R. v. BRAKE, 2022 NLCA 10, FEBRUARY 14, 2022.

FACTS: The accused was convicted of possessing cocaine for the purposes of trafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act.  He appealed from conviction, arguing that the trial judge erred by “using evidence of a

third party’s actions in furtherance of a joint agreement without first establishing that he and the third party had an agreement respecting possession of the cocaine [the R. v. Carter rule]…misapplied the law of circumstantial evidence in his treatment of the trial evidence….erred in finding that he was in possession of the cocaine…reversed the burden of proof by effectively requiring him to disprove that he was not in possession of the cocaine” (at paragraph 3).

HELD: The appeal was. The Court of Appeal

Did the Judge err by offending the Carter rule?

The Court of Appeal noted that “[t]he Carter rule governs whether hearsay evidence respecting a co-conspirator’s role in a crime can be considered in relation to another accused. The rule requires the trier of fact to ensure certain criteria are met before considering such hearsay evidence in relation to the other accused. The trier of fact must first determine that there is a conspiracy, and that the other accused is actually a member of the conspiracy. If those two criteria are met, then hearsay evidence respecting the acts and declarations of the co-conspirator done in furtherance of the object of the conspiracy can be considered as evidence against the other accused” (at paragraph 6).

The Court of Appeal concluded that “[i]n this case, the Carter rule did not apply to the Judge’s handling of the direct evidence respecting Mr. Pittman’s actions. Accordingly, he did not err in failing to adhere to it” (at paragraph 13).

Did the Judge misapply the law of circumstantial evidence?

The Court of Appeal indicated that “[t]he general rule respecting the ultimate determination in a case based on circumstantial evidence, is that, all things considered, in order to convict, the trier of fact must be satisfied that guilt is the only reasonable conclusion available on the evidence. Application of this principle does not mean that the trier of fact has to totally exclude other conceivable inferences from the evidence or to disprove every conjecture” (at paragraph 22).

The Court of Appeal concluded that “the Judge’s inferences of fact were open to him to draw, and he did not err in failing to consider other conceivable inferences for the cocaine being found at Mr. Brake’s feet” (at paragraph 26).

Did the Judge err in concluding that Mr. Brake was in possession of the cocaine?

The Court of Appeal indicated that “Mr. Brake argues that he cannot be found in possession of the cocaine simply because he was a passenger in Mr. Pittman’s car.

However, the evidence in this case establishes that Mr. Brake was not “simply present” in Mr. Pittman’s car when the cocaine was found at his feet” (at paragraph 30).

The Court of Appeal concluded that “it was open to the Judge to infer from the cumulative effect of all of the evidence and circumstances, that Mr. Pittman would not be retrieving a very valuable brick of cocaine from the trunk of his car and it being found at Mr. Brake’s feet moments later without Mr. Brake’s knowledge that the cocaine was at his feet, that he had a measure of control over it being put there,

and that he consented to it being there…In the result, the Judge’s conclusion that Mr. Brake was in possession of the brick of cocaine cannot be said to be in error” (at paragraphs 33 and 34).

Did the Judge reverse the onus of proof?

The accused argued that “the Judge’s rhetorical questions show that he put the burden on Mr. Brake to disprove his possession of the cocaine, thereby effectively reversing the burden of proof”.

The Court of Appel concluded as follows (at paragraph 35):

As part of his reasoning, the Judge asked and then answered several questions pertaining to the evidence and legal issues. Mr. Brake argues that the Judge’s rhetorical questions show that he put the burden on Mr. Brake to disprove his possession of the cocaine, thereby effectively reversing the burden of proof. I do not agree. The Judge’s use of rhetorical questions and answers in his reasoning was his way of explaining how he reached his conclusion that Mr. Brake was actually in possession of the cocaine. He posed a question, and then answered it by reference to the evidence and considering competing inferences which did not make sense to him. This was simply the Judge’s way of illustrating how and why he did not have a reasonable doubt about Mr. Brake’s guilt. In so doing, he did not shift the burden of proof to Mr. Brake.