R. v. Jackson, 2007 SCC 52, [2007] 3 SCR 514

                                                 SUPREME COURT OF CANADA

Between:

Miguel Arias Jackson

Appellant

and

Her Majesty The Queen

Respondent

Official English Translation: Reasons of Deschamps J.

Coram: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

______________________________

R. v. Jackson, [2007] 3 S.C.R. 514, 2007 SCC 52

Miguel Arias Jackson                                                                                                        Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Jackson

Neutral citation:  2007 SCC 52.

File No.:  31847.

2007:  October 19; 2007:  December 6.

Present:  Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court of appeal for quebec

Criminal law — Appeals — Unreasonable verdict — Accused convicted of illegal production of marijuana — Whether verdict unreasonable — Whether accused convicted solely because present at scene of crime — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).

The accused was arrested with four others on the site of a secluded marijuana plantation in a remote area of the forest and was convicted of illegal production of marijuana.  The majority of the Court of Appeal upheld the conviction; the dissenting judge would have substituted an acquittal on the basis that the verdict was unreasonable within the meaning of s. 686(1) (a)(i) of the Criminal Code .

Held (LeBel and Deschamps JJ. dissenting):  The appeal should be dismissed and the accused’s conviction affirmed.

Per Bastarache, Binnie, Fish, Abella and Rothstein JJ.:  The mere presence of an accused at the scene of a crime does not prove culpable participation in its commission; here, however, the accused’s conviction does not rest merely on his  presence at the scene.  It rests, rather, on the cumulative effect of his apprehension at the scene, the rejection of his explanation for being there, the particular nature of the offence, the context in which it was committed, and other circumstantial evidence of his guilt.  In view of the circumstances and facts of this case, it was open to the trial judge to conclude that the accused’s presence was consistent only with his culpable involvement in the illegal production of marijuana.  [3] [10]

Per LeBel and Deschamps JJ. (dissenting):  The accused is charged not with being present at a cannabis production site but, rather, with producing cannabis.  Yet it can be seen from the trial judge’s reasons that his decision to convict the accused was based solely on the presence of the accused at the scene.  No evidence establishing his participation in the alleged crime was adduced.  Had the judge analysed the elements of the offence, he would have had to conclude that the unexplained presence of the accused on the plantation was not in itself evidence of his participation in the production of cannabis, and enter an acquittal. [13] [16] [21-22]

Cases Cited

By Fish J.

Referred to:  Dunlop v. The Queen, [1979] 2 S.C.R. 881.

By Deschamps J. (dissenting)

R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).

APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Rochon and Côté JJ.A.), [2007] Q.J. No. 285 (QL), 2007 QCCA 67, affirming the accused’s conviction.  Appeal dismissed, LeBel and Deschamps JJ. dissenting.

Clemente Monterosso and Marie‑Hélène Giroux, for the appellant.

Denis Pilon, for the respondent.

The judgment of Bastarache, Binnie, Fish, Abella and Rothstein JJ. was delivered by

Fish J. —

                                                                              I

1                                   The appellant was convicted at trial for having illegally produced marijuana and his conviction was affirmed by a majority in the Quebec Court of Appeal ([2007] Q.J. No. 285 (QL), 2007 QCCA 67).  The dissenting judge would have set aside the appellant’s conviction and entered an acquittal on the ground that the verdict at trial was unreasonable. 

2                                   The present appeal to this Court, as of right, is based entirely on the dissent in the Court of Appeal and the only issue, therefore, is whether the appellant’s conviction amounts to an unreasonable verdict within the meaning of s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 .  To succeed under that provision, the appellant was bound to persuade us that no properly instructed jury acting judicially could reasonably have found him guilty — as the trial judge did in this case.  He has failed to do so, and I would therefore dismiss the appeal.

II

3                                   The appellant relies for the success of his appeal on the proposition that  mere presence at the scene of a crime does not prove culpable participation in its commission.  That proposition is entirely sound.  As we shall see, however, it is of little assistance to the appellant, whose conviction does not rest on his mere presence at the scene of the crime.  It rests, rather, on the cumulative effect of his apprehension at the scene, the rejection of his explanation for being there, the particular nature of the offence, the context in which it was committed, and other circumstantial evidence of his guilt.  A brief overview of the facts will suffice to explain this conclusion.

4                                   The appellant and four others were arrested on the site of a secluded marijuana plantation in a remote area of the forest.  The entire site was dedicated to the production of marijuana on a commercial scale.  It bore no evidence of any legitimate business enterprise, wilderness camping or other recreational activities.  As indicated by  its dimensions and equipment, this operation engaged more than one participant, or even two.

5                                   At the time, the appellant had been there for at least two days.  Of the four others present, two were previous acquaintances.  At least one is admitted to have been actively engaged in the production of marijuana on that plantation during that time.  The equipment found there — [translation] “as if by chance”, in the trial judge’s words — indicated that five persons were involved.  As I have mentioned, five persons were in fact present when the police arrived.  The appellant was one of the five.

6                                   When the police appeared, the appellant was sleeping in a camouflaged tent on the site.  The tent contained fertilizer and the trial judge found as a fact that  [translation] “[t]here was. . . growing equipment in the tent he was staying in and where he was arrested” (emphasis added).  The appellant emerged from that tent wearing rubber boots, not the running shoes he claimed to have been wearing on his arrival.  The boots, he said, were his size — but belonged to someone else. 

7                                   The appellant did not contradict any of this evidence in his testimony at trial; nor, in appealing his conviction, did he challenge any findings of fact by the trial judge.

8                                   Moreover, the appellant’s implausible explanation of his presence on the marijuana  plantation was rejected, understandably, by the trial judge.  This rejection of his explanation precluded any reasonable inference that the appellant in fact had a “better” — or exculpatory — reason for being there.

9                                   As the Court made clear in Dunlop v. The Queen, [1979] 2 S.C.R. 881, an accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction.  But that is not our case.  Here, the accused’s prolonged and unexplained presence on the marijuana plantation was a cornerstone of the Crown’s case against him, but not its entire evidentiary edifice.

10                               In the circumstances and on the facts I have outlined, it was open to the trial judge to conclude, as he did, that the appellant’s presence at the scene of the crime was consistent only with his culpable involvement in the production of marijuana with which he was charged.

III

11                               For all of these reasons and those given by the majority in the Court of Appeal, I would dismiss the present appeal and affirm the appellant’s conviction at trial.

English version of the reasons of LeBel and Deschamps JJ. delivered by

12                               Deschamps J. (dissenting) — The state benefits from broad investigative powers.  This is necessary for the prevention and suppression of crime.  The police investigation is essential to the work of prosecutors, who must prove beyond a reasonable doubt that alleged crimes have been committed.  They cannot do so by means of vague allusions or associations; not even the cumulative effect of many such allusions or associations can turn a lack of evidence into evidence that a properly instructed judge, acting judicially, might rely on to convict the appellant.  In my opinion, there is a lack of evidence in the case at bar.

13                               It is the majority’s view that the appellant was convicted on the basis of his presence on the plantation, the rejection of his explanation, the nature of the offence he is charged with, the context, and other circumstantial evidence.  With respect, it can be seen from the judge’s reasons that his decision to convict the appellant was based solely on the appellant’s presence at the scene.  No evidence establishing his participation in the alleged crime was adduced.  Moreover, the discredit thrown on his testimony does not turn an unexplained presence into a culpable one.

14                               The trial was short.  Two police officers testified briefly, and a map and 46 photographs were produced.  The appellant also testified.  The testimony is reproduced in its entirety.  The oral judgment is brief.  It consists primarily of an explanation of the judge’s reasons for rejecting the appellant’s testimony.  The judge does not address the elements of the offence. The most relevant passage of the judgment reads as follows:

[translation]  From the moment the accused gave testimony that was not credible, it must also be asked whether that testimony raises a doubt. I have already answered this question.  However, it must be asked whether, on the basis of the evidence, of all the evidence, that includes his testimony. It must of course be asked whether, on the basis of all the evidence accepted by the Court, whether there is proof beyond a reasonable doubt.  I am absolutely convinced that there is such proof, and I am absolutely convinced, beyond a reasonable doubt, of the guilt of the accused and of his culpable presence at the scene.

15                               This conclusion follows a series of comments that show clearly the importance the judge attaches to the appellant’s presence on the plantation:

[translation] So here, the location must be considered.  The location here, it was in the woods, and there was rudimentary equipment, camouflaged, evidently to conceal what was going on at this location.  There were five (5) people there and, as if by chance, the equipment was consistent with the presence of five (5) people.  It was in the woods, in an out‑of‑the‑way place, where there is no doubt that illegal activities, namely the growing of cannabis, were taking place.  It is clear that, given the circumstances, the location of the place, and the activities going on there, it is clear that the accused, who was under no obligation to testify, nevertheless had a certain de facto obligation to explain his presence at the scene.  Furthermore, there was growing equipment in the tent he was staying in and where he was arrested.  He therefore testified in an attempt to explain his presence at the scene. . . .

. . . It was clear that, from that moment, the accused, who says that he did not want to get involved in what was going on at the scene, should have left — that much is sure.  He was so certain that he should not get involved in this type of activity that he should have left the scene.  He did not do so. . . .

. . . [] given the place where the events in question took place, given the activities that went on there, and given the presence of equipment in the tent of the accused, the accused had, at a minimum, to raise a reasonable doubt for the Court in his testimony. . . .  [Emphasis added.]

16                               The problem is that the appellant is charged not with being present at a cannabis production site but, rather, with producing cannabis.  As the dissenting judge in the Court of Appeal pointed out, the evidence is quite limited:

[translation]  When he was arrested, the appellant was asleep in the tent, in the middle of the plantation.  There is no direct evidence establishing that he took part in any way whatsoever in the production of cannabis.  There were no visual observations by the police, the appellant’s fingerprints were not found on any of the objects used to grow, propagate or harvest the cannabis plants, and neither the accused nor anyone else gave testimony or made statements to the effect that he had taken part.  The appellant’s testimony, which the judge did not find to be credible, cannot be used to prove, a contrario, the acts that the appellant denies having committed; in other words, not believing the appellant’s denial that he handled any object whatsoever used to produce cannabis does not justify a conclusion that, contrary to what he says, he did handle the objects in question.  The presence of a bag of manure in the tent where the appellant was sleeping and the fact that he slipped on a pair of rubber boots before exiting the tent when he was arrested are not sufficient, in my view, to establish beyond a reasonable doubt that the appellant was producing cannabis or was aiding and abetting, within the meaning of s. 21 Cr.C., any other persons to do so.

([2007] Q.J. No. 285 (QL), 2007 QCCA 67, at para. 48)

17                               These excerpts suffice to demonstrate a lack of evidence of the essential elements of the offence charged against the appellant.  It is not open to the Court to reinterpret the evidence.  Unfortunately, that is what the majority are doing, and I would accordingly like to stress two points.

18                               The majority refer (at para. 5) to the trial judge’s comment that, [translation] “as if by chance, the equipment [on the plantation] was consistent with the presence of five (5) people”.  However, this comment is not supported by the evidence.  What can be seen from the evidence is that the following items were found there:  three tents, an unspecified number of mattresses and sleeping bags, a few pieces of clothing, a flashlight, an air pistol, three pairs of scissors used in the production of marihuana, bags of fertilizer, some pots, tubs of water, a pumping system, pesticide application equipment, and a dryer.  There is no doubt that this is all the equipment needed to grow cannabis, but there is absolutely nothing in the evidence to justify the conclusion that “the equipment was consistent with the presence of five (5) people”.  In my opinion, this assertion should be disregarded, as should the judge’s association of the appellant with [translation] “a longtime friend, a fellow countryman, [who] was at the scene, who was unquestionably involved in the business”.  The fact that the appellant was found in the company of a fellow Dominican who was growing cannabis does not make him a party to the offence.  No one, in Canada, is guilty by association.

19                               The majority also appear to attach probative value to the fact that, when the appellant was arrested, he came out of his tent wearing someone else’s boots.  The appellant commented on the incident of the boots, stating that he had slipped on the boots of his tent‑mate, who had rushed out of the tent without putting them on.  The trial judge did not say that he considered this incident to be relevant.  I have great difficulty inferring anything from the fact that the appellant was not wearing his own shoes, given the commotion described both by the appellant and by the police officer involved in the operation.

20                               In R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5, Fish J. distinguished the approach to be taken by an appellate court in respect of a jury’s verdict from the one to be taken in respect of reasons given by a judge.  It is the judge’s reasons that the appellate court must review to determine whether the verdict is unreasonable or is not supported by the evidence.  If the facts on which the judge relies are not in the record, the judge’s reasons cannot serve as a basis for the verdict. 

21                               In the case at bar, the judge focussed on the fact that the appellant was present at the scene.  There is no evidence to support his comment on the correlation between the number of people and the equipment.  He did not analyse the elements of the offence.  Had he done so, he would have had to conclude that the appellant’s unexplained presence was not evidence of his participation in the alleged crime.  Many valid judgments are rendered by trial courts.  But when trial courts err, appellate courts have the authority and a duty to intervene. 

22                               For these reasons, I would allow the appeal.  Given the lack of evidence, I would have entered an acquittal.

Appeal dismissed, LeBel and Deschamps JJ. dissenting.

Solicitors for the appellant:  Monterosso Giroux, Montréal.

Solicitor for the respondent: Criminal and Penal Prosecutions of Quebec, Gatineau.