Wednesday, August 17, 2011

No defence in admitting illegal drugs but not specific narcotic

R. v. Rai, 2011 BCCA 341 deals with a situation where an accused agrees that he was involved with some type of illegal drug but denies the specific narcotic. That alone does not amount to a defence:


[11]           In R. v. Blondin, reflex, [1971] 2 W.W.R. 1, this Court addressed the issue of what degree of knowledge of the illegal substance must be brought home to an accused in a drug prosecution.  In that case, the accused was involved in the importation of a substantial quantity of cannabis resin (hashish) contained in a scuba diving tank.  The accused, in his statement to police officers, asserted he did not know what was in the tank, although he knew that it was a drug, and did not know what hashish was.  The judge instructed the jury that it was necessary for the Crown to prove that the accused knew that the contents of the tank was the narcotic alleged, namely cannabis resin.  The accused was acquitted and the Crown appealed.  The appeal was allowed on the basis of misdirection by the trial judge concerning the specificity of knowledge required to be proven to establish guilt.

[12]           Mr. Justice Robertson delivered the main judgment which was concurred in by Davey C.J.B.C. and McFarlane J.A. concerning the issue of knowledge.  He said this at pages 13-14 of the report:

... I am of the respectful opinion that the learned trial Judge erred when he instructed the jury that, in order to find Blondin guilty, they must find that he knew that the substance in the tank was cannabis resin. It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense.

These reasons will, I fear, dispose of this case inadequately if I do not indicate how I think the jury could properly have found mens rea in the circumstances of this case. They could have done so if they had found that Blondin had been paid to smuggle a substance illegally into Canada and either was reckless about what it was or wilfully shut his eyes to what it was, inferring therefrom that he suspected that it might be a narcotic. It follows that the learned Judge ought to have told the jury that they might convict if they found that Blondin brought the substance into Canada from Japan and knew that it was a narcotic. He should also have instructed the jury that they might convict if they found that he had brought the substance into Canada illegally and had either been reckless about what it was or wilfully shut his eyes to what it was, and then drew the inference that he suspected that it might be a narcotic.

[13]           Mr. Justice McFarlane said at page 3 of the report:

I therefore agree with my brother Robertson that the jury should have been instructed that the onus on the Crown was to prove beyond reasonable doubt that the respondent knew the substance was a narcotic, although not necessarily cannabis resin.

No comments: