Morozuk v. The Queen, [1986] 1 S.C.R. 31

Wayne Peter Morozuk Appellant;

and

Her Majesty The Queen Respondent.

File No.: 17151.

1985: May 2, 3; 1986: January 30.

Present: Dickson C.J. and Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for alberta

Criminal law‑‑Drug offences‑‑Accused convicted of possession of cannabis (marihuana) for purposes of trafficking while evidence disclosing trafficking in cannabis resin‑‑Crown particularizing which substance was the narcotic while proving a different substance‑‑Possession of a narcotic for the purpose of trafficking constituting the gravamen of the offence‑‑Absence of prejudice to the accused‑‑Indictment amended and appeal dismissed by Supreme Court of Canada‑‑Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 2, 4, schedule: item 3‑‑Criminal Code, R.S.C. 1970, c. C‑34, ss. 529(4), (5), 613(1)(b)(i), (3).

Courts‑‑Jurisdiction‑‑Indictment‑‑Amendment‑‑Drug offences‑‑Variance between the particular and the evidence‑‑No amendment made throughout the proceedings‑‑Supreme Court of Canada having jurisdiction to amend conviction‑‑Criminal Code, R.S.C. 1970, c. C‑34, ss. 529(4), (5), 613(1)(b)(i), (3).

The appellant was charged of unlawful possession of a narcotic (cannabis (marihuana)) for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. At the trial, appellant submitted that he should be acquitted because the Crown particularized the substance in the indictment as cannabis marihuana when the certificates of analysis indicated it to be cannabis resin. The trial judge convicted appellant holding that the Crown had proved that he was unlawfully in possession of a narcotic, to wit, cannabis, and that he had failed to establish that his possession was not the purpose of trafficking. The Court of Appeal dismissed appellant's appeal without reasons.

Held: The appeal should be dismissed.

The gravamen of the offence is the possession of a narcotic for the purpose of trafficking. The word "narcotic", as defined in s. 2 of the Narcotic Control Act, means "any substance included in the schedule...." The substances involved in this case‑‑namely cannabis resin and cannabis (marihuana)‑‑are included in item 3 of the schedule. The Crown having particularized the narcotic should have sought an amendment under s. 529 of the Criminal Code to correct the variance between the particular and the evidence. Absent the Crown's motion, the trial judge should have considered amending the charge proprio motu under that section. Such an amendment would not have prejudiced the accused as it is apparent under the particular circumstances of this case that he was not misled in his defence in any way. Since there was no amendment in the proceedings below, it is a proper case for this Court, acting under s. 613(1)(b)(i) and (3) of the Code, to amend the indictment and to dismiss the appeal.

Cases Cited

Elliott v. The Queen, 1977 CanLII 209 (SCC), [1978] 2 S.C.R. 393, aff'g (1976), 40 C.R.N.S. 261 (B.C.C.A.); Lake v. The Queen, 1968 CanLII 28 (SCC), [1969] S.C.R. 49, applied; R. v. Barrett (1980), 1980 ABCA 118, 54 C.C.C. (2d) 75; R. v. Rawlyk (1972), 1972 CanLII 810 (SK CA), 20 C.R.N.S. 188; R. v. Land (1981), 1981 CanLII 335 (BC CA), 60 C.C.C. (2d) 118, referred to.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 529(4), (5), 613(1)(b)(i), (3).

Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 2 "marihuana", "narcotic", 4, schedule: item 3.

APPEAL from a judgment of the Alberta Court of Appeal dismissing without reasons the accused's appeal from his conviction on a charge of possession of a narcotic for the purpose of trafficking. Appeal dismissed.

Michael N. Starr, for the appellant.

S. R. Fainstein and Donna Valgardson, for the respondent.

The judgment of the Court was delivered by

1. Lamer J.‑‑The accused was charged in the Court of Queen's Bench of Alberta "that he on or about the 19th day of April, 1981, at Calgary, in the Province of Alberta, was unlawfully in possession of a Narcotic, to wit: cannabis (marihuana), for the purpose of trafficking, contrary to s. 4, Subsection 2 of the Narcotic Control Act and amendments thereto".

2. The narcotic seized was analyzed and certificates of analysis, which were introduced at trial, proved the substance to be cannabis resin.

3. During the trial, counsel for the appellant submitted that the Crown's case should fail because the certificates of analysis identified the substance as cannabis resin whereas the indictment indicated the substance as cannabis marihuana. Counsel for the appellant submitted that, the Crown having chosen to particularize the substance in the indictment as cannabis marihuana and being unable to prove it as such, the accused should be acquitted.

4. The trial judge held that the Crown had proved that the accused was unlawfully in possession of a narcotic, to wit, cannabis. He based his decision on the Alberta Court of Appeal's decision in R. v. Barrett (1980), 1980 ABCA 118, 54 C.C.C. (2d) 75. I will be referring hereinafter to this decision.

5. At the end of the trial, the trial judge held that the appellant had failed to discharge the burden that became his after he was found in possession and therefore found him guilty of the full offence of unlawfully being in possession of cannabis for the purpose of trafficking. The Crown did not move for the amendment of the indictment nor did the trial judge amend proprio motu under s. 529 of the Criminal Code.

6. The Court of Appeal of Alberta dismissed the appeal without reasons, obviously and understandably satisfied that matters had been put to rest in that province in the Barrett decision, supra. The accused now comes to this Court.

Issue

7. Did the Court of Appeal of Alberta err in dismissing the appellant's appeal inasmuch as the indictment charged the appellant with possession for the purpose of trafficking in cannabis marihuana and the certificates of analysis proved the substance in question to be cannabis resin?

The Legislation

8. Section 4(2) and (3) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, are those under which Mr. Morozuk was convicted:

9. (1) No person shall traffic in a narcotic or any substance represented or held out by him to be a narcotic.

(2) No person shall have in his possession any narcotic for the purpose of trafficking.

(3) Every person who violates subsection (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.

9. A narcotic is defined at s. 2 of the Act:

"narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule;

10. Marihuana is also defined at s. 2 of the Act:

"marihuana" means Cannabis sativa L.;

11. This definition refers to a schedule which lists twenty substances and the preparations, derivatives, alkaloids, salts (and for cannabis, the similar synthetic preparations), thereof.

12. Item 3 of this schedule is the one which lists the substances involved in this case, as follows:

13. Cannabis sativa, its preparations, derivatives and similar synthetic preparations, including:

(1) Cannabis resin,

(2) Cannabis (marihuana),

(3) Cannabidiol,

(4) Cannabinol (3‑n‑amyl‑6,6,9‑trimethyl‑6‑dibenzopyran‑1‑o1),

(5) Pyrahexyl (3‑n‑hexyl‑6,6,9‑trimethyl‑7,8,9,10‑tetrahydro‑6‑dibenzopyran‑1‑o1), and

(6) Tetrahydrocannabinol.

13. Under each of the other nineteen substances are listed, in like fashion, the respective derivatives and other forms of the substances. As a result, there are over a hundred of such listed items.

14. The first question to be addressed is whether each of the listed derivatives or preparations is a distinct offence. Of course if they are, the Crown proved the wrong offence, the indictment cannot be amended to charge a different offence, the conviction for the offence charged cannot stand, and the accused must be acquitted.

15. Two courts of appeal, the Court of Appeal for Saskatchewan, in R. v. Rawlyk (1972), 1972 CanLII 810 (SK CA), 20 C.R.N.S. 188, and the Court of Appeal for British Columbia, in R. v. Land (1981), 1981 CanLII 335 (BC CA), 60 C.C.C. (2d) 118, held that each item in the schedule created a distinct offence. Both decisions turned upon the question whether an accused, when found in possession of more than one item on the list, could be charged and convicted of separate offences for possession of each of the respective substances, or whether such possession constituted only one offence? The result of these appeals was to restore the convictions for the separate and distinct offences.

16. One court of appeal, the Court of Appeal for Alberta, in Barrett, supra, took the position that the offence created by Parliament was possession of cannabis. Inferentially that decision stands for the proposition that each of the twenty listed substances creates separate offences but that the derivatives listed under them do not.

17. I think that this Court has already, albeit under a different statute, settled the question in Elliott v. The Queen, 1977 CanLII 209 (SCC), [1978] 2 S.C.R. 393. The counts in that case were laid in British Columbia under the provisions of the Food and Drugs Act, R.S.C. 1970, c. F‑27. Section 42 thereof is identical to s. 4 of the Narcotic Control Act, supra, and makes it an offence to have in one's possession a "restricted drug" for the purpose of trafficking. Section 40 defines a restricted drug: "`restricted drug' means any drug or other substance included in Schedule H". The only difference between that schedule and the one involved in this case is that they list different substances.

18. One of the substances listed in the Food and Drugs Act is methylenedioxyamphetamine (commonly known as MDA) or any salt thereof. The three counts in the charge were respectively for, conspiracy to traffic, traffic, and possession for the purpose of trafficking of a restricted drug, to wit: MDA. Elliott was not charged as regards the salt of MDA. Convicted of trafficking (the second count), Elliott appealed and was successful upon the Court of Appeal for British Colombia finding that although it had been proved that he had a salt of MDA in his possession for the purpose of trafficking, it was not shown that he was in possession of MDA, Elliott v. The Queen (No. 2) (1976), 1977 CanLII 209 (SCC), 40 C.R.N.S. 257, at p. 261.

19. The Crown appealed the acquittal on possession (the third count) to the Court of Appeal, the bench being differently constituted. The Crown applied to the Court of Appeal to amend the charge by adding the words "a salt of" prior to the word MDA. The Court allowed the amendment, allowed the appeal and ordered a new trial on the amended charge. Commenting on this, Ritchie J., speaking for the majority of this Court, said at pp. 426‑27:

In considering the third count, however, the Court of Appeal, differently constituted, appears to have recognized that the charge was that the accused did unlawfully have in their possession a restricted drug ... for the purpose of trafficking' and that the failure to allege possession of a salt of MDA' constituted a failure to allege `a particular' of the offence which was capable of being added by way of amendment, in order to conform to the evidence which the Court had accepted in disposing of count 2.

The latter amendment did not in my opinion have the effect of charging a new offence as it did no more than specify a particular of the offence which had already been charged. If I thought the amendment to be tantamount to the charge of a different offence from that contained in the original count, other considerations might apply, but what we have here is a particularization of an ingredient of the main charge which was made necessary by the evidence which the Court had already accepted and which had in fact been in great measure conceded by the appellant.

(Emphasis added.)

And later on, said, at p. 428:

It will be observed that the gravamen of the offence under these counts is in the one case that the accused did unlawfully traffic in a restricted drug ...' and in the other that they did unlawfully have in their possession a restricted drug for the purpose of trafficking'.

(Emphasis added.)

In this respect, I see no difference between the Food and Drugs Act and the Narcotic Control Act, and the findings of this Court as regards the former are equally applicable to the latter. The gravamen of the offence is the possession of a narcotic for the purpose of trafficking. It is an offence to possess cannabis, its derivatives etc., because it is a narcotic. Possession of anything listed in the schedule is possession of a narcotic. Whether and to what extent the Crown can break down one act of possession of different narcotics into different counts is no more in issue in this case than it was in Elliott, supra, and we need not, and should not, address the issue in this case. Specifying that the narcotic was cannabis and then further specifying what kind of cannabis, that is marihuana, was particularizing the narcotic.

20. This leads us to the second question. The Crown having particularized the narcotic (or when having been ordered to do so), can a conviction be entered if a narcotic other than the one specified is proved? One thing is certain: the appellant cannot stand convicted of possession of marihuana when it has never been established that he had marihuana. The Crown should have sought an amendment under s. 529 of the Criminal Code to correct the variance between the particular and this evidence. The trial judge should have, under s. 529, absent the Crown's motion, considered amending proprio motu. The only question he had to address was whether such an amendment would prejudice the accused and, if so, whether it can be cured.

21. In my view, the situation is governed by s. 529(4) and (5) of the Criminal Code:

22. ...

(4) The court shall, in considering whether or not an amendment should be made, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry,

(b) the evidence taken on the trial, if any,

(c) the circumstances of the case,

(d) whether the accused has been misled or prejudiced in his defence by a variance, error or omission mentioned in subsection (2) or (3), and

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count thereof, the court may, if it is of opinion that the misleading or prejudice may be removed by an adjournment, adjourn the trial to a subsequent day in the same sittings or to the next sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

22. Of course if there is irreparable prejudice, there can be no amendment, the charge will stay as is, and an acquittal must be entered. As there has never been any suggestion that the accused was misled or prejudiced in any way, and, as in any event it is apparent under the particular circumstances of this case that he was not, the charge should have been amended at some stage of the proceedings, surely before registering the conviction.

23. This brings us to the third and last question. None of this having been done, must this appeal succeed and, if so, do we acquit, or do we order a new trial on an amended charge; or, on the other hand, if the appeal fails, should the appeal be simply dismissed, or should we amend the charge when dismissing?

24. In Elliott, supra, at p. 267, the Court of Appeal allowed the Crown's appeal on the third count and ordered a new trial. A new trial had to be ordered because the Court of Appeal, having reversed the trial court on possession, the accused was entitled to an opportunity of establishing that his possession was not for the purpose of trafficking. This Court found no error in that order. That is not to say that a new trial would have had to be ordered had Elliott, at trial, been found to be in possession, and, like Morozuk, been given and exercised the opportunity of establishing that trafficking was not the purpose of his possession.

25. The situation here is more akin to that with which this Court dealt in Lake v. The Queen, 1968 CanLII 28 (SCC), [1969] S.C.R. 49. Though the facts of that case are very different from those in this case, the decision is of interest because it acknowledges that an appeal court and this Court can amend a conviction upon dismissing an appeal. Lake had been charged with obtaining by false pretences a sum of $285 while the evidence indicated a sum of $56. There was no amendment sought nor made throughout the proceedings below. Spence J., for the Court said at pp. 52‑53:

The question arises whether this Court in dismissing the appeal and confirming the conviction should amend the latter. I am of the opinion that it is proper to do so. It would appear that upon the evidence the appellant should only have been convicted of obtaining by false pretences the amount of $56. The charge as laid contained a reference to a figure of about $285. This Court has the jurisdiction to make the appropriate amendment by virtue of s. 600(1) of the Criminal Code which provides:

600. (1) The Supreme Court of Canada may, on an appeal under this part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

The Court of Appeal for Ontario has power to amend the conviction to set out the smaller amount by virtue of s. 592(3) of the Criminal Code which provides:

592. (3) Where a court of appeal dismisses an appeal under subparagraph (i) of paragraph (b) of subsection (1), it may substitute the verdict that in its opinion should have been found and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.

The paragraph referred to therein, i.e., 592(1)(b)(i), provides:

592. (1) On the hearing of an appeal against a conviction, the court of appeal

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(The underlining is my own.)

In R. v. Norcross (1957), 1957 CanLII 474 (BC CA), 24 W.W.R. 160 at 165, 27 C.R. 220, 120 C.C.C. 108 (B.C.C.A.), the Court amended a conviction of theft by reducing the amount mentioned in the charge.

I would therefore dismiss the appeal. Acting under the provisions of the Criminal Code, I would substitute a conviction that the appellant between the 6th day of June 1966 and the 28th day of July 1966, at the City of Ottawa, in the County of Carleton, did unlawfully obtain the sum of $56 from Wilfred Bauer by false pretences and with intend to defraud, contrary to s. 304(1)(a) of the Criminal Code.

26. The same approach is warranted here. Acting under s. 613(1)(b)(i) and s. 613(3) of the Criminal Code, I would amend the indictment, delete the word "marihuana" and insert instead the word "resin", and then dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Michael N. Starr, Calgary.

Solicitor for the respondent: Roger Tassé, Ottawa.