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

SUPREME COURT OF CANADA

Cloutier v. The Queen, [1979] 2 S.C.R. 709

Date: 1979-06-28

Raymond Cloutier Appellant;

and

Her Majesty The Queen Respondent.

1978: December 13; 1979: June 28.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC

Criminal law — Jury trial — Challenges for cause — Peremptory challenges — Irregularities — Relative nullity — Judge's charge to jury — Criminal Code, R.S.C. 1970, c. C-34, ss. 21, 562, 563, 568, 569.

Criminal law — Evidence — Importing a narcotic — Air waybill — Original or copy — Copy without affidavit — Items tending to establish that accused was a user of marijuana — Relevance of evidence — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30 — Carriage by Air Act, c. C-14, Schedule 1, arts. 6, 8, 11.

Appellant was charged with importing a narcotic into Canada, namely 20 pounds of cannabis (marijuana). The evidence was that the merchandise was concealed in the false bottom of a dresser arriving from South Ameri­ca, which appellant asked his mother to store in her home, and it was there that the police made the seizure. The accused was acquitted by a jury, but the prosecu­tion appealed from the verdict, alleging that:

(1) the selection of the jury was tainted by irregulari­ties capable of vitiating the trial and leading to the nullity of the verdict: first, the judge denied the accused the right to peremptorily challenge a juror whom the triers had found to be impartial, after previously allowing this right with respect to another juror in the same situation; the judge also allowed counsel for the accused to ask a juror questions after the latter had been sworn;

(2) the trial judge refused to admit in evidence an "air waybill" relating to the dresser which con­tained the marijuana and certificates of analysis to establish that the items seized at the accused's home, a cigarette butt, a pipe and a green substance, indicated that the accused was a user of marijuana;

(3) the judge's charge to the jury was insufficient, because he failed to explain to the jury the

[Page 710]

provisions of the Criminal Code regarding "the parties" to an offence.

The Court of Appeal did not rule on the consequences of the first contention, but admitted the merits of the other two, quashed the verdict of acquittal and ordered a new trial. Hence the appeal to this Court.

Held (Martland, Pigeon and Beetz JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Ritchie, Spence, Dickson, Estey and Pratte JJ.: The three questions raised must be considered separately:

(1) An examination of the case law and legislation indicates that the rule and practice which existed in England and in Canada at the time of the first codifica­tion of the criminal law have not been altered, and that in the case at bar the trial judge erred when he denied the accused the right to challenge peremptorily a juror whom the triers had found to be impartial. While the accused is entitled to ask for the trial and the verdict to be annulled for such an illegality, the nullity is relative and the prosecution may not complain about the fact that the accused exercised, or failed to exercise, one of his rights of challenge, as this right is purely personal to the accused. The judge undoubtedly erred in putting further questions to a juror after the latter had been sworn, but there is no indication that this error had any effect on the verdict of acquittal. The irregularities which occurred in empanelling the jury are therefore not a basis for setting aside the verdict of acquittal.

(2) The Court of Appeal held that the trial judge erred in refusing to admit an "air waybill". This docu­ment is governed by the Carriage by Air Act, which states that it consists of three original copies. The copy sought to be introduced in the case at bar was not one of these three originals, but a copy which could not be admitted unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act. The admissibili­ty of the items tending to establish that the accused was a user of marijuana is determined by the relevance of the evidence or the existence of a connection between the two facts which makes it possible to infer the existence of one from the existence of the other.

In the case at bar there is no connection between the fact that the accused is a user of marijuana and the fact that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. Mens rea is an essential aspect of the crime attributed to the accused, and it must be established beyond all reasonable

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doubt. The type of evidence which merely raises suspicions against the accused is precisely the type of evidence which cannot be admitted; nor should this evidence be admitted because it may disclose the interest of the accused in the importation. Proof of the motive for a crime is generally admitted as circumstantial evidence, but only if it is relevant. In the case at bar, it cannot be said that the use of marijuana by appellant is in itself a fact seriously tending to establish motive for the crime of importation with which he is charged.

(3) Finally, contrary to the opinion of the Court of Appeal, the judge did not have to explain to the jury the scope of the provisions of the Criminal Code regarding the parties to an offence. All the evidence of the pros­ecution was designed to show that it was appellant who committed the offence, and the judge had to instruct the jury on the rules of law raised by the trial as it unfolded.

Per Martland and Pigeon JJ., dissenting: The absence of notice relied on by the trial judge in refusing to admit the air waybill was a mere procedural irregularity, since the document was filed at the preliminary inquiry. So far as the argument that the letter was only a copy is concerned, the case at bar is a criminal prosecution and the waybill in question is "a record made in the usual and ordinary course of business" of the air carrier, within the meaning of subs. (1) of s. 30 of the Canada Evidence Act. The fact that there was no signature on the document could not in criminal proceedings operate as a bar to the admission of such evidence. The Court of Appeal also correctly found to be admissible certificates of analysis and other items which the prosecution sought to introduce to prove (1) mens rea (2) the accused's interest in the importation. The two reasons cited are valid. 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, even if the connection between it and the guilty intent is not conclusive. Provided that there is some connection, such evidence must be admitted for what it is worth. The second reason, namely the accused's interest or motive as opposed to his intent, seems to be conclusive of the admissibility in evidence of anything tending to show that the accused did use marijuana.

Per Beetz J., dissenting: Of the two errors attributed to the trial judge by the Court of Appeal, the only one which he made was in refusing to admit in evidence the air waybill tending to establish importation. However, as the record contains other evidence of such importation it should be returned to the Court of Appeal for the weight of this other evidence to be assessed.

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[Rose v. The Queen, [1973] C.A. 579 applied; Re Martin and The Queen (1973), 11 C.C.C. (2d) 224; Levac v. The Queen (1975), 32 C.C.C. (2d) 357 distin­guished; R. v. Battista (1912), 21 C.C.C. 1; Horatio Bottomley (1922), 16 Cr. App. R. 184; Bussières v. Regem (1931), 53 Que. K.B. 16; R. v. Stewart, [1932] S.C.R. 612; Canada Sugar Refining Co. v. Reg., [1898] A.C. 735; Morin v. The Queen (1890), 18 S.C.R. 407; R. v. Ward (1972), 22 C.R.N.S. 153; R. v. Churton (1919), 31 C.C.C. 188; Henry Williams (1925), 19 Cr. App. R. 67; R. v. Page, [1965] Crim. L.R. 444; R. v. Edmonds (1821), 4 B. & Ald. 471; R. v. Lalonde (1898), 7 Que. Q.B. 201; R. v. Elliott (1973), 22 C.R.N.S. 142; Whelan v. The Queen (1868), 28 U.C.Q.B. 108; McLean v. The King, [1933] S.C.R. 688; R. v. Mah Hung (1912), 17 B.C.R. 56; Boyle and Merchant (1914), 10 Cr. App. R. 180; Noor Mohamed v. The King, [1949] A.C. 182; R. v. Barbour, [1938] S.C.R. 465; R. v. Bond, [1906] 2 K.B. 389; Boardman v. D.P.P., [1974] 3 All E.R. 887; Thompson v. The King, [1918] A.C. 221; Beaver v. The Queen, [1957] S.C.R. 531; R. v. Boyer (1968), 4 C.R.N.S. 127; R. v. Blondin (1970), 2 C.C.C. (2d) 118; Rance and Herron (1975), 62 Cr. App. R. 118; Scarrott (1977), 65 Cr. App. R. 125 referred to.]

APPEAL from a decision of the Court of Appeal of Quebec, quashing a verdict of acquittal. Appeal allowed, Martland, Pigeon and Beetz JJ. dissenting.

The judgment of Laskin C.J. and Ritchie, Spence, Dickson, Estey and Pratte JJ. was deliv­ered by

PRATTE J.—Appellant is appealing from a unanimous decision of the Court of Appeal of the Province of Quebec (Montgomery, Turgeon and Mayrand JJ.A.), which quashed the verdict of acquittal returned in his favour and ordered a new trial on the charge of unlawfully importing a narcotic into Canada.

The facts are well summarized by Mayrand J.A. in his reasons (there were two errors of dates which I have corrected):

[TRANSLATION] ... In November 1972, Mrs. Claire Cloutier met her son, the respondent, who asked her if she could store certain furniture at her home for his friends, who were then travelling in South America. She agreed, provided that the furniture was not too large and was not to be stored for too long. At this time, Mrs. Cloutier was living in quite a large house at 2495 Galt

[Page 713]

Street West, in Sherbrooke, while her son was living in a rather cramped apartment on MacManamy Street, also in Sherbrooke.

On January 10, 1973, Mrs. Cloutier received a tele­phone call from Air Canada, announcing the arrival of a package and asking how she would like it delivered. She asked Air Canada to contact Maislin Transport Ltd., whom she instructed to deliver this package to her, and she told her son, the respondent, about it. In the meantime, the RCMP had examined the suspect package at Dorval airport and found a bag of marijuana, concealed in a cupboard with a false bottom. The following day Maislin Transport, which had possession of the package, told Mrs. Cloutier she had to clear it through customs; she told her son of this, and he asked her to look after it herself, and advanced her $50 to cover expenses. The package was then delivered to Mrs. Cloutier's home, and the police placed the house under constant surveillance. On the day in question, January 12, 1973, the accused went to his mother's home and broke open the crate in which the furniture was packed. The next day, which was a Saturday, he called Bérubé, a student who rented a room in Mrs. Cloutier's house, by telephone and asked him to leave the basement door unlocked overnight and mention it to no one; the day after, a Sunday, he again asked him to leave the door unlocked and to close all the adjacent doors, draw the curtains and say nothing to anyone. Once again, however, no one came to collect the furniture. Finally giving up, the police entered Mrs. Cloutier's house and seized the furniture containing the marijuana; they also conducted a search in the accused's lodging and seized a metric scale, a cigarette butt, pipes, literature on marijuana and a pot containing a green substance.

Appellant was subsequently charged with having:

[TRANSLATION] . .. in Montreal, district of Montreal, and in Sherbrooke, district of St-François, between December 20, 1972 and January 12, 1973, imported into Canada a narcotic, to wit:

20 lbs. of cannabis (marijuana), the whole contrary to s. 5(1) of the Narcotic Control Act, Revised Sta­tutes of Canada 1970, c. N-1, committing thereby an indictable offence as specified in s. 5(2) of the said Act.

Appellant was tried before a jury, presided over by a judge of the Court of Queen's Bench for the district of St-François. The jury returned a verdict of acquittal. The Court of Appeal quashed this verdict; it held that the judge had erroneously

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denied respondent the right to adduce evidence of certain facts, and that his charge to the jury was incomplete; Mayrand J.A. was further of the view that irregularities had occurred in the selection of the jury, but he made no finding as to the attend­ing consequences.

The questions raised by this appeal concern the correctness of the procedure followed in selecting the jury, the admissibility of certain items of evi­dence and the legality of the charge to the jury.

I

First, consideration must be given to whether the selection of the jury was tainted by irregulari­ties capable of vitiating the trial and leading to the nullity of the verdict. This is what was submitted by respondent; as appellant was acquitted, he makes no complaint in this regard.

The first alleged illegality is in respect to the right of an accused to peremptorily challenge a juror whom the triers have found to be impartial.

In the case at bar, the judge first acknowledged that the accused had such a right:

[TRANSLATION] BY THE COURT

Mr. Fournier, I will allow you to peremptorily challenge this witness. Now, after the question is put to the triers you no longer have a right to do this, it must be done before the question is put to the triers.

Subsequently, the judge adopted the other point of view and denied the accused the right to peremptorily challenge another juror who had been found impartial:

[TRANSLATION] BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED

(Observations of Mr. Fournier after the prospective juror Gilles Jean, No. forty-two (42), was found to be impartial by the triers.)

Your Lordship, before the juror takes the oath .. .

BY THE COURT

The question was put and the jurors have decided it.

BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED

I would have asked nevertheless, I wanted your Lordship to make a decision. I would like him to be peremptorily challenged.

[Page 715]

BY THE COURT

No, it's too late. I had told you .. .

BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED

No, I would like your Lordship to decide it.

Respondent argued that either one or the other of these two decisions of the trial judge was neces­sarily in error, with the result that the jury was improperly impanelled and the verdict should be regarded as null. This submission of respondent is too general. A trial is not necessarily vitiated by any erroneous decision of a judge; the conse­quences that follow from an illegality depend on the nature of the rule that is violated and the importance of the right which such rule is designed to safeguard. Even in the selection of a jury, not all rules have the same weight (R. v. Battista[1]; Horatio Bottomley[2]; Bussières v. Regem[3]; R. v. Stewart[4]); some are purely procedural, others are designed to protect the personal interests of one or other of the parties, and others have an even more fundamental importance in that they seek to ensure the integrity of the sytem [sic] that establishes, as between the parties, a predetermined state of balance.

The first question to be examined therefore is as to which decision of the trial judge was in error; that which allowed, or that which denied, the peremptory challenge? Once the error is identified, its consequences may be determined.

There is no doubt that under English criminal law, which became ours pursuant to the Quebec Act of 1774, the accused could challenge peremp­torily a prospective juror against whom a challenge for cause had been rejected (Chitty on Criminal Law, 1826, vol. 1, at p. 545; Taschereau, The Criminal Law Consolidation and Amendment

Acts of 1869, 32-33 Vict., for the Dominion of Canada, vol. 2, at p. 204).

It is also generally admitted that this was the situation when the first Criminal Code came into effect in 1893 (Taschereau, The Criminal Code,

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ed. 1893, under s. 668, at p. 782; Rose v. The Queen[5], by Rinfret J.A., at p. 592).

The dispute therefore turns essentially on the scope of subss. 8 and 10 of s. 668 of this Code, and the corresponding provisions of the present Code.

Section 668 of the 1892 Code read as follows:

668. Every one indicted for treason or any offence punishable with death is entitled to challenge twenty jurors peremptorily.

2. Every one indicted for any offence other than treason, or an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily.

3. Every one indicted for any other offence is entitled to challenge four jurors peremptorily.

4. Every prosecutor and every accused person is entitled to any number of challenges on any of the follow­ing grounds; that is to say:

(a.) that any juror's name does not appear in the panel: Provided that no misnomer or misdescription shall be a ground of challenge if it appears to the court that the description given in the panel sufficiently desig­nates the persons referred to; or

(b.) that any juror is not indifferent between the Queen and the accused; or

(c.) that any juror has been convicted of any offence for which he was sentenced to death or to any term of imprisonment with hard labour or exceeding twelve months; or

(d.) that any juror is an alien.

5. No other ground of challenge than those above-mentioned shall be allowed.

6. If any such challenge is made the court may in its discretion require the party challenging to put his chal­lenge in writing. The challenge may be in the form LL in schedule one hereto, or to the like effect. The other party may deny that the ground of challenge is true.

7. If the ground of challenge is that the juror's names do not appear in the panel, the issue shall be tried by the court on the voir dire by the inspection of the panel, and such other evidence as the court thinks fit to receive.

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8. If the ground of challenge be other than as last aforesaid the two jurors last sworn, or if no jurors have then been sworn then two persons present whom the court may appoint for that purpose shall be sworn to try whether the juror objected to stands indifferent between the Queen and the accused, or has been convicted, or is an alien, as aforesaid, as the case may be. If the court or the triers find against the challenge the juror shall be sworn. If they find for the challenge he shall not be sworn. If after what the court considers a reasonable time the triers are unable to agree the court may discharge them from giving a verdict, and may direct other persons to be sworn in their place.

9. The Crown shall have power to challenge four jurors peremptorily, and may direct any number of jurors not peremptorily challenged by the accused to stand by until all the jurors have been called who are available for the purpose of trying that indictment.

10. The accused may be called upon to declare whether he challenges any jurors peremptorily or otherwise, before the prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily.

The corresponding provisions of the present

Code are ss. 562, 563, 567, 568 and 569, which read as follows when the trial began on October

30, 1973:

562. (1) An accused who is charged with an offence punishable with death is entitled to challenge twenty jurors peremptorily.

(2) An accused who is charged with an offence other than an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily.

(3) An accused who is charged with an offence that is not referred to in subsection (1) or (2) is entitled to challenge four jurors peremptorily.

563. (1) The prosecutor is entitled to challenge four jurors peremptorily, and may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment.

(2) Notwithstanding subsection (1), the prosecutor may not direct more than forty-eight jurors to stand by unless the presiding judge for special cause to be shown, so orders.

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(3) The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.

567. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,

(b) a juror is not indifferent between the Queen and the accused,

(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,

(d) a juror is an alien, or

(e) a juror is physically unable to perform' properly the duties of a juror.

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

568. (1) Where a challenge is made on a ground mentioned in section 567, the court may, in its discre­tion, require the party that challenges to put the chal­lenge in writing.

(2) A challenge may be in Form 37.

(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.

569. (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence that the judge thinks fit to receive.

(2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true.

(3) Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.

(4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are

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unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true.

The proponents of the theory that the accused may not peremptorily challenge a juror found to be impartial rely, firstly, on the following provision in subs. 8 of s. 668:

If the court or the triers find against the challenge the juror shall be sworn.

Subsection 3 of s. 569 of the present Code is to the same effect:

Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, .. .

In either case, the English text is the same: " .. . the juror shall be sworn". In short, it is argued that the text "le juré sera assermenté", "le juré est assermenté" creates an absolute obligation, and that such obligation to swear the juror denies the right to a peremptory challenge.

I do not find this reasoning to be well grounded; it does not take into account the context of the provision to be interpreted; it disregards the true nature of the right to peremptory challenges; and it leads to the denial of the right to make such challenges in the very circumstances where it is most important that this right be available.

A legislative provision should not be interpreted in isolation; its true meaning cannot be determined without giving consideration to the object of the statute in which it is contained and to the related provisions taken as a whole. Otherwise, there is a danger of arriving at an absurd conclusion.

In Canada Sugar Refining Co. v. Reg.[6], Lord Davey expressed, at p. 741, the fundamental rule that one provision is to be interpreted in conjunc­tion with others: "Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter."

[Page 720]

The phrases "le juré sera assermenté", "le juré est assermenté" therefore do not necessarily have an absolute meaning; in attempting to determine the extent of the obligation which they impose, reference must be had to the nature and purpose of the right which is the subject-matter of legislative regulation.

According to Blackstone (Commentaries on the Laws of England, Lewis ed., vol. 4, No. 353, at p. 1738), there were two reasons which justified the existence of the right to peremptory challenges:

353. Challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. L As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

The very basis of the right to peremptory chal­lenges, therefore, is not objective but purely sub­jective. The existence of the right does not rest on facts that have to be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the juror. The fact that a juror is objectively impartial does not mean that he is believed to be impartial by the accused or the prosecution; Parliament, when allowing each party a number of peremptory challenges, clearly intended that each party have the right to remove from the jury a number of individuals whom he does not

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believe to be impartial, though he could not provide evidence in support of such belief. The very nature of the right to peremptory challenges and the objectives underlying it require that its exercise be entirely discretionary and not subject to any condition. There is no logical connection between the challenge for cause and the peremptory chal­lenge, and I do not see any reason why the unsuc­cessful exercise of the right to challenge for cause would have an effect on the right to a peremptory challenge. Only a clear legislative provision could negate the right to a peremptory challenge in circumstances where, because of its very purpose, such a right should be available.

Section 569 (subs. 8 of s. 668 of the first Criminal Code) is clearly a procedural provision which indicates the manner in which the merits of a challenge for cause are to be determined. The purpose of this section is not to regulate the right to peremptory challenges in itself, but rather to regulate the manner in which a challenge for cause is made: the distinction is not one to be ignored.

Moreover, the effect of an excessively literal interpretation of the phrases "the juror shall be sworn" ("le juré sera assermenté" and "le juré est assermenté") would necessarily be to deny the prosecution any right to challenge or require to stand by a juror who had been unsuccessfully challenged for cause by the accused. If a juror must be sworn because a challenge for cause has been held to be groundless, no other challenge would then be possible, whether by the prosecution or by the accused.

The right of the prosecution to challenge a juror and that of requiring a juror to stand by are independent of the rights conferred on the accused, and I do not see why the prosecution should be deprived of its rights because the accused has unsuccessfully challenged a juror for cause. The rights of challenge enjoyed by the accused are not intended to enable him to select a jury favourable to his case, but rather to reject jurors who, in his view, do not have the qualifications necessary for performing this function. I cannot accept an inter­pretation of the provisions of the Criminal Code quoted above that would disrupt the balance clearly

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established by the legislator between the rights of the accused and those of the prosecution.

In Morin v. The Queen[7], at pp. 424 et seq., Ritchie C.J. stated:

... If the crown can order a juror to stand aside on a second perusal of the panel, why may they not do it a third or a fourth time, in fact indefinitely until a jury was selected to suit the prosecuting officer,

I think, therefore, in this case there was an assump­tion on the part of the officer of an unlimited right of challenging jurors without assigning cause. The object of the law certainly is to secure the prisoners a fair trial. How can this be accomplished if he is deprived of the privilege the law gives him in the selection of the jury by whom he is to be tried?

In the present instance the objection taken is not raised on a mere technicality but is that the jury to whom the prisoner shall be given in charge shall be legally selected, chosen and sworn, and that neither the crown nor the prisoner shall have any advantage or privilege other than those conferred by law; but when privileges are conferred by law they shall be rigidly respected.

And Fournier J. added, at pp. 438 and 439:

[TRANSLATION] ... It would therefore be unfair and unlawful to grant it a privilege such as that of a repeated "stand aside", which would have the effect of extinguishing the prisoner's right of challenge, and in practice leave the Crown the power to form a jury to suit itself or, to use the English expression, to pack the jury.

Our law does not confer on the accused a right to empanel a favourable jury, any more than it does on the prosecution.

I therefore concur in the opinion of Schroeder J.A., in the unanimous decision of the Court of Appeal of Ontario, R. v. Ward[8], at p. 156:

... It is well settled that one section of a statute should be read in the light of other sections thereof relating to the same or to a cognate subject-matter, and applying that principle to the interpretation of s. 569(3), the words "the juror shall be sworn" surely mean no more

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than that the juror shall be sworn provided that in exercising their rights under these other specific provi­sions of the Code, Crown counsel has not directed the juror to stand aside, or has not challenged him peremp­torily, or counsel for the accused has not made a peremptory challenge of the particular juror.

Those who argue that a peremptory challenge may not be allowed when a challenge for cause has been dismissed rely also on subs. 10 of s. 668, which is now subs. 3 of s. 563.

There is no significant difference between these two provisions; subs. 10 reads as follows:

10. The accused may be called upon to declare whether he challenges any jurors peremptorily or otherwise, before the prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily.

Subsection 3 of s. 563 reads as follows:

(3) The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.

It was submitted that, in providing that the accused may be called upon to declare whether he challenges a juror peremptorily or for cause, Par­liament, through the use of this disjunctive adverb, has indicated that with respect to any one juror the accused would be entitled to only one of the two types of challenge, not to both. Such an interpreta­tion totally ignores the purpose of the subject provision. Subsection 3 of s. 563 of the present Code, like subs. 10 of s. 668 before it, is designed only to determine the order in which challenges will be made as between the accused and the prosecution; the provision does not state that the right of the accused is an alternative one; it merely says that the prosecution may only be called upon to make its declaration once the accused has made his own. If the adverb "or" in this provision were really disjunctive, it would follow that the prosecu­tion could be asked to exercise one or other of its rights of challenge or to require a juror to stand aside before the accused has exercised all of them, which would be contrary to the rule of ancient law (Blackstone, Commentaries on the Laws of England,

[Page 724]

4th ed., 1769, vol. 4, at p. 347; Hawkins' Pleas of the Crown, vol, 2, at p. 569, c. 43; Stephen, History of the Criminal Law of England, vol. 1, at p. 303). There is no basis for this interpretation.

I therefore conclude, like Turgeon J.A. in Rose[9], at pp. 615 and 616, that neither the 1892 Code nor the present Code has had the effect of altering [TRANSLATION] "the rule and the practice which existed in England and in Canada at the time of the first codification". It follows from this that the trial judge erred when he denied the accused the right to challenge peremptorily a juror whom the triers had found to be impartial.

The consequences of this illegality must now be considered.

The accused, who is erroneously denied a peremptory challenge, is entitled to ask that the trial and the guilty verdict returned by an irregu­larly empanelled jury be annulled; it is not neces­sary for him to prove a prejudice; there is a "préjudice de droit"; as to this no doubt exists: R. v. Churton[10], Henry Williams[11], R. v. Page[12].

In King v. Edmonds[13], at p. 473, Abbott C.J. said:

It must further be observed, that the disallowing of a challenge is a ground not for a new trial, but for what is strictly and technically a venire de novo. The party complaining thereof applies to the Court, not for the exercise of the sound and legal discretion of the judges, but for the benefit of an imperative rule of law, and the improper granting, or the improper refusing of a chal­lenge, is alike the foundation for a writ of error.

What is the nature of the nullity which may be pleaded by an accused who has been erroneously denied a peremptory challenge? Is it a relative nullity which may only be pleaded by the accused, or an absolute nullity that is not capable of ratifi­cation and may also be relied on by the prosecution?

[Page 725]

The rights of peremptory challenge accorded the accused and the prosecution are personal to each. The rights of the prosecution are independent of those of the accused: the latter's exercise of his rights of peremptory challenge are solely a matter for his discretion, subject to no control by the prosecution and having no effect on the exercise of the latter's rights. The right to challenge is not a right of selection. In Morin, cited above, Tas­chereau J. said, at p. 451:

... The right of challenging is given to reject, not to select, .. .

(See also R. v. Lalonde[14], at p. 203; R. v. Elliott[15], at p. 152.)

The prosecution may not complain about the fact that the accused exercised, or failed to exer­cise, one of his rights of challenge: the interests of the prosecution are not affected in either case. The reason why the accused does not exercise a right of challenge matters little; whether it is the decision of the accused or that of the judge, the situation of the prosecution is in no way altered: it still retains its rights of challenge and standby. If a juror is not acceptable to the prosecution, it should not rely on the accused to challenge him: it must challenge him itself by exercising the rights conferred on it by law.

In the case at bar, the prosecution did not object to either one of the two decisions of the trial judge. When the judge denied the accused the right to peremptorily challenge a juror who had been found impartial, counsel for the prosecution remained silent; the juror was sworn without his asking him to stand by or to challenge him, for cause or peremptorily. In total, sixteen jurors were asked to stand by and none was challenged by the Crown, whether peremptorily or for cause.

By thus abstaining from making this juror stand by, as it was entitled to do, the prosecution in fact accepted him. The rights of the Crown as to the empanelling of the jury were respected in every particular. The prosecution may not complain that appellant's rights were violated for the simple

[Page 726]

reason that the rights were purely personal, and moreover the judge's error with respect to appel­lant was corrected by the verdict of acquittal. If the accused wished to challenge this juror peremp­torily, this was because he doubted the latter's impartiality; the verdict of acquittal proved beyond any doubt that his fears were groundless (see, by analogy, Whelan v. The Queen[16], approved in McLean v. The King[17]).

In my opinion, therefore, the prosecution may not plead the illegality of the decision of the trial judge who denied the accused the right to peremp­torily challenge a juror after the latter had been found impartial by the triers.

The prosecution also submitted that the trial was null and the verdict of acquittal void because the judge allowed counsel for the accused to ask a juror certain questions after the latter had been sworn.

The second prospective juror was challenged for cause by the accused; the triers found him impar­tial; he was sworn. After the swearing, counsel for the accused said the following:

[TRANSLATION] Your Lordship, as I just mentioned in my colleague's presence in your chambers, I omitted to ask Mr. Fortier a question, and if the Court gave me permission and my colleague agreed, I would like to be able to ask Mr. Fortier certain further questions, in the presence of the two (2) triers who were here earlier.

Counsel for the prosecution left the matter entirely up to the judge, who observed as follows:

[TRANSLATION] It is a little unusual, but I do not want to cause anyone prejudice, and I will, if the two (2) triers are here, I will allow it. [To the juror Fortier]: there are a couple of questions which Mr. Fournier wants to ask you, two (2) or three (3) questions. [To the triers]: there are two (2) or three (3) questions which Mr. Fournier wants to ask Mr. Fortier. You recall his answers thus far, and you decided he was impartial. Now, he wants to ask two (2) or three (3) questions.

The record does not indicate what were the questions the prospective juror was asked. It indicates

[Page 727]

only that once the questions were asked, the triers again found this juror to be impartial.

The trial judge undoubtedly erred in allowing these further questions to the juror (R. v. Mah Hung[18]); however, there is no basis for assuming that this error caused the prosecution any preju­dice, or might have had some effect on the verdict of acquittal. This is not a valid ground of complaint.

I therefore conclude that the verdict of acquittal should not be set aside as a consequence of the irregularities which occurred in empanelling the jury.

II

Consideration must now be given to the two reasons relied on by the Court of Appeal to quash the verdict and order a new trial.

The first reason concerns the admissibility of certain exhibits submitted as evidence by the prosecution.

The trial judge first refused to admit a docu­ment called "Air Waybill", relating to the dresser which contained the marijuna [sic] which appellant was charged with importing. Mayrand J.A., speaking for the court, said:

[TRANSLATION] ... The air waybill could have estab­lished the route taken by the incriminating package from Bogota in Colombia to Dorval in Canada; it could also have proven that its weight at the point of shipment corresponded to its weight at the point of arrival at Dorval, so that the entire contents would have had to cross the frontier. This was important evidence since, in his charge to the jury, the judge reminded them that they must ask themselves whether the marijuana was put into the package after it had entered Canada.

The trial judge refused to admit this document (Exhibit P-O-1), observing:

[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

[Page 728]

that it is definitely incomplete, to ALLOW THE OBJECTION.

The Court of Appeal took the view that this decision was in error; Mayrand J.A. said only:

[TRANSLATION] ... In my opinion, the introduction of the air waybill should have been allowed:

Re Martin and The Queen (1973), 11 C.C.C. (2d) 224 (Ont. High Court).

With respect, I should say at once that Martin[19] does not seem to apply to the case at bar; the questions it raised regarding the admissibility of an air waybill were quite different from those raised in this Court and in the Court of Appeal.

Here, there is no dispute that a waybill is "a record made in the usual and ordinary course of business", the admissibility of which is governed by s. 30 of the Canada Evidence Act (R.S.C. 1970, c. E-10). The only question is whether the relevant provisions of this section were complied with.

Appellant argued, first, that Exhibit P-O-1 was inadmissible in evidence because it was not an original but a copy, and the copy was not accom­panied by the affidavit required by s. 30(3) of the Act.

The air waybill which respondent thus sought to introduce in evidence is governed by the Carriage by Air Act (R.S.C. 1970, c. C-14) and its Schedules. Article 6 of Schedule I reads in part as follows:

(1) The air waybill shall be made out by the consign—or in three original parts and be handed over with the cargo.

(2) The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor and by the carrier and shall accompany the cargo. The third part shall be signed by the carrier and handed by him to the consignor after the cargo has been accepted.

Article 8 of the same Schedule prescribes the nature of the information which must appear in

[Page 729]

the bill, and Article 11 deals with the evidentiary value of an air waybill:

Article 11

(1) The air waybill is prima facie evidence of the conclusion of the contract, of the receipt of the cargo and of the conditions of carriage.

(2) The statements in the air waybill relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the cargo.

Article 6 indicates that a waybill consists of three original copies; there may undoubtedly be additional copies (Article 8(n)), but they are copies which do not per se have the weight which Article 11 attributes to each of the three originals.

The document which the trial judge refused to allow to be produced bore on its face the statement:

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

Right at the bottom of the face of the document, it states:

COPY 4 (DELIVERY RECEIPT)

The back of the document bears the following form, which has been left blank:

Received in good order and condition at__________on__________

(SIGNATURE OF CONSIGNEE OR HIS AGENT)

It seems clear that Exhibit P-O-1 is not one of the three original copies of a waybill referred to by Article 6, quoted above; it is a copy of a waybill which was intended, when duly completed, to be used as an original delivery receipt.

[Page 730]

In my opinion, therefore, Exhibit P-O-1 could not be admitted in evidence unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act. In view of this conclusion, there is no need for me to express an opinion on the other arguments put forward by appellant against the introduction of this exhibit.

The trial judge also refused to admit in evidence certain other exhibits tending to establish that the accused was a user of marijuana.

In a search made of the accused's home before his arrest, the prosecution seized a number of items: these included, inter alia, a manuscript in which the accused extolled the virtues of marijua­na, a metric scale, a cigarette butt made of a green vegetable substance, tweezers and three pipes.

The trial judge allowed all these exhibits to be presented. He also allowed the prosecution to prove that the cigarette butt and one of the pipes gave off an odour of cannabis. The uncontradicted evidence disclosed in addition that these items (metric scale, tweezers and pipes) are of the type that is ordinarily found in the possession of marijuana users. However, the trial judge did not allow the introduction of certificates of analysis which would have established beyond any question that the cigarette butt was made of marijuana and that the pipes had been used to smoke this drug, traces of which were also found on the tweezers and the metric scale. The judge also refused to admit a glass jar containing a green substance, which had been seized at the accused's home in the aforementioned search, and the certificate of anal­ysis establishing that this substance was marijua­na.

The general rule as to the admissibility of evi­dence is that it must be relevant. This principle is stated as follows in Halsbury's Laws of England, 4th ed. vol. 17, para. 5, at p. 7:

The prime requirement of anything sought to be admit­ted in evidence is that it is of sufficient relevance. What is relevant (namely what goes to the proof or disproof of a matter in issue) will be decided by logic and human experience, and facts may be proved directly or circum­stantially. But while no matter should be proved which

[Page 731]

is not relevant, some things which are relevant by the normal tests of logic may not be proved because of exclusionary rules of evidence. Such matters are inad­missible. Admissible evidence is thus that which is (1) relevant and (2) not excluded by any rule of law or practice. It may be that an item of evidence is admis­sible on one ground and inadmissible on others; if so, it will be admitted. Evidence may also be admissible for one purpose and not for another.

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real proba­tive value with respect to the latter (Cross, On Evidence, 4th ed., at p. 16).

Thus, apart from certain exceptions which are not applicable here, evidence is not admissible if its only purpose is to prove that the accused is the type of man who is more likely to commit a crime of the kind with which he is charged; such evi­dence is viewed as having no real probative value with regard to the specific crime attributed to the accused: there is no sufficient logical connection between the one and the other.

In Boyle and Merchant[20], Lord Reading C.J. said, at p. 193:

There is, as is apparent from a consideration of the authorities, an essential difference between evidence tending to shew generally that the accused has a fraudu­lent or dishonest mind, which evidence is not admissible, and evidence tending to shew that he had a fraudulent or dishonest mind in the particular transaction, the subject-matter of the charge being then investigated, which evidence is admissible. It has been laid down that to make such evidence admissible there must be a nexus or connection between the act charged and the facts relating to previous or subsequent transactions which it is sought to give in evidence.

More recently, in Noor Mohamed v. The King[21], Lord du Parcq wrote, at p. 192:

[Page 732]

There can be little doubt that the manner of Ayesha's death, even without the evidence as to the death of Gooriah, would arouse suspicion against the appellant in the mind of a reasonable man. The facts proved as to the death of Gooriah would certainly tend to deepen that suspicion, and might well tilt the balance against the accused in the estimation of a jury. It by no means follows that this evidence ought to be admitted. If an examination of it shows that it is impressive just because it appears to demonstrate, in the words of Lord Her­schell in Makin's case ([1918] A.C. 221, 236) "that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried", and if it is otherwise of no real substance, then it was certainly wrongly admitted.

In R. v. Barbour[22], Duff C.J., speaking for the majority, at p. 467 expressly approved a passage from the reasons of Kennedy J. in Bond[23], in which the latter stated that evidence must always be "strictly relevant to the particular charge and have no reference to any conduct of the prisoner unconnected with such charge".

Finally, in Boardman v. D.P.P.[24], Lord Salmon said at pp. 912 and 913:

My Lords, evidence against an accused which tends only to show that he is a man of bad character with a disposition to commit crimes, even the crime with which he is charged, is inadmissible and deemed to be irrele­vant in English law.

…

... The test must be—is the evidence capable of tending to persuade a reasonable jury of the accused's guilt on some ground other than his bad character and disposi­tion to commit the sort of crime with which he is charged?

This rule of relevance applies to all kinds of evidence: it covers evidence relating to items found in the accused's possession just as much as written or testimonial evidence. In Thompson v. The King[25], which involved a charge of gross indecency,

[Page 733]

Lord Sumner said at pp. 235 and 236:

My Lords, if the person who committed the offence had, either by word or conduct, established any connec­tion between what passed on that occasion and the photographs themselves, their admissibility, found as they were so soon afterwards, would present no difficul­ty. If, on the other hand, there had been nothing to show a propensity in the criminal to the practice of such acts, such as the making of the appointment, I should have thought that the photographs were merely objects going to the accused's bad character and not to his identity with the criminal in the particular case. I certainly do not think it could be held that, as a matter of course, even in the case of crimes of this class, the articles found in a man's possession, not as parts of the transaction which is being inquired into, but at a separate time and place, could, as such, be put in evidence against him merely because they were such as criminals possess or use, and in the absence of any circumstance in the crime tending to show a specific connection between it and the articles in question. If a man could be convicted of a particular burglary, in which it was clear that no tools had been used at all, merely because at another place and time burglar's implements were found on his prem­ises, it is difficult to see what limit could be put to the admissibility of general evidence of bad character, and the fact that evidence of articles found on the premises of accused persons is constantly given without much question, though I doubt not in the vast majority of cases quite rightly, is really only misleading, unless at the same time we ask the question what exactly does this purport to prove and by what probative nexus does it seek to prove it.

The relevance of a fact that is sought to be introduced in evidence must of course be determined in accordance with the nature of the case and the various questions at issue.

In the case at bar, what is the relevance of the evidence the admissibility of which is at issue?

In his reasons Mayrand J.A. observed, first, that the exhibits should have been admitted [TRANSLA­TION] "to establish the accused's guilty intent".

Mens rea is an essential aspect of the crime attributed to the accused. The prosecution cannot therefore be content with proving only the impor­tation of the dresser; this occurred in normal circumstances

[Page 734]

which did not suggest that it contained a foreign substance. The prosecution also had to establish beyond a reasonable doubt that, to the accused's knowledge, this dresser contained a nar­cotic when it was imported (Beaver v. The Queen[26], at p. 540; R. v. Boyer[27], at p. 141; R. v. Blondin[28], at pp. 120, 122 and 123).

To establish this guilty knowledge on the part of the accused, the prosecution sought to prove that the accused himself used marijuana; this was why it wished to introduce the items seized at the accused's home; counsel for the prosecution said at the 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) mens rea, (2) the accused's interest in importing, the interest he may have.

The question to be resolved in the case at bar is whether the fact that the accused uses marijuana creates a logical inference that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. To me there is no connection or nexus between either of these two facts. The use of marijuana by the accused cer­tainly established that he knew of this narcotic, that he was in a position to identify it, but it had no probative value in relation to the guilty knowl­edge which must be proven by the prosecution. The evidence that the prosecution sought to introduce can have only one effect: that of raising suspicions against the accused solely for the reason that a marijuana user is more likely to import the substance illegally than someone who does not use the narcotic. In my view, this is precisely the type of evidence which cannot be admitted.

This is a case for the application of the rule in Rance and Herron[29], at p. 121, regarding similar fact evidence, which was recently approved in

[Page 735]

Scarrott[30], at p. 129:

... The gist of what is being said both by Lord Cross and by Lord Salmon is that evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit crimes of this kind and is positively probative in regard to the crime now charged. That, we think, is the test which we have to apply on the question of the correctness or otherwise of the admission of the similar fact evidence in this case.

Nor should this evidence be admitted because it may disclose the interest of the accused in the importation. Proof of the motive for a crime is generally admitted as circumstantial evidence: in his Textbook of Criminal Law, Glanville Williams writes at p. 56:

The prosecution may prove a motive for the crime if it helps them to establish their case, as a matter of circum­stantial evidence; but they are not legally bound to prove motive, because a "motiveless" crime is still a crime.

However, I think it is clear that evidence as to the accused's motive cannot be admitted if it is not relevant, that is, if it does not disclose a sufficient­ly close logical connection between the facts that are to be proven as a motive and the crime com­mitted. Proof of the accused's motive cannot be a means of circumventing the application of the rules of evidence regarding relevance and similar acts.

In Barbour, cited above, Duff C.J. wrote at p. 469:

If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.

[Page 736]

In the case at bar, I do not think it can be said that the use of marijuana by appellant is in itself a fact "seriously tending, when reasonably viewed, to establish motive for the commission" of the crime of importation with which he is charged.

In support of its decision, the Court of Appeal referred to its finding in Levac[31]; Mayrand J.A. observed:

[TRANSLATION] In Levac v. The Queen (C.A.M. 10-000030-73, judgment dated June 2, 1975), appellant relied as a ground of appeal on the fact that the trial judge had authorized the introduction 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 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."

If this Court held in the aforementioned case that the evidence was properly admitted, I must conclude in the case at bar that the same evidence should be admitted.

The very wording of the reasons of Owen J.A. indicated that the decision in Levac depended on the particular circumstances of the case: Owen J.A. expressly stated, "I agree with the presiding Judge that in this particular case the exhibits and the evidence ... was relevant to an essential element

[Page 737]

in the charge against Levac, ...". The deci­sion in Levac should therefore not be given a general application which it does not warrant.

The other ground relied on by the Court of Appeal was that the evidence at issue could also have been used to [TRANSLATION] "cast doubt on the hypothesis that he [the accused] was the inno­cent victim of an importation orchestrated by other persons".

This second ground does not appear to me to have any more validity than the first one. The accused called no witnesses in his defence; nothing in the cross-examination of the prosecution wit­nesses suggests that the accused intended to argue that he did not know what marijuana was and could not identify it. This is not a situation where the prosecution may try to rebut a possible defence; rather, it must try to prove one of the essential elements of the crime attributed to the accused: guilty knowledge (see Thompson v. The King[32], per Lord Sumner, at p. 232; Noor Mohamed v. The King, supra, per Lord du Parcq, at pp. 191 et seq.).

I therefore conclude that the trial judge properly refused to admit in evidence the exhibits in question.

III

I now come to the last argument approved by the Court of Appeal, the insufficiency of the judge's charge to the jury: he allegedly failed to explain to the jury the scope of paras. (b) and (c) of s. 21 of the Criminal Code, regarding the parties to an offence.

Following the judge's charge to the jury and in the latter's absence, counsel for the prosecution suggested that the judge should comment on s. 21 Cr. C.:

[TRANSLATION]

IN THE ABSENCE OF THE JURORS

BY MR YVON ROBERGE COUNSEL FOR THE CROWN

Your Lordship, if I might respectfully suggest that you address the jury concerning the parties to an offence, concerning section twenty-one (21).

[Page 738]

You mentioned the accused was charged with having imported-if you are persuaded that he did import. Clearly, there is no evidence that the accused cleared the customs, so I feel it is essential for the jury to know that a person can be found guilty according to whether he commits the act, aids someone in committing it, or prevents someone from committing it.

BY THE COURT

I thought of that, but I do not think section twenty-one (21) enters into this case. Your evidence was presented to show that it was him, you tried to prove that he imported the thing. Two (2) persons were not involved.

BY MR YVON ROBERGE COUNSEL FOR THE PROSECU­TION

That is correct .. .

The Court of Appeal was of a different view: Mayrand J.A. said:

[TRANSLATION] With respect, I feel that the suggestion by counsel for the Crown was apt, and that the explana­tions requested were necessary to dispel any possible ambiguity.

I do not agree. There is nothing in the evidence to suggest that appellant might have aided anyone in committing the offence with which he is charged; on the contrary, all the evidence of the prosecution is designed to show that the narcotic was imported by appellant himself. The trial judge must instruct the jury on the rules of law raised by the trial as it unfolds before him; he is not required to make theoretical statements on points of law which do not arise in the case.

I therefore conclude that the trial judge did not err when he refused to explain to the jury the scope of paras. (b) and (c) of s. 21(1) Cr. C.

For these reasons, I am of the opinion that the appeal should be allowed, the decision of the Court of Appeal set aside and the verdict of acquittal returned in favour of appellant restored.

The judgment of Martland and Pigeon JJ. was delivered by

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

[Page 739]

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

[Page 740]

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:

[Page 741]

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)-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.