R. v. Pearson, [1998] 3 S.C.R. 620

Edwin Pearson Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Pearson

File No.: 24107.

Hearing and judgment: December 9, 1998.

Reasons delivered: December 17, 1998.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Appeals ‑‑ Powers of courts of appeal ‑‑ Accused convicted of trafficking in narcotics following jury trial ‑‑ Court of Appeal ordering new trial limited to issue of entrapment ‑‑ Whether Court of Appeal had jurisdiction to make order for limited new trial ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(8).

The accused was convicted by a jury of trafficking in narcotics. At his trial, his motion for a stay of proceedings based on entrapment was dismissed after a hearing on the issue. The Court of Appeal allowed the accused’s appeal in part and ordered a new trial limited to the issue of entrapment on the basis that the Crown had failed to disclose information which could have been relevant to that issue. The accused appealed to this Court.

Held: The appeal should be dismissed.

Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: Entrapment is completely separate from the issue of guilt or innocence. It is concerned with the conduct of the police and the Crown and is dealt with at a separate proceeding from the trial on the merits. Once the accused is found guilty of the offence, the accused alone bears the burden of establishing that the conduct of the Crown and/or the police amounted to an abuse of process deserving of a stay of proceedings. Since entrapment is not related to the innocence of the accused but to the faulty conduct of the state, it does not bring into play the presumption of innocence. Under s. 686(8) of the Criminal Code, a court of appeal has the power to make an ancillary order limiting the scope of a new trial under s. 686(2) when “justice requires” such an order. In light of the unique nature of an entrapment proceeding after a verdict of guilty, s. 686(8) provides broad enough statutory authority on which to rest the direction by an appeal court of an entrapment proceeding. A new trial limited to the issue of entrapment cannot be said to be at direct variance with a court of appeal’s judgment. Similarly, an order limiting a new trial to the issue of entrapment does not contravene the principle that a “new trial” under s. 686 means a full new trial since entrapment allegations lead to a two‑stage trial in which the two stages are autonomous. The result of an order limiting a new trial to entrapment is thus an order for a full hearing on that issue. Consequently, a court of appeal finding errors in the trial judge’s ruling on entrapment has jurisdiction to limit a new trial to that sole issue. While in most successful appeals against conviction, the court of appeal which quashes the conviction will also overturn the finding of guilt, the latter is not a legally necessary consequence of the former. Under s. 686(8), the court of appeal retains the jurisdiction to make an “additional order” to the effect that, although the formal order of conviction is quashed, the verdict of guilt is affirmed, and the new trial is to be limited to the post-verdict entrapment motion.

Per L’Heureux‑Dubé, Gonthier and McLachlin JJ.: For the reasons given by the minority in Thomas and Warsing, the Court of Appeal had jurisdiction to order a limited new trial on the issue of entrapment under ss. 686(2) and 686(8) of the Criminal Code. A new trial limited to the question of entrapment is consistent on the facts of this case with what “justice requires”.

Cases Cited

By Lamer C.J. and Major J.

Distinguished: R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579; referred to: R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; R. v. Laverty (1990), 1990 CanLII 176 (BC CA), 80 C.R. (3d) 231; R. v. Barnes (1990), 1990 CanLII 534 (BC CA), 54 C.C.C. (3d) 368, aff’d 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449; R. v. Maxwell (1990), 1990 CanLII 6693 (ON CA), 61 C.C.C. (3d) 289.

By L’Heureux‑Dubé J.

Referred to: R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579; R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms.

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) [am. c. 27 (1st Supp.), s. 145; 1991, c. 43, s. 9 (Sch., item 8)], (2), (4) [am. c. 27 (1st Supp.), s. 145], (8).

Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 4(3).

APPEAL from a judgment of the Quebec Court of Appeal (1994), 1994 CanLII 5433 (QC CA), 89 C.C.C. (3d) 535, 60 Q.A.C. 103, [1994] Q.J. No. 66 (QL), allowing in part the accused’s appeal and ordering a new trial limited to the issue of entrapment. Appeal dismissed.

Gérald Danis, for the appellant.

Bernard Laprade and Caroline Alarie, for the respondent.

The judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

//The Chief Justice and Major J.//

[1] The Chief Justice and Major J. -- This appeal raises a similar issue to that which this Court was asked to consider in R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535, and R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, released with this judgment: does a court of appeal have jurisdiction, by virtue of its power to make additional orders under s. 686(8) of the Criminal Code, R.S.C., 1985, c. C-46, to order a new trial limited to a specific issue? The appellant, Mr. Pearson, is challenging a decision of the Quebec Court of Appeal to allow his appeal in part and order a new trial limited to the issue of entrapment: (1994), 1994 CanLII 5433 (QC CA), 89 C.C.C. (3d) 535. It is contended, amongst other things, that the Court of Appeal did not have the power to issue such an order.

[2] The appellant was convicted by a jury of four counts of trafficking in narcotics contrary to s. 4(3) of the Narcotic Control Act, R.S.C., 1985, c. N-1. During the course of the trial, the appellant brought a motion for a stay of proceedings based on entrapment. This motion was dismissed by the trial judge after a hearing on the issue.

[3] On appeal to the Quebec Court of Appeal, the appellant raised 26 grounds to overturn his conviction. Fish J.A., for the court, allowed the appeal in part, ordering a new trial limited to the issue of entrapment, on the basis that the Crown had failed to disclose information (a police informant’s notes) which could have been relevant to the appellant’s case on entrapment. Fish J.A. considered this information to be relevant only to the issue of entrapment, ruling that it had no bearing on the accused’s liability on the charges as such. A second trial was held before Boilard J. of the Superior Court. Once again, the appellant’s motion for a stay of proceedings based on entrapment was dismissed. Pearson appealed that judgment to the Court of Appeal. That appeal is still pending.

The Legislation

[4] The relevant portions of s. 686 of the Criminal Code state:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(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,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or

(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

Power of a Court of Appeal to Order a New Trial Limited to the Issue of Entrapment

[5] In R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, this Court recognized entrapment as an issue that could in the proper circumstances be raised by an accused following a finding of guilt to stay the proceedings against him prior to the entering of a formal order of conviction.

[6] Entrapment is a unique area of the criminal law. In our view, it has been somewhat inappropriately referred to as an affirmative defence. In our opinion, that misdescribes it.

[7] It is, in fact, completely separate from the issue of guilt or innocence as is reflected by the fact that it is dealt with at a separate proceeding from the trial on the merits, as directed by Mack and implemented in this appeal.

[8] A claim of entrapment is in reality a motion for a stay of proceedings based on the accused’s allegation of an abuse of process. It does not rely on the underlying charge and does not affect the admissibility of any evidence which might influence the jury on the merits.

[9] In particular, unlike a claim of not criminally responsible on account of mental disorder which was the issue raised in Warsing, entrapment does not go to or involve mens rea or “criminal responsibility” in any way.

[10] That entrapment is not a conventional avenue of defence is clear from the circumstances under which it is raised. It arises after a fair trial has found the accused guilty.

[11] Entrapment concerns the conduct of the police and the Crown. The question to be answered is not whether the accused is guilty, but whether his guilt was uncovered in a manner that shocks the conscience and offends the principle of decency and fair play.

[12] One of the most important distinguishing features of entrapment is that it does not bring into play the presumption of innocence. Unlike other defence protections, entrapment is not related to the innocence of the accused but to the faulty conduct of the state. Once the accused is found guilty of the offence, the accused alone bears the burden of establishing that the conduct of the Crown and/or the police amounted to an abuse of process deserving of a stay of proceedings, a standard this Court has held will arise only in the clearest of cases: see Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, and R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Given that concerns about protecting the presumption of innocence do not arise in the case of entrapment, this case is quite unlike the situation in Thomas.

[13] In such circumstances, it is unnecessary and wasteful to reopen the issue of the appellant’s guilt or innocence on the substantive charges in a new trial. Such a result is not mandated by any fundamental right protected by the Canadian Charter of Rights and Freedoms. Under s. 686(8) of the Criminal Code of Canada, a court of appeal has the power to make an ancillary order limiting the scope of a new trial under s. 686(2) when “justice requires” that order. In our view, given the unique nature of an entrapment proceeding after a verdict of guilty, s. 686(8) provides broad enough statutory authority on which to rest the direction by an appeal court of an entrapment proceeding.

[14] In both Thomas and in R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597, it was specifically stated that a court of appeal does not have the power to make an additional order which is at direct variance with the court’s underlying judgment. Given the fact that the entrapment hearing has no bearing on the accused’s guilt or innocence, and given that no error has been found in the finding of guilt, a new trial limited to the issue of entrapment cannot be said to be at direct variance with a court of appeal’s judgment.

[15] Similarly, given the nature of an entrapment hearing, the assertion made in Thomas that a “new trial” under s. 686 means a full new trial is not contravened. Entrapment allegations lead to a two-stage trial, in which the two stages are autonomous. Thus, the result of an order limiting a new trial to entrapment is an order for a full hearing on that issue. It could not possibly revive the issue of the accused’s guilt, an issue which has been conclusively decided in the first stage of the proceedings and which was not successfully attacked.

[16] A court of appeal which orders a new trial limited to the issue of entrapment exercises its statutory jurisdiction under s. 686 of the Criminal Code in the following manner: where an accused successfully impugns the finding of no entrapment at his or her first entrapment hearing, the court of appeal “allows an appeal against conviction”, in accordance with the wording of s. 686(1). Then, pursuant to s. 686(2), the court of appeal “quashes the conviction” and “orders a new trial”. However, the quashing of the formal order of conviction does not, without more, entail the quashing of the underlying verdict of guilt. In most successful appeals against conviction, the court of appeal which quashes the conviction will also overturn the finding of guilt; however, the latter is not a legally necessary consequence of the former. Under s. 686(8), the court of appeal retains the jurisdiction to make an “additional order” to the effect that, although the formal order of conviction is quashed, the verdict of guilt is affirmed, and the new trial is to be limited to the post-verdict entrapment motion.

[17] Consequently, a court of appeal finding errors in the trial judge’s ruling on entrapment has jurisdiction to limit a new trial to this sole issue. It should be stated that the reverse is not true, as the new trial ordered on the accused’s guilt or innocence will almost always have a direct effect on the entrapment hearing. It would not be advisable for a court of appeal to restrict a new trial to exclude the advancement of entrapment.

[18] The reasoning adopted here is similar to that adopted by Sopinka J. (dissenting) in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1019. He stated:

Notwithstanding error on the part of the trial judge, it does not follow that there need be a new trial. In view of the procedure required by R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, the substantive verdict of guilty rendered by the trial judge need not be disturbed, since the evidence relevant to a Mack application is not relevant to culpability: Mack, supra, at pp. 965, 972 and 975. In order to rectify the error and restore the appellant’s opportunity to make full answer and defence, it is only necessary to vacate the formal conviction and remit the matter to the trial judge for an evidentiary hearing on the issue of entrapment.

[19] In the same case, McLachlin J. (also dissenting) indicated she would also have directed a new hearing on the issue of entrapment had she not been convinced that the Crown’s conduct constituted an abuse of process which could not be rectified by a new trial.

[20] Similar orders were also issued by the British Columbia Court of Appeal in R. v. Laverty (1990), 1990 CanLII 176 (BC CA), 80 C.R. (3d) 231; additional unreported reasons delivered November 1, 1990 (Victoria Registry V00270), and R. v. Barnes (1990), 1990 CanLII 534 (BC CA), 54 C.C.C. (3d) 368, affirmed 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, and by the Ontario Court of Appeal in R. v. Maxwell (1990), 1990 CanLII 6693 (ON CA), 61 C.C.C. (3d) 289.

[21] It should also be mentioned that Parliament has not modified the process established in Mack, nor has Parliament provided appellate courts with specific powers to deal with the issue of entrapment. It is therefore open to the courts to rely on s. 686(8) to make orders on appeal dealing with that issue. Parliament retains the ability, if it wishes to do so, to amend the Criminal Code to enact otherwise.

[22] The appellant also raised several other grounds of appeal before this Court. Most of these grounds relate to violations of his Charter rights or to the trial judge’s instructions to the jury. Fish J.A.’s analysis of these issues is sound and we do not wish to add to it. The appellant also raised new grounds before us, submitting that the Court of Appeal ought not to have considered new evidence presented by the Crown (the informant’s notes referred to above). He also presented this Court with evidence discovered in the course of the second trial on entrapment, which is now pending on appeal before the Quebec Court of Appeal. This evidence mostly relates to the testimony of undercover RCMP officers that the appellant alleges are contradictory. These matters are more appropriately dealt with by the courts below and are irrelevant to our disposition. In any case, if new evidence is discovered that questions the validity of the convictions, the appellant may apply to have his case reopened on the basis of the new evidence.

[23] To conclude, the Court of Appeal’s decision is upheld. It respects the verdict of the jury while acknowledging that the accused may have benefited from the full disclosure of relevant information at the entrapment stage of the hearing. In the result, the appeal is dismissed and the decision of the Court of Appeal confirming the verdict and ordering a new hearing on the issue of entrapment is confirmed.

The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

[24] L’Heureux-Dubé J. -- At the oral hearing, this appeal was dismissed, reasons to follow. I agree with the opinion of the Chief Justice and Justice Major concerning all arguments raised by the appellant, except for those relating to entrapment. I find, as they do, that they are without merit.

[25] I would also reject the appellant’s arguments relating to entrapment, for the reasons I expressed in R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535, and R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, released concurrently. As I explained in those cases, it is clear that the Court of Appeal has the power to order a new trial limited to the question of entrapment under ss. 686(2) and 686(8) of the Criminal Code, R.S.C., 1985, c. C-46. I also emphasized in Warsing that there are many examples of this type of order in the jurisprudence (see para. 35).

[26] I believe that the procedure established for the issues of entrapment and not criminally responsible by reason of mental disorder, which was in question in Warsing, are largely similar. In fact, under the procedure adopted by this Court in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, the issue of entrapment is considered by the trier of fact only after it is determined beyond a reasonable doubt that the accused committed the acts charged. It is, therefore, a two-step procedure, where the determination of the accused’s guilt or innocence is distinct from the examination of the entrapment issue.

[27] For the same reasons I articulated in Thomas and Warsing, I believe that a new trial limited to the question of entrapment is consistent on the facts of this case with what “justice requires” as specified in s. 686(8) of the Criminal Code. The undisclosed evidence, the notes of the police informant, is only relevant to the issue of entrapment, and does not change in any way the jury’s conclusion that the accused committed the acts charged.

Appeal dismissed.

Solicitors for the appellant: Bourgeois & Danis, Lorraine.

Solicitor for the respondent: The Department of Justice, Ottawa.