COURT OF APPEAL FOR ONTARIO
MORDEN, AUSTIN AND GOUDGE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Appellant
Robert Frater
for the appellant
- and -
M. F. (A Young Person)
Respondent
Howard Borenstein
for the respondent
Heard: May 30, 2000
Appeal from an acquittal by Main J. dated November 15, 1999.
MORDEN J.A. (orally):
1The Crown appeals from the respondent’s acquittal by Justice
Main, sitting as a youth court judge, on a charge of unlawfully
trafficking “in a substance represented or held out to be a
controlled substance, to wit: Cocaine contrary to section 5(1) of
the Controlled Drugs and Substances Act.”
2The only witness who testified at the trial was a constable
with the Toronto Police Force. She had been on the force for
fourteen years. She was working as an undercover officer in the
area in question. She attended a convenience store in an area
well known for drug activity with the intention of making a
purchase of crack cocaine. She approached the respondent and
another male, the respondent’s brother, standing in front of a
convenience store. She asked the other male if he knew where she
could “get something”. He asked what she wanted and she replied
“just a forty piece.” She gave evidence that “forty piece” was
common street terminology for crack cocaine and that she had used
the term herself while buying crack cocaine. She had made 75 to
100 undercover purchases and was not aware that the term could
have any other meaning.
3The second male asked her to follow him and the respondent
directed her to go to a building. When they got there, the
second male told her that the respondent would deal with her.
She asked the respondent “You got it?” He said “Yeah” and held
out his hand in which there was a small plastic bag that
contained something. She handed to him $40.00 and asked him “Is
it good?” He replied “Yeah.” The respondent and the second
male were arrested shortly thereafter.
4The item obtained by the officer was a grey plastic bag. It
was opened shortly after at the police office. It was clear to
the officer that the substance was not crack cocaine. She
testified that it looked like common blackboard chalk. She
stated that she had seen crack cocaine and this substance was
different in colour and texture. Defence counsel did not cross-
examine the officer and admitted that the “buy” money issued to
the officer was found in the respondent’s possession on arrest.
5The trial judge acquitted the respondent on the basis that
the Crown had failed to prove that the substance represented by
the respondent to be cocaine was not, in fact, cocaine.
6Section 5(1) of the Controlled Drugs and Substances Act
reads:
No person shall traffic in a substance included in
Schedule I, II, III or IV or in any substance
represented or held out by that person to be such
a substance.
7The question has been decided by authority, R. v. Masters
(1973), 1973 1359 (ON SC), 12 C.C.C. (2d) 573 (Ont. Cty. Ct.), conviction aff’d.
(1994), 1974 1565 (ON CA), 15 C.C.C. (2d) 142 (Ont. C.A.). In this case the accused
was charged with trafficking in a substance held out to be a
narcotic, namely heroin. At the close of the Crown’s case he
moved for dismissal of the charge on the ground that the Crown
had failed to adduce evidence that the substance which was sold
to an undercover officer was not, in fact, a narcotic.
8Honsberger Co. Ct. J. at pp. 574-75 said:
It is my opinion that the Crown does not
have to prove what the substance was or was
not, only that whatever it was, was it in
fact held out or represented to be a narcotic?
The essence of the offence prohibited by
s. 4(1) of the Narcotic Control
Act is trafficking. If the trafficking
alleged to be was a narcotic, then proof that
the substance was a narcotic is essential to
the Crown’s case. This may be proved by
resorting to s.9. If, however, the
trafficking alleged was in a substance
represented or held out to be a narcotic, to
my mind it does not matter what the substance
was. It is the proof of the representing or
holding out as a narcotic which is the
essential element to the Crown’s case.
(Emphasis added.)
At p. 576 he said:
Therefore, I find that the Crown need
not prove what in fact the substance was, on
a charge such as here. There is evidence
that there was a substance offered and held
out to be a narcotic.
9Honsberger Co. Ct. J. dismissed the motion and the accused
was subsequently convicted and sentenced. He appealed his
conviction and sentence to this court. At p. 143 of 15 C.C.C.
(2d), Martin J.A. said for the court:
The Court was unanimously of the view that there
was no merit in the appeal from conviction and
did not call upon counsel for the Crown with
respect to this branch of the appellant’s appeal.
10The factums filed on the appeal show that the challenged
correctness of Honsberger Co. Ct. J’s ruling was the first ground
of appeal put before the court. It is clear, then, that the
actus reus of the offence charged is, simply, the selling, etc.,
of something and representing it to be a controlled substance.
The mens rea is the intention to do this. R. v. Masters has been
applied in R. v. Merritt (1975), 1975 1344 (NB CA), 27 C.C.C. (2d) 156 (N.B.C.A.)
and R. v. Webster (1992), P.E.I.J. No. 64 (Q.L.) (P.E.I.S.C.
(T.D.)).
11The appellant has brought to our attention, as possibly
causing some confusion, the later decision of this court in R. v.
Bollers (1979), 1979 2872 (ON CA), 52 C.C.C. (2d) 62. In Bollers, the accused was
charged with trafficking “in a substance represented or held out
by him to be a Narcotic, to wit: Cannabis sativa, its
preparations, derivatives and similar synthetic preparations,
namely Terahydrocannabinol (THC), contrary to Section 4(1) of the
Narcotic Control Act.”
12There was evidence that the “THC” that was sold on the
street was not THC (the narcotic content in cannabis sativa) but
PCP, also a narcotic. PCP is not a derivative of cannabis
sativa. There appeared to be evidence that the accused had sold
PCP to an undercover officer. Houlden J.A. said for the court at
pp.63-64:
Although Mr. Rosenberg based his appeal on a number
of alleged errors by the trial Judge, we think the
appeal can be decided on the following ground.
Having alleged that the appellant represented or
held out that the substance trafficked in was
tetrahydrocannabinol, the Crown had the onus of
proving that this substance was that drug: see R.
v. Merritt (1975), 1975 1344 (NB CA), 27 C.C.C. (2d) 156 at p. 160,
11 N.B. (2d) 393, and R. v. Gladstone and Rodriguez
(1977), 1977 2100 (BC SC), 37 C.C.C. (2d) 185. The only evidence on
this point was that given by Sergeant Jackson. The
Crown, therefore failed to meet the onus that rested
on it and the conviction cannot stand.
13In the light of the evidence referred to in the reasons, we
think that Bollers held that the evidence did not establish that
the accused had represented or held out the particular substance
which the indictment alleged he had represented or held out.
This was a different issue from that in Masters. Accordingly, we
do not think Bollers is contrary to Masters.
14The respondent has sought to uphold the acquittal on the
basis that the trial judge never dealt with whether he was
satisfied that the respondent in fact held out the substance to
be cocaine. This was not raised as an issue at the trial and, in
fact, in submissions made to the trial judge after the evidence
had been called the whole of the Crown’s case was admitted except
for the “legal issue” relating to the Crown not proving that the
substance was not cocaine. In any event, there was ample
evidence upon which the trial judge could conclude, as we are
satisfied that he implicitly did, that the respondent held out
that what he was selling was cocaine.
15The appeal is allowed and a finding of guilt is made.
Counsel agreed that this court should impose the disposition and
that a fit disposition, in all of the circumstances, would be one
year probation on the statutory terms. There is no reason for us
not to accept this submission and, accordingly, we place the
respondent on probation for one year on the statutory terms.
Released: June 9, 2000
“J.W. Morden J.A.”
“I agree Austin J.A.”
“I agree S.T. Goudge J.A.”