office, MacCulloch's (Halifax) Limited, Canadian Legion Scotia Branch, Cunard Street, Halifax, a line being drawn through each of these names.

Evidence was also tendered that premises where these three organizations conducted their affairs had been victims of breaks-Shearwater Post Office on March 16, 1963, MacCulloch's (Halifax) Limited on March 14, 1963, and the Canadian Legion on March 16, 1963.

The question is whether this list, although admissible against Michaud, is admissible against the appellant Hannam.

He contends that its admission resulted in very pre-judicial material reaching the jury to his detriment.

Having thus formulated the question, cited various cases and summarized part of the evidence, Coffin J.A. gave the unanimous opinion in these words:

This mass of material is evidence that both Hannam and Michaud were in the vicinity of this Works Department Building in a comparative brief compass of time in the early morning in question and that they were there because they were engaged in some common enterprise. Thus there is evidence of a design which makes the list in question relevant, and admissible.

In R. v. Sims^[37], Lord Goddard C.J.A., said inter alia (at pp. 537 and 538):

... Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more. There are many cases where evidence of specific acts or circumstances connecting the accused with specific features of the crime has been held admissible, even though it also tends to show him to be of bad disposition. The most familiar example is when there is an issue whether the act of the accused was designed or accidental or done with guilty knowledge, in which case evidence is admissible of a series of similar acts by the accused on other occasions,

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because a series of acts with the self-same characteristics is unlikely to be produced by accident or inadvertence: see Makin v. Attorney-General South Wales, [1894] A.C. 57, 65. ... A similar distinction exists in respect of articles found in possession of the accused. If they have no connexion with the crime except to show that the accused has a bad disposition, the evidence is not admissible; but if there are any circumstances in the crime tending to show a specific connexion between it and the articles, the evidence is admissible; see per Lord Sumner in Thompson v. Rex, [1918] A.C. 234. Thus, in the case of burglary, evidence is admissible that house-breaking implements such as might have been used in the crime were found in the possession of the accused. In the case of abortion, evidence is admissible that the apparatus of an abortionist such as might have been used in the crime was found in the possession of the accused. The admissibility does not, however, depend on the circumstance that the articles might have been used in the crime. If there is any other specific feature connecting the articles with the crime, it will suffice.

In George Albert Gillingham^[38], the Court of Criminal Appeal affirmed the following decision of the trial judge admitting some obscene post-cards as evidence on a charge of gross indecency (at pp. 143 and 144):

"Evidence of their possession is not admissible, in my opinion, merely to indicate the fact that [the appellant] had a dirty mind; but if I can properly come to the conclusion that they are the sort of things which might well be used by a person who is guilty of such an offence as this, as an adjunct, some assistance in the commission of that offence, then I think that, under the doctrine laid down by Darling, J., in the case of Twiss (13 Cr. App. R. 17; [1918] 2 K.B. 853), they would be admissible here. In my view, those are things which a man who was guilty of an offence like this might well have about him, and might well use as an adjunct to assist him in the commission of this crime. How? By using them to inflame the passions of the person with whom he intended or designed to commit this crime, or to rouse his own passions for such a purpose."

To justify the introduction of the material in question here Crown counsel said at trial:

[TRANSLATION] What I want to prove, your Lordship, is the presence in the accused's home of substances, of articles, of notes, which imply two things: (1) means rea;

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(2) the accused's interest in importing, the interest he may have.

In my opinion, the two reasons cited were valid.

It is clear that, in cases of this kind, the guilty intent ordinarily cannot be established by direct evidence, and it is therefore necessary to admit in evidence every bit of circumstantial evidence. In the case at bar, I find a clear connection between the fact that the accused was a user of a prohibited narcotic and the presence of a quantity of that narcotic concealed in a piece of furniture that was imported from a country in which this narcotic is produced. As can be seen from the various cases cited, it is not necessary for the admission of circumstantial evidence that the connection between the guilty intent and the evidence in question be conclusive. Provided there is some connection, such evidence must be admitted for what it is worth. Moreover, as this Court has recently held in R. v. Cooper^[39], it is not necessary that circumstantial evidence of guilty intent be such as to exclude any other rational hypothesis.

With regard to the second reason put forward by Crown counsel, what he called the "interest" which the accused had in the importation, this was clearly what is usually called his motive, as distinguished from intent. If the accused really was a marijuana user, his motive in importing it was obvious: to satisfy his desire. In my opinion this second reason is conclusive of the admissibility in evidence of anything tending to show that the accused did use marijuana. In Smith & Hogan's Criminal Law (4th ed.) I read at p. 64:

As evidence, motive is always relevant. This means simply that, if the prosecution can prove that D had a motive for committing the crime, they may do so since the existence of a motive makes it more likely that D in fact did commit it. Men do not usually act without a motive.

I will refrain from reviewing the case law in support of this statement because it appears to

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stand unchallenged. In my view, even if this were the only reason for admitting the evidence in question, it would suffice to justify the decision of the Court of Appeal on the point.

For these reasons, I would dismiss the appeal.

BEETZ J. (dissenting)

BEETZ J. (dissenting)-I concur in the reasons of Pratte J., except as to the admissibility of evidence of the air waybill: on this point, I share the view of Pigeon J.

Although the Court of Appeal does not say so in its judgment, I must assume that it considered whether the verdict would necessarily have been the same in the event that the trial judge had committed no error (Vézeau v. The Queen^[40]) and that the Court implicitly concluded that it would not. However, not counting the irregularities in the selection of the jury, the Court of Appeal attributed two errors to the trial judge, whereas I am of the opinion that he only made one: he refused to admit in evidence the air waybill tending to establish that the twenty pounds of cannabis were imported into Canada. The record contains other evidence of such importation, in addition to the air waybill. In order to decide whether the setting aside of the acquittal should be upheld, therefore, the weight of this other evidence should be assessed. In such circumstances, I would return the case to the Court of Appeal for it to decide whether there should be a new trial because the verdict would not necessarily have been the same in the event that the trial judge had admitted the air waybill in evidence.

Appeal allowed, MARTLAND, PIGEON and BEETZ JJ. dissenting.

Solicitor for the appellant: Roch Fournier, Sherbrooke, Quebec.

Solicitor for the respondent: Réjean Paul, Montreal.

^[2] (1922), 16 Cr. App. R. 184.

^[3] (1931), 53 Que. K.B. 16.

^[4] [1932] S.C.R. 612.

^[5] ##[1973] C.A. 579.

^[6] [1898] A.C. 735.

^[7] (1890), 18 S.C.R. 407.

^[8] (1972), 22 C.R.N.S. 153.

^[9] [1973] C.A. 579.

^[10] (1919), 31 C.C.C. 188.