R. v. Saunders, [1990] 1 S.C.R. 1020

Her Majesty The Queen Appellant

v.

Norman Herbert Rooke and Roy Clive De Vries Respondents

indexed as: r. v. saunders

File No.: 20480.

1990: March 21*.

Present: Lamer, Wilson, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Conspiracy ‑‑ Charge to jury -- Indictment charging conspiracy to import heroin ‑‑ Evidence led at trial of importation of cocaine ‑‑ Whether trial judge erred in instructing jury that they might convict if satisfied beyond a reasonable doubt that the accused had conspired to import any narcotic.

Criminal law ‑‑ Indictment ‑‑ Amendment ‑‑ Indictment charging conspiracy to import heroin ‑‑ Evidence led at trial of importation of cocaine ‑‑ Whether this Court should allow Crown to amend charge to delete particularization of drug involved as heroin.

Respondents were charged with conspiracy to import heroin into Canada. In the course of the trial the Crown was permitted to lead evidence of the importation of cocaine, but the trial judge did not depart from the view that the Crown would be required to prove a conspiracy to import heroin. On this basis R took the stand and testified that while he had been involved in conspiracies to import other drugs, he had not been involved in a conspiracy to import heroin. In his charge, the trial judge told the jury that respondents could be convicted in the absence of proof that they conspired to import heroin, so long as the jury were satisfied that they had conspired to import a narcotic of any kind. The jury convicted respondents. The Court of Appeal set aside the convictions and directed a new trial on the ground that the Crown, having charged respondents with conspiracy to import heroin, must prove that the conspiracy in fact related to heroin and no other drug.

Held: The appeal should be dismissed.

It is a fundamental principle of criminal law that the offence as particularized in the charge must be proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin; having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence would be to undermine the purpose of providing particulars.

It would be inappropriate for this Court to allow the Crown to amend the charge to delete the particularization of the drug involved as heroin. Such an amendment, which would fundamentally and retroactively change the nature of what the Crown must prove, would be unfair and prejudicial to respondents.

Cases Cited

Referred to: Morozuk v. The Queen, 1986 CanLII 72 (SCC), [1986] 1 S.C.R. 31; R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8.

Statutes and Regulations Cited

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 5.

APPEAL from a judgment of the British Columbia Court of Appeal (1987), 1987 CanLII 2674 (BC CA), 14 B.C.L.R. (2d) 313, 58 C.R. (3d) 83, 35 C.C.C. (3d) 385, setting aside respondents' convictions on charges of conspiracy to import heroin. Appeal dismissed.

S. David Frankel, Q.C., for the appellant.

P. Michael Bolton, Q.C., and Chris Tollefson, for the respondent Rooke.

Edward L. Greenspan, Q.C., for the respondent De Vries.

//McLachlin J.//

The judgment of the Court was delivered by

McLachlin J. -- The question on this appeal is whether the trial judge erred in instructing the jury on a charge of conspiracy to import heroin that they might convict if they were satisfied beyond a reasonable doubt that the accused had conspired to import any narcotic prohibited under the Narcotic Control Act.

The accused were charged by a direct indictment, which read as follows:

Stephen Albert Rooke, Norman Herbert Rooke, Andrew Stephen Gray, Narinder Paul Rai, Tracy Ellen Saunders and Roy Clive De Vries stand charged that they, between the 1st day of June, 1982 and the 25th day of May, 1983, in or about various places in the County of Victoria, the County of Nanaimo and elsewhere in the Province of British Columbia, did unlawfully conspire together and with Douglas White, Narinder Kumar Saini and Peter Jacob Derksen, the one with the other or others of them and with persons unknown to commit an indictable offence, namely to Import a Narcotic, to wit: diacetylmorphine (heroin) into CANADA, an offence contrary to Section 5 of the NARCOTIC CONTROL ACT, R.S.C. 1970, Chap. N-1, and did thereby commit an offence contrary to Section 423(1)(d) of the CRIMINAL CODE, R.S.C. 1970, Chap. C-34.

The Crown announced at the beginning of the hearing that it intended to prove that the accused conspired to import heroin. In the course of the trial, it became clear that the imported drug by which the Crown intended to prove a major element of the alleged conspiracy was not heroin but cocaine. The Crown was permitted to lead evidence of the importation of cocaine. The trial judge, however, did not depart from the view he had expressed early in the case that the Crown would be required to prove a conspiracy to import heroin. On this basis, one of the accused, Rooke, took the stand and testified that while he had been involved in conspiracies to import other drugs, he had not been involved in a conspiracy to import heroin in the manner alleged.

After the addresses to the jury by counsel, the question was raised of whether the judge should charge the jury that they could convict the accused in the absence of proof that they conspired to import heroin, and that it was sufficient to support a conviction that the jury be satisfied that the accused had conspired to import a narcotic of any kind. The trial judge so charged, and the jury convicted the accused.

The Court of Appeal set aside the convictions and directed a new trial on the ground that the Crown, having charged the accused with conspiracy to import heroin, must prove that the conspiracy in fact related to heroin and no other drug: (1987), 1987 CanLII 2674 (BC CA), 14 B.C.L.R. (2d) 313, 58 C.R. (3d) 83, 35 C.C.C. (3d) 385. The Crown appeals from this decision.

I am of the view that the appeal must be dismissed. It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, 1986 CanLII 72 (SCC), [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial": R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, at p. 13.

Crown counsel suggests that the import of the decision of the Court of Appeal is that the Crown will necessarily fail in every case if it cannot prove that the conspiracy related to a particular narcotic, as opposed to any prohibited narcotic. I cannot accept that suggestion. I agree with Crown counsel that the gravamen of the offence is conspiracy to import a narcotic, rather than a particular kind of narcotic. The purpose of specifying the narcotic in a case such as this is to identify the transaction which is the basis of the alleged conspiracy. The fundamental requirement that the charge must provide sufficient particulars to reasonably permit the accused to identify the specific transaction may be met in a variety of ways. Where the Crown has evidence of the particular drug involved, this may properly be required to be provided as a particular identifying the transaction. But where the Crown is uncertain as to the particular drug which was the subject of the conspiracy, it may properly decline to give particulars of the drug. The charge may nevertheless stand, provided that it sufficiently clearly identifies the alleged conspiracy in some other way. There must be a new trial in this case, not because a conviction for conspiracy to import a narcotic cannot be supported without proof of the type of narcotic involved, but rather because the Crown chose in this case to particularize the drug involved and failed to prove the conspiracy thus particularized.

The Crown requested that this Court amend the charge to delete the particularization of the drug involved as heroin, so as to conform to the trial judge's direction and the jury's conviction. No such amendment was requested at trial or before the Court of Appeal. The trial proceeded on the basis that for the Crown to succeed it must prove a conspiracy relating to heroin. One of the accused took the stand and testified on this basis. It would be unfair and prejudicial to the accused after that course of events to permit an amendment fundamentally and retroactively changing the nature of what the Crown must prove. For these reasons, it would be inappropriate to grant the amendment sought.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: John C. Tait, Ottawa.

Solicitors for the respondent Rooke: Bolton & Muldoon, Vancouver.

Solicitors for the respondent De Vries: Greenspan, Rosenberg, Toronto.

• Reasons delivered May 17, 1990.