R. v. Gunn et al., [1974] SCR 273

Supreme Court of Canada

R. v. Gunn et al., [1974] S.C.R. 273

Date: 1972-06-19

Conrad William Gunn and Edward Ponak Appellants;

and

Her Majesty the Queen Respondent.

1972: May 31, June 1; 1972: June 19.

Present: Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Admissibility—Conspiracy—Acts and declarations of one conspirator acquitted—Criminal code, ss. 592 (1)(b)(iii), 619.

The appellants, G and P, together with Z and M, were tried on a charge that they, with W.S. and M.S. and persons unknown, conspired to commit the indictable offence of trafficking in a narcotic. The jury convicted M and acquitted Z, but were unable to agree as to a verdict respecting the two appelants. The indictment was amended so as to charge only the two appellants of conspiring together, and with Z, M, W.S. and M.S. and persons unknown, to commit the said indictable offence. Prior to the trial, M.S., who had been a witness for the Crown, had died. By leave of the trial judge, pursuant to s. 619 of the Criminal Code, the evidence of M.S., given at the earlier trial, was read as evidence in the proceedings. A portion of that evidence related to acts and declarations of Z in the absence of the appellants. The convictions of the appellants having been affirmed by the Court of Appeal, the appellants obtained leave to appeal to this Court.

Held: The appeal should be dismissed.

The evidence as to Z’s acts was properly admissible. It is not necessary to express an opinion on the admissibility of the evidence as to Z’s declarations, in the absence of the appellants, because, even if that evidence was inadmissible, it was unimportant and s. 592(1) (b)(iii) could properly be applied.

APPEAL from a judgment of the Court of Appeal for British Columbia[1] affirming the convictions of the appellants. Appeal dismissed.

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H. Walsh, Q.C., and Jack McGivern, for the appellants.

S.M. Toy, Q.C., for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal from the judgment of the Court of Appeal for British Columbia which dismissed the appellants’ appeal from conviction for conspiracy to commit the indictable offence of trafficking in a narcotic.

In January, 1970, the appellants, together with Ido Zamai and John McKeoff, were tried before a judge and jury on the charge that they, with William T. Smith, Murray Theodore Spreckley and persons unknown, conspired to commit the indictable offence of trafficking in a narcotic. The jury was unable to agree, and a new trial on the same indictment was held in May, 1970. At this trial, the jury convicted McKeoff and acquitted Zamai, but were unable to agree as to a verdict respecting the two appellants.

On September 8, 1970, the indictment was amended so as to charge only the two appellants of conspiring together, and with Zamai, McKeoff, Smith and Spreckley and persons unknown, to commit the said indictable offence. They were tried before a judge and jury and convicted.

Prior to this third trial, Spreckley, who had been a witness for the Crown, had died. At this trial, by leave of the trial judge, pursuant to s. 619 (now s. 643) of the Criminal Code, the evidence of Spreckley, given at the earlier trial, was read as evidence in the proceedings.

On appeal to the Court of Appeal, Bull J.A. and Taggart J.A. applied the provisions of s. 592 (1) (b) (iii) (now s. 613(1) (b) (iii)) of the Code and dismissed the appeals. Tysoe J.A., dissenting, would not have applied this provision.

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Leave to appeal to this Court was granted on three questions of law:

1. Did the Court of Appeal for British Columbia err in failing to allow the appeal of the appellants and quash the verdict when the charge on which the appellants were found guilty was one in which Ido Zamai was a named co-conspirator?

2. Was the learned trial judge wrong in law in permitting the evidence of Murray Theodore Spreckley given at a previous trial to be read as part of the Crown’s case under the provisions of s. 619 of the Criminal Code?

3. Was the learned trial judge wrong in law in having failed to exclude from the evidence of Murray Theodore Spreckley, given at a previous trial and read in at the trial of the appellants under s. 619 of the Criminal Code, those portions of the evidence in which Murray Theodore Spreckley testified to the acts and declarations of Ido Zamai in the absence of the appellants?

After the submissions of counsel for the appellants had been made to this Court in respect of these three questions, counsel for the respondent was advised that he need only submit argument in respect of Question 3.

With respect to the matter raised in this question, Bull J.A. had this to say:

As to Zamai, I have no difficulty in concluding that the not inconsiderable evidence of his associations with each of the appellants and with Smith and Spreckley and the evidence of the latter as to the purchases of narcotics from him was admissible and properly admitted notwithstanding that, because of his earlier acquittal, the appellants could not properly be found to have committed the crime of conspiracy with him. That evidence was relevant and material to the Crown’s case unfolded to the jury with respect to conduct and actions of the other persons alleged to be parties to or participants in the charged conspiracy. It was evidence that could have been admitted even if Zamai had not been tried for the conspiracy or included in the charge as a named co-conspirator. It was evidence which was relevant and admissible as key links in the chain in the carrying out of the purposes and common design of the alleged conspiracy, quite aside from the question of whether or not

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Zamai was a member of, or co-conspirator in, that conspiracy.

However, in my view the situation is different with respect to a certain conversation entered into evidence which might have been prejudicial and which would have been admissible only on the basis of Zamai being a co-conspirator with the appellants. See Paradis v. The King [1934] S.C.R. 165; Koufis v. The King [1941] S.C.R. 481. The evidence arose out of the deceased Spreckley’s testimony (read into evidence by the Crown) in which a discussion between him and Zamai was related. After recounting certain transactions and dealings with Zamai, Spreckley testified:

“Well, on second plant that I got from Zamai he told me next to get in touch with Dave Ponak, gave me a phone number that, and so then…”

The reference was of course to the appellant Ponak, and in my view that portion of the evidence should not have been admitted. In fairness, I must say that Crown counsel offered to edit Spreckley’s testimony being read into evidence by deleting that answer, but the offer was not accepted by defence counsel. The evidence raised no prejudice to the appellant Gunn, but obviously, on the surface, was prejudicial to the appellant Ponak. However, the evidence of what occurred later demonstrates that the error was of small moment. Spreckley went on to say that he did in fact later communicate with Ponak by telephone, made arrangements for a rendez-vous and purchased from him, directly, on two occasions in the next two or three weeks a total of 800 capsules of heroin for $4,800.00 cash. In view of this direct and admissible evidence of dealings with Ponak, the fact that Zamai told him to go to that appellant becomes almost immaterial and certainly of little consequence. I do not overlook that there were other incidents of conversations related between Zamai and Smith and between Zamai and Spreckley, but, although inadmissible, none of them can be said to have been prejudicial in the slightest degree to either appellant. They all had references to transactions between Zamai and Smith or Spreckley, the evidence of which I have determined was admissible, and had no reference to the appellants.

In my respectful opinion, the evidence improperly admitted into evidence was of insufficient importance to affect the verdict, and I consider that its omission

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could not have affected the jury’s verdict in any way. I would certainly apply to the error of law in question the provisions of Code section 592(l)(b)(iii), about which I will deal further later in this judgment.

We are all of the opinion that evidence as to Zamai’s acts was properly admissible. If there was any error at all, it could only be in respect of the admission of evidence as to Zamai’s declarations, in the absence of the appellants. It is not necessary to express and we do not express any opinion on this point, because, even if that evidence was inadmissible, we agree with the view expressed by Bull J.A. as to its unimportance, and we agree that s. 592(1)(b)(iii) could properly be applied.

Accordingly, we are of the opinion that this appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant Gunn: McGivern & McGivern, Vancouver.

Solicitor for the appellant Ponak: G.W. Ponak, Vancouver.

Solicitors for the respondent: Boyd, King & Toy, Vancouver.