Morris v. The Queen, [1983] 2 S.C.R. 190

SUPREME COURT OF CANADA

Morris v. The Queen, [1983] 2 S.C.R. 190

Date: 1983-10-13

Gary Robert Morris Appellant;

and

Her Majesty The Queen Respondent. File No.: 17174.

1982: November 2; 1983: October 13.

Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Evidence — Admissibility — Conspiracy to import and traffic in heroin — Evidence tending to show disposition — Whether or not trial judge erred in admitting into evidence a newspaper clipping tending to show interest by the accused in the heroin trade — Whether or not, given error on the part of the trial judge, evidence supported conviction — Criminal Code, R.S.C. 1970, c. C-34, s. 613(i)(b)((ii).

Appellant appealed as of right to this Court from a judgment of the British Columbia Court of Appeal upholding appellant's conviction of conspiracy to import heroin from Hong Kong and to traffic in heroin. The dissenting judge would have ordered a new trial because he maintained the trial judge wrongly admitted into evidence and took into consideration a newspaper clipping found in appellant's home and dealing with the heroin trade in Pakistan. At issue was whether or not the trial judge erred in admitting this newspaper clipping into evidence, and if so, whether or not the conviction should be upheld pursuant to s. 613(1)(b)(iii) of the Criminal Code.

Held (Dickson, Lamer and Wilson JJ. dissenting): The appeal should be dismissed.

Per Ritchie, Beetz, Estey and McIntyre JJ.: The trial judge did not err in admitting evidence of the newspaper clipping. An inference could be drawn from the unexplained presence of the clipping among appellant's possessions that he had an interest in and had informed himself on the sources of supply of heroin—a subject of vital interest to one concerned with importing it. The probative value of such evidence may be low, but the trial judge did not consider its prejudicial effect to be so great as to be excluded. It would not be proper here for this Court to substitute its view on this matter of discretion for that of the trial judge.

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[R. v. Gaich (1956), 1956 CanLII 520 (ON CA), 24 C.R. 196; R. v. Hannan, 1963 CanLII 728 (NS SC), [1964] 2 C.C.C. 340; Picken v. The King, 1938 CanLII 21 (SCC), [1938] S.C.R. 457; R. v. Mustafa (1976), 65 C.A.R. 26; R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231; R. v. Jesseau and Breen (1961), 1961 CanLII 471 (BC CA), 129 C.C.C. 289; R. v. Hull, [1902] Q.S.R. 1; R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272, referred to; Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, distinguished.]

APPEAL from a judgment of the British Columbia Court of Appeal 1982, 68 C.C.C. (3d) 115, dismissing an appeal from conviction by Anderson Co. Ct. J. sitting without a jury. Appeal dismissed, Dickson, Lamer and Wilson JJ. dissenting.

Kenneth S. Young, for the appellant.

Douglas J. A. Rutherford, Q.C., and S. David Frankel, for the respondent.

The judgment of Ritchie, Beetz, Estey and McIntyre JJ. was delivered by

MCINTYRE J.—I have had the opportunity of reading the reasons for judgment prepared in this case by my brother Lamer. I agree with his observation on the subject of the relevancy of evidence. I also agree with his exposition of the reason for and the development of the exclusionary rule which applies to evidence in criminal cases dealing only with the question of disposition and character of the accused. I am unable, however, to agree with his characterization of the newspaper clipping in this case as evidence indicating only a disposition on the part of the appellant.

In my view, an inference could be drawn from the unexplained presence of the newspaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic. It is this feature which distinguishes the case at bar from Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, where the purpose of the impugned evidence was to show that the accused was a user of marijuana and had the necessary mens rea for the offence of importing.

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Pratte J. dealt with the matter in these words, at p. 734:

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.

In the case at bar the connection of nexus, absent in the Cloutier case, was clearly present. Depending on the view of the trier of fact and the existence of other evidence, an inference could possibly have been drawn or could have been supported to the effect that preparatory steps in respect of importing narcotics had been taken or were contemplated.

The evidence of the newspaper clipping is similar in nature to the cheque forms of certain banks and the list of banks found in possession of the accused and admitted in evidence on a charge of fraudulently endorsing and cashing a cheque in R. v. Gaich (1956), 1956 CanLII 520 (ON CA), 24 C.R. 196 (Ont. C.A.), or the list of burgled premises found upon one of the accused which was admitted in evidence on a charge of unlawful possession of house-breaking implements in R. v. Hannam, 1963 CanLII 728 (NS SC), [1964] 2 C.C.C. 340 (N.B.C.A.) Other cases which have dealt with this issue are: Picken v. The King, 1938 CanLII 21 (SCC), [1938] S.C.R. 457; R. v. Mustafa (1976), 65 C.A.R. 26; R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.); R. v. Jesseau and Breen (1961), 1961 CanLII 471 (BC CA), 129 C.C.C. 289 (B.C.C.A.); and an Australian case, R. v. Hull, [1902] Q.S.R. 1.

I agree that the probative value of such evidence may be low, especially since the newspaper article here concerns the heroin trade in Pakistan rather than in Hong Kong, which was apparently the source of the heroin involved in this case. However, admissibility of evidence must not be confused with weight. If the article had concerned the heroin trade in Hong Kong, it would of course have had greater probative value. If the article had been a manual containing a step-by-step guide to importing heroin into Vancouver from Hong Kong, the probative value would have been still greater. The differences between these examples,

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however, and the facts at bar are differences in degree, not kind. In other words, the differences go to weight and not to admissibility.

The weight to be given to evidence is a question for the trier of fact, subject of course to the discretion of the trial judge to exclude evidence where the probative value is minimal and the prejudicial effect great: see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272. In the present case the trial judge did not consider that the evidence should be thus excluded. In my opinion it would not be proper in the circumstances of this case for this Court to substitute its view on this matter of discretion for that of the trial judge. In my opinion the trial judge made no error in law in admitting evidence of the newspaper clipping and I would therefore dismiss the appeal.

The reasons of Dickson, Lamer and Wilson JJ. were delivered by

LAMER J. (dissenting)—The appellant, one Gary Robert Morris, was convicted in Vancouver, by a County Court Judge sitting without a jury, of having conspired with others to import and traffic heroin. He appealed from his conviction to the British Columbia Court of Appeal. His appeal was heard by a panel of three judges and was dismissed. One of the judges, Anderson J.A., dissented and would have allowed the appeal and ordered a new trial on the following ground of law, namely:

That the learned trial Judge erred in admitting into evidence and in taking into consideration a newspaper clipping entitled, "The Heroin Trade Moves to Pakistan", being Exhibit 26 at the Appellant's trial.

Morris now comes to this Court as of right pursuant to the provisions of s. 618(1)(a) of the Criminal Code seeking that the appeal be allowed and that an acquittal be entered.

The Facts

The issue before us does not require so complete a review of the facts as that made by the Court of Appeal as they had to deal with numerous grounds of appeal.

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Essentially the evidence is that of telephone conversations and meetings that took place during the course of one month between Morris and other persons who were in some way to various degrees directly or indirectly connected to one Wa Young who, having left for Hong Kong from Vancouver on February 9, 1979 was, upon his return on the 20th of the same month from Hong Kong, arrested after he had passed Canadian Customs and found wearing a body pack containing 472 grams of heroin. Appellant was arrested the next day. His apartment was searched and in a bottom drawer of a night table in his bedroom there was found an article which had been clipped from a newspaper. The article is undated but the fact it referred to "a 'disturbing new development' in 1977" indicates that it was written sometime since an unknown date in 1977. The article is headed "The heroin trade moves to Pakistan" and appears to have been written in Islamabad, Pakistan, by one Sharon Rosenhause, who, the paper informs us, "writes for The Los Angeles Times". It is a rather short article and I find it convenient to reproduce it here in its entirety:

In the region northwest of here, where law and order gives way to tribal rule, there is enough raw opium to satisfy all of America's estimated 450,000 heroin addicts.

No one suggests that the drug supply even begins to rival that of Southeast Asia's Golden Triangle or Mexico, but as control efforts there succeed, authorities fear that Pakistan and neighboring Afghanistan could become the new suppliers.

The International Narcotics Control Board, a UN agency based in Geneva, cited the appearance of so-called Middle Eastern heroin as a 'disturbing new development' in 1977. Small quantities of the heroin have turned up in Western Europe and, the UN agency said in its annual report, it seems it is made from illicitly produced opium in Afghanistan or Pakistan. "This development merits close monitoring by all countries and enforcement agencies concerned," the board warned.

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In mid-April, farmers in the North West Frontier province, a region often called Pakistan's "wild west," began harvesting what is expected to be a bumper crop of as much as 250 tons of raw gum opium.

According to knowledgeable sources, this is how the system works:

After the farmer plants opium seeds in September, a broker pays 50 per cent in advance for the expected yield. If the crop fails, the broker loses.

The opium usually winds up at one of several collection centres in tribal areas just west of Peshawar, the capital of the North West Frontier province, located at the top of the Khyber Pass, a virtual no-man's land and a traditional smuggling route.

Pakistan's national government has a political agent who has jurisdiction in the frontier; but the official is cautious, for reasons of political stability or physical safety. The practical effect is that there is no law in the tribal area.

This means that opium—including quantities brought by mule from Afghanistan—can be stored safely, that Pakistani opium can be shipped through the pass to Afghanistan and Iran, that the narcotic can be converted and then sent out for sale or shipment. The opium is moved by car, donkey, men and mail.

Morphine sulfate is the major product of Pakistan's conversion laboratories, authorities say. The tablet produces a heroin—like high but the high does not last as long as heroin. The drug is popular in Europe, where a tablet costs $5 to $10—the price in Pakistan for about 3,000 pills.

The growing conversion of raw opium into morphine and morphine sulfate, which can be swallowed as a tablet or dissolved and injected, indicates to observers that Pakistanis in the narcotics trade are aware of the international market.

There is said to be growing drug use—particularly morphine sulfate—among upper-class, affluent Pakistani college students. While there is no reliable estimate on how extensive this may be, Western officials predict: "Two or three years from now, they'll have an epidemic here."

At trial this evidence was found relevant and admissible over the appellant's objection. The accused offered a defence and put his character in

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issue through the testimony of several witnesses, a matter that he had not however previously raised through questions to witnesses in the course of the presentation of the Crown's case. He also testified and was cross-examined by the Crown.

The Trial Judgment

The County Court Judge listed "the significant evidence in chronological order ... " and referred specifically to the article as follows:

On February 21, Carlson and Morris were arrested in front of Morris' West Boulevard residence as they were walking down the driveway. Nothing noteworthy was found on or about either Carlson or Morris. Police officers then searched the bedroom occupied by Morris. In the drawer of a night table beside Morris' bed along with a variety of personal papers and his current passport, police found a newspaper clipping of an article entitled, "Heroin Trade Moving [sic] to Pakistan".

He referred to the accused's answers in cross examination as regards the presence of the clipping in his room as follows:

As to the newspaper clipping found in his drawer with his other personal papers, he said he had no reason to have cut it out; that he had no recollection of cutting it out; that he had never read it; and that it was just part of the junk in his drawer.

Further on, when referring to Morris' testimony he said:

Morris did give evidence. However, I must state that I found him to be an unreliable and unbelievable witness. On many key issues, he was unable to offer any explanation or was unable to recall. Many of his answers were vague and imprecise and at times conflicting and depended to a large degree on unsubstantiated assumptions. In the result, I am led to the conclusion that his explanations were nothing but a deliberate deception. [Emphasis added.]

When concluding he again referred to the clipping:

When I consider the several matters I have dealt with above as well as the articles found by the police in their

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searches of the Carlson and Young residences, the deliberate fabrication of evidence by Morris, the failure of Carlson to offer any explanation, and the evidence of the words and conduct of Carlson and Morris generally, I am satisfied beyond any reasonable doubt that Carlson, Morris and Young conspired together and with others to import heroin into Canada and accordingly I find Carlson and Morris guilty under count 1. [Emphasis added.]

The Court of Appeal

Taggart J.A. (Carrothers J.A. concurring) first found that it was "apparent that the judge took into account the existence of the article in question although I am bound to say having regard for the whole of his reasons for judgment I do not think he gave much weight to it." He then endorsed the trial judge's ruling on the basis that "The possession of the exhibit in question by the appellant ... supports an inference that the appellant was interested in sources of heroin in the Orient and in the Middle East. I think that while little weight was given to the article by the judge he was right in law in admitting it as an exhibit." We do not know, however, what disposition of the appeal would have ensued had he come to the conclusion that the trial judge had given it more than "little weight".

Anderson J.A. was of the view that "the newspaper clipping was inadmissible as being completely irrelevant." He then went on to say:

Even if it was technically relevant (and I hold that it was not) it was of such trifling weight and so prejudicial to the accused it should not have been admitted or taken into account by the learned trial judge. See R. v. Wray (1970) 1970 CanLII 2 (SCC), 4 C.C.C. 1.

And when concluding on this ground of appeal said:

In the case on appeal, the newspaper clipping had no probative value in proving the offence charged. It was not relevant in any sense and as stated in Cloutier could only have been introduced for the purpose of raising a suspicion against the accused solely for the reason that a person who reads or keeps such clippings is more likely to commit the offences charged than someone who does

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not read or keep such clippings. It follows that the clippings should not have been admitted.

The reference to Cloutier was to a decision of this Court, Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709.

The Law

While I agree with Anderson J.A. that the clipping should not have been admitted in evidence, it is not because I believe the clipping irrelevant but because it was, in my view, not admissible. His reference to the clipping as having "no probative value in proving the offence charged" is understandable given the language this Court resorted to when dealing with analogous evidence in the case of Cloutier. Cloutier was charged with importing a narcotic into Canada, namely twenty 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.

One of the grounds of appeal in this Court was that the trial judge refused to admit in evidence 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.

Pratte J., writing for a majority of this Court, stated the following, at p. 731:

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

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attributed to the accused: there is no sufficient logical connection between the one and the other.

It has been said that some might read in these comments (see Report of the Federal/Provincial Task Force On Uniform Rules of Evidence, at page 62 et seq.) a pronouncement by this Court indicating a departure from Thayer's premise of relevancy, logic and experience, and an adoption of Wigmore's concept of "legal relevancy" of which "the effect is to require a generally higher degree of probative value for all evidence to be submitted to a jury" and that "legal relevancy denotes, first of all, something more than a minimum of probative value. Each single piece of evidence must have a plus value" (Wigmore on Evidence, vol. 1, § 28.) I do not think that it was intended by the majority in this Court in Cloutier that such a departure be made. All agreed that the evidence could not be admitted to prove the accused's propensity, including the dissenting judges. In fact, the whole case in my view turned upon whether the evidence was relevant and admissible as tending to establish motive. On this aspect, Pratte J. said, at pp. 735-36:

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 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

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motive for the commission" of the crime of importation with which he is charged.

In R. v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465, from which Pratte J. found support, the Crown had adduced, on a charge of murder, evidence of quarrels between the alleged murderer, Barbour, and his lady victim. The quoted passage of Duff C.J.'s comments must be read in the light of what he stated at the outset of his remarks, at p. 467:

This appeal, in my view of it, does not raise any question of general principle.

And again:

While, as already observed, I do not consider any question of general principle is really involved in this case, I do not suggest for a moment that assistance in applying well known principles to the facts may not be gained by consulting the authorities.

When summarizing he then said, at p. 470:

By way of summary, it may perhaps be added that, first of all, the incidents in question do not appear to be such that they could reasonably be regarded as evidencing feelings of enmity or ill-will which could have been the motive actuating the homicide charged. I do not doubt that a quarrel might in its incidents or circumstances, or in its relation to other facts in evidence, have such a character as to entitle the jury to infer motive and intention and state of mind, even in the absence of verbal declaration; while, on the other hand, such an occurrence or series of occurrences might be so insignificant as to leave nothing for the jury to interpret and to afford no reasonable basis for a relevant inference adverse to the accused. The facts in each case must be looked at, and if, reasonably viewed, they have no probative tendency favourable to the Crown or adverse to the prisoner in respect of the issue joined between them, it is the duty of the court to exclude the evidence. The responsibility of the judge in such cases is a grave one if there is any risk that the evidence tendered may prejudice the prisoner. [Emphasis added.]

The Barbour decision, in my view, is not support for excluding proof of motive because of lack of sufficient logical connection, but is merely another illustration of the rule that requires a trial judge to

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exclude evidence that is of no probative value or because its probative value is outweighed by the prejudice it may cause the accused.

Thayer's[^1] statement of the law which is still the law in Canada, was as follows:

(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.

To this general statement should be added the discretionary power judges exercise to exclude logically relevant evidence

... as being of too slight a significance, or as having too conjectural and remote a connection; others, as being dangerous, in their effect on the jury, and likely to be misused or overestimated by that body; others, as being impolitic, or unsafe on public grounds; others, on the bare ground of precedent. It is this sort of thing, as I said before,—the rejection on one or another practical ground, of what is really probative,—which is the characteristic thing in the law of evidence; stamping it as the child of the jury system. [Thayer, at p. 266.]

It was through the exercise of this discretionary power that judges developed rules of exclusion. As said Thayer, at p. 265, when speaking of the rule of general admissibility of what is logically probative:

... in an historical sense it has not been the fundamental thing, to which the different exclusions were exceptions. What has taken place, in fact, is the shutting out by the judges of one and another thing from time to time; and so, gradually, the recognition of this exclusion under a rule. These rules of exclusion have had their exceptions; and so the law has come into the shape of a set of primary rules of exclusion; and then a set of exceptions to these rules.

Thus came about, as a primary rule of exclusion, the following: disposition, i.e., the fact that the accused is the sort of person who would be likely to have committed the offence, though relevant, is not admissible. As a result evidence adduced solely

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for the purpose of proving disposition is itself inadmissible, or, to put it otherwise, evidence the sole relevancy of which to the crime committed is through proof of disposition, is inadmissible.

This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other. The degree of probative value required to overcome the exclusionary rule is presently the object of some disagreement and the law is as a result somewhat unclear. We do not need consider this aspect of the rule at any length as the facts of this case do not bring us within the exception.

Lord Cross of Chelsea, in his speech in Director of Public Prosecutions v. Boardman, [1975] A.C. 421, (H.L.), at p. 456 rationalised the coming into being of the rule by noting with approval Lord Simon of Glaisdale's remarks in Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729, where he said, at p. 757:

... the reason for this general rule is not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was, so that, as it is put, its prejudicial effect would out weigh its probative value. Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.

With this statement I agree.

In Boardman, Lord Hailsham rationalised the rule as follows, at p. 451:

Two theories have been advanced as to the basis of this, and both have respectable judicial support. One is that such evidence is simply irrelevant. No number of similar offences can connect a particular person with a particular crime, however much they may lead the police, or anyone else investigating the offence, to concentrate their inquiries upon him as their prime suspect. According to this theory, similar fact evidence excluded under Lord Herschell L.C.'s first sentence has no probative value and is to be rejected on that ground. The second theory is that the prejudice created by the admission

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of such evidence outweighs any probative value it may have.

He then quoted that passage I have already quoted of Lord Simon's speech with which Lord Cross agreed and continued:

When there is nothing to connect the accused with a particular crime except bad character or similar crimes committed in the past, the probabtive [sic] value of the evidence is nil and the evidence is rejected on that ground. When there is some evidence connecting the accused with the crime, in the eyes of most people, guilt of similar offences in the past might well be considered to have probative value. ... Nonetheless, in the absence of a statutory provision to the contrary, the evidence is to be excluded under the first rule in Makin [1894] A.C. 57, 65 because its prejudicial effect may be more powerful than its probative effect, and thus endanger a fair trial because it tends to undermine the integrity of the presumption of innocence and the burden of proof. [Emphasis added.]

With respect I cannot agree. Disposition the nature of which is of no relevance to the crime committed has no probative value and as such is as any other such fact irrelevant and for that reason excluded. But if relevant to the crime, even though there is nothing else connecting the accused to that crime, it is of some probative value, be it slight, and it should be excluded as inadmissible not as irrelevant. The fact that there is little or even no other evidence connecting the accused to the crime does not diminish the intrinsic probative value proof of disposition would have in the case, but gives "more power" to "its prejudicial effect" were it not to be excluded; it is no less relevant; it is only all the more inadmissible. In that respect I differ from Lord Hailsham, and agree with Lord Cross in Boardman (supra) and Lord Simon in Kilbourne (supra).

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Now to consider the "clipping". The presence of the clipping in the room tends to prove that the accused either clipped it or received it and kept it for future reference. Had the article referred to movement of drugs in Hong Kong, to a laxity in that colony on the part of the customs officials, and so forth, it would have found its relevancy as proving the accused's participation to the conspiracies through his possession of a document that might have been instrumental to the commission of the crimes. But such is not the case. Its sole relevancy is through proof of the accused's disposition, the reasoning being as follows: that, because persons who are traffickers are more likely to keep such information than not, people who keep such information are more likely to be traffickers than people who do not, and that a person who traffics is more likely to have committed the alleged offence than a person who does not. The ultimate purpose of placing the accused in the first category (people who keep such information for future reference) is to put him in a category of people the character of which indicates a propensity to commit the offences of which he was charged. This is clearly inadmissible evidence.

The accused did, through his defence, put his character in issue. While evidence of disposition is admissible to rebut such a defence, the admissibility must be determined at the time the evidence is tendered. Had the accused, through his examination of the witness for the Crown, raised the issue of his character, evidence of his disposition could have as of then been adduced. I say "could" because, even if such had been the case, this evidence is of such slight probative value that it should even then have been excluded in any event under the judge's general discretionary power.

Taggart J.A., in his reasons indicated that he did not think the trial judge gave much weight to the clipping, probably suggesting, though not mentioning it specifically, that in any event this would be a case for the application of s. 613(1)(b)(iii) of the Criminal Code. Anderson J.A., felt that the trial judge had indeed taken into account this

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evidence. As to the strength of the Crown's case he said:

The case for the Crown is not strong and is dependent entirely on the inferences to be drawn from the record of the telephone calls from Carlson to Morris. There is no evidence of overt acts on the part of the appellant and, in addition, there is little or no evidence of association between the appellant and Young. The existence of a cheque written by Young (if Young Buck Wa is the same person as the accused Young) in the amount of $500.00 to the appellant some eighteen months earlier, while some evidence of association was of so little weight it could add little or nothing to the Crown's case.

I have read the evidence and agree with Anderson J.A. that this is not the proper case for the application of s. 613(1)(b)(iii). I cannot say however that, once the clipping and the answers of the accused when cross-examined as to the reasons for its presence in his room are excluded, there is left no evidence upon which a trier of fact might reasonably convict. As a result, I would allow the appeal, quash the conviction and order a new trial.

Appeal dismissed, DICKSON, LAMER and WILSON B. dissenting.

Solicitors for the appellant: Raibmon, Young, Campbell & Goulet, Vancouver.

Solicitors for the respondent: Department of Justice, Vancouver.

[^1]: Thayer, A preliminary treatise on evidence at the common law, p. 530.