R. v. Sutton, [2000] 2 S.C.R. 595
Kingsley Michael Sutton Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Sutton
Neutral citation: 2000 SCC 50.
File No.: 27666.
2000: October 6;
2000: November 9.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for new brunswick
Criminal law – Charge to jury -- Misdirections --
Court of Appeal setting aside accused’s acquittal and ordering new trial --
Crown and defence agreeing that trial judge made errors in his formulation of
test for determining admissibility of co-conspirator hearsay evidence --
Whether Crown established that verdict would not necessarily have been the same
had errors not occurred.
The accused was acquitted of narcotics offences. On
appeal, the Crown alleged errors in the trial judge’s direction to the jury
concerning the admissibility of co-conspirator hearsay evidence. The Court of
Appeal allowed the Crown’s appeal, set aside the acquittal and ordered a new
trial.
Held: The appeal
should be dismissed.
The parties agreed that
two clear misdirections occurred in the trial judge’s formulation of the test
for determining the admissibility of co-conspirator hearsay evidence. Either
of the trial judge’s errors could have led to the accused’s acquittal. The
Crown has established with reasonable certainty that, had the jury been
properly charged, the verdict would not necessarily have been the same.
Accordingly, the Court of Appeal’s order for a new trial should be confirmed.
Cases Cited
Referred to: Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Carter,
[1982] 1 S.C.R. 938; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v.
Bevan, [1993] 2 S.C.R. 599.
APPEAL from a judgment of the New Brunswick Court of
Appeal (1999), 140 C.C.C. (3d) 336, 222 N.B.R. (2d) 78, [1999] N.B.J. No. 540
(QL), allowing the Crown’s appeal from the accused’s acquittal on charges of
trafficking in cocaine and possession of the proceeds of crime, and ordering a
new trial. Appeal dismissed.
Margaret Gallagher, for
the appellant.
S. David Frankel, Q.C.,
and James C. Martin, for the respondent.
The judgment of the Court was delivered by
1
The Chief Justice – This
is an appeal as of right. The appellant was charged with trafficking in
cocaine and possession of proceeds of trafficking. The Crown alleged that the
appellant sold a prohibited drug to its undercover agent, Gulliver, through an intermediary, Merrick. The Crown’s case
consisted of Gulliver’s testimony, tapes of conversations between Gulliver and
Merrick, police surveillance of events and the bag of cocaine allegedly
purchased by Gulliver. At the end of the trial, the jury acquitted the
appellant. The Crown appealed, alleging errors in the trial judge’s direction
to the jury. The Court of Appeal of New Brunswick, Rice J.A. dissenting,
allowed the Crown’s appeal, set aside the acquittal and ordered a new trial:
(1999), 222 N.B.R. (2d) 78. The appellant Sutton appeals that decision to this
Court.
2
The parties agree that acquittals are not lightly overturned. The test
as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the
Crown to satisfy the court that the verdict would not necessarily have been the
same had the errors not occurred. In R. v. Morin, [1988] 2
S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the
Crown must satisfy the court with a reasonable degree of certainty” (p. 374).
3
The parties also agree that the trial judge
made errors in his direction to the
jury. More specifically, they agree that two
clear misdirections occurred in his formulation of the test set out in R. v.
Carter, [1982] 1 S.C.R. 938, for
determining the admissibility of co-conspirator hearsay evidence, a test not
challenged on this appeal. (The parties did not present argument on and
the Court did not consider whether the Carter test may be affected by R.
v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40 (released on September 29,
2000).)
4
First, the parties agree that in articulating
the initial stage of the Carter
test, the trial judge wrongly directed the jury that they were restricted to
“Gulliver’s evidence alone” in determining whether they were satisfied, beyond
a reasonable doubt, that there was a conspiracy or common design to traffic
cocaine. This eliminated from the jury’s consideration evidence that both
parties agree was admissible on the point: the
testimony of police officers detailing their surveillance and the bag of
cocaine.
5
Second, the parties agree that the trial judge directed the jury to
apply the wrong standard of proof at the second stage of the Carter
test. This stage involves a determination of whether, on the balance of
probabilities, the appellant was a member of the common
design. The trial judge clearly erred by informing the jury they had to be satisfied of the appellant’s
membership beyond a reasonable doubt, failing which they were required to acquit him.
6
In addition to these admitted errors, the Crown alleges that the trial
judge erred in his caution to the jury
respecting the credibility of the undercover agent Gulliver as an unsavoury witness (the Vetrovec
warning). The appellant disagrees on
this point.
7
Leaving aside the disputed Vetrovec caution, which this Court
recently reviewed in R. v. Bevan, [1993] 2 S.C.R. 599, the critical
issue upon which the court below divided and the main ground upon which Rice
J.A. based his dissent, was whether the admitted errors in charging the jury on the Carter test meet
the threshold for vacating an acquittal as set out in Vézeau, supra.
Has the Crown established with reasonable certainty that the jury, had it been
charged correctly, would not necessarily have reached the same verdict? We are
satisfied that the answer to this question must be yes.
8
It is not disputed that had the jury been properly directed, they could
have found, upon a consideration of all the
relevant evidence and applying the proper standards of proof, that the Carter test
was satisfied. In that case, the hearsay statements at issue, including the
taped conversations implicating the appellant, would have been admissible
against him, as properly falling within the co-conspirator exception to the
hearsay rule. The errors in the trial judge’s charge may have unjustly frustrated such a
conclusion. At the first stage of the test, the jury was effectively
precluded from considering evidence that both parties agree was admissible in
determining whether they were satisfied a conspiracy existed. At the second
stage, the misdirection as to the appropriate standard of proof created the
potential for the jury to reject the admissibility of the offered evidence on
the grounds they were not satisfied of the appellant’s involvement in the
common design to traffic cocaine beyond a reasonable doubt, even though they
may have been satisfied of his involvement on the correct standard of
probability. Either of these errors could have led to the appellant’s
acquittal. Therefore, to use the language of Vézeau, supra, we
can say with reasonable certainty that, had the jury been properly charged, the
verdict would not necessarily have been the same.
9
We would therefore dismiss the appeal and confirm the order for a
new trial.
Appeal dismissed.
Solicitor for the appellant: Margaret
Gallagher, Saint John.
Solicitor for the respondent: The
Attorney General of Canada, Vancouver.