R. v. Sutton, [2000] 2 S.C.R. 595

Kingsley Michael Sutton Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Sutton

Neutral citation: 2000 SCC 50.

File No.: 27666.

2000: October 6; 2000: November 9.

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

on appeal from the court of appeal for new brunswick

Criminal law – Charge to jury -- Misdirections -- Court of Appeal setting aside accused’s acquittal and ordering new trial -- Crown and defence agreeing that trial judge made errors in his formulation of test for determining admissibility of co-conspirator hearsay evidence -- Whether Crown established that verdict would not necessarily have been the same had errors not occurred.

The accused was acquitted of narcotics offences. On appeal, the Crown alleged errors in the trial judge’s direction to the jury concerning the admissibility of co-conspirator hearsay evidence. The Court of Appeal allowed the Crown’s appeal, set aside the acquittal and ordered a new trial.

Held: The appeal should be dismissed.

The parties agreed that two clear misdirections occurred in the trial judge’s formulation of the test for determining the admissibility of co-conspirator hearsay evidence. Either of the trial judge’s errors could have led to the accused’s acquittal. The Crown has established with reasonable certainty that, had the jury been properly charged, the verdict would not necessarily have been the same. Accordingly, the Court of Appeal’s order for a new trial should be confirmed.

Cases Cited

Referred to: Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599.

APPEAL from a judgment of the New Brunswick Court of Appeal (1999), 1999 CanLII 13127 (NB CA), 140 C.C.C. (3d) 336, 222 N.B.R. (2d) 78, [1999] N.B.J. No. 540 (QL), allowing the Crown’s appeal from the accused’s acquittal on charges of trafficking in cocaine and possession of the proceeds of crime, and ordering a new trial. Appeal dismissed.

Margaret Gallagher, for the appellant.

S. David Frankel, Q.C., and James C. Martin, for the respondent.

The judgment of the Court was delivered by

[1] The Chief Justice – This is an appeal as of right. The appellant was charged with trafficking in cocaine and possession of proceeds of trafficking. The Crown alleged that the appellant sold a prohibited drug to its undercover agent, Gulliver, through an intermediary, Merrick. The Crown’s case consisted of Gulliver’s testimony, tapes of conversations between Gulliver and Merrick, police surveillance of events and the bag of cocaine allegedly purchased by Gulliver. At the end of the trial, the jury acquitted the appellant. The Crown appealed, alleging errors in the trial judge’s direction to the jury. The Court of Appeal of New Brunswick, Rice J.A. dissenting, allowed the Crown’s appeal, set aside the acquittal and ordered a new trial: (1999), 1999 CanLII 13127 (NB CA), 222 N.B.R. (2d) 78. The appellant Sutton appeals that decision to this Court.

[2] The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty” (p. 374).

[3] The parties also agree that the trial judge made errors in his direction to the jury. More specifically, they agree that two clear misdirections occurred in his formulation of the test set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, for determining the admissibility of co-conspirator hearsay evidence, a test not challenged on this appeal. (The parties did not present argument on and the Court did not consider whether the Carter test may be affected by R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40 (released on September 29, 2000).)

[4] First, the parties agree that in articulating the initial stage of the Carter test, the trial judge wrongly directed the jury that they were restricted to “Gulliver’s evidence alone” in determining whether they were satisfied, beyond a reasonable doubt, that there was a conspiracy or common design to traffic cocaine. This eliminated from the jury’s consideration evidence that both parties agree was admissible on the point: the testimony of police officers detailing their surveillance and the bag of cocaine.

[5] Second, the parties agree that the trial judge directed the jury to apply the wrong standard of proof at the second stage of the Carter test. This stage involves a determination of whether, on the balance of probabilities, the appellant was a member of the common design. The trial judge clearly erred by informing the jury they had to be satisfied of the appellant’s membership beyond a reasonable doubt, failing which they were required to acquit him.

[6] In addition to these admitted errors, the Crown alleges that the trial judge erred in his caution to the jury respecting the credibility of the undercover agent Gulliver as an unsavoury witness (the Vetrovec warning). The appellant disagrees on this point.

[7] Leaving aside the disputed Vetrovec caution, which this Court recently reviewed in R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, the critical issue upon which the court below divided and the main ground upon which Rice J.A. based his dissent, was whether the admitted errors in charging the jury on the Carter test meet the threshold for vacating an acquittal as set out in Vézeau, supra. Has the Crown established with reasonable certainty that the jury, had it been charged correctly, would not necessarily have reached the same verdict? We are satisfied that the answer to this question must be yes.

[8] It is not disputed that had the jury been properly directed, they could have found, upon a consideration of all the relevant evidence and applying the proper standards of proof, that the Carter test was satisfied. In that case, the hearsay statements at issue, including the taped conversations implicating the appellant, would have been admissible against him, as properly falling within the co-conspirator exception to the hearsay rule. The errors in the trial judge’s charge may have unjustly frustrated such a conclusion. At the first stage of the test, the jury was effectively precluded from considering evidence that both parties agree was admissible in determining whether they were satisfied a conspiracy existed. At the second stage, the misdirection as to the appropriate standard of proof created the potential for the jury to reject the admissibility of the offered evidence on the grounds they were not satisfied of the appellant’s involvement in the common design to traffic cocaine beyond a reasonable doubt, even though they may have been satisfied of his involvement on the correct standard of probability. Either of these errors could have led to the appellant’s acquittal. Therefore, to use the language of Vézeau, supra, we can say with reasonable certainty that, had the jury been properly charged, the verdict would not necessarily have been the same.

[9] We would therefore dismiss the appeal and confirm the order for a new trial.

Appeal dismissed.

Solicitor for the appellant: Margaret Gallagher, Saint John.

Solicitor for the respondent: The Attorney General of Canada, Vancouver.