R. v. Parsons, 2017 NLCA 64

Robert Parsons (appellant) v. Her Majesty the Queen (respondent) (15/87) Indexed As: R. v. Parsons 2017 NLCA 64 2 C.A.N.L.R. 294 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh and Hoegg JJ.A. November 8, 2017

Summary: The appellant, Mr. Parsons was convicted of conspiracy to traffic in cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and section 465(1) (

c) of the Criminal Code and sentenced to twenty-five months imprisonment. He appealed both conviction and sentence. The conviction appeal engaged issues regarding delay under

section 11 (

b) of the Canadian Charter of Rights and Freedoms , unreasonable verdict, the law of conspiracy, and search of a dwelling-house upon the consent of a cohabitant. The focus of the sentence appeal was the trial judge’s rejection of a conditional sentence. Held: Conviction appeal dismissed, sentence appeal allowed. Welsh J.A. (Green C.J.N.L. and Hoegg J.A. concurring): Mr. Parsons did not raise the issue of unreasonable delay under

section 11 (

b) of the Charter during his trial or before his conviction. Leave of the Court is required where an appellant raises a new issue on appeal. Exercise of the discretion to grant leave will be guided by balancing the interests of justice as they affect all the parties. Factors that may be relevant to the analysis include the reasons for failure to raise the issue at trial and whether the record is deficient. The burden is on the appellant to persuade the Court that, in light of all the circumstances, it should exercise its discretion to hear and decide a Charter issue raised for the first time on appeal. In this case, there is no basis on which to grant leave to raise the

section 11(

b) issue at first instance on appeal. Mr. Parsons did not provide a persuasive reason for his failure to raise the

section 11(

b) issue at trial. He was represented by counsel. There was an analytical framework in place, though different from the current framework. His trial was completed and a conviction entered a year prior to release of the Supreme Court of Court Canada decision R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631 . The record is deficient and the Crown would be prejudiced by a lack of factual foundation for the purpose of allocating portions of the delay in the post- Jordan

section 11(

b) analysis. Pre- Jordan delay should be considered in the context of the law in place at the time and the totality of the delay in this case occurred a year before Jordan was released. Finally, on the facts, no broader administration of justice interest is engaged. The test to be applied in determining whether a verdict or judgment of a trial judge is unreasonable is whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.

On the basis of all the evidence, the trial judge was satisfied beyond a reasonable doubt that the only reasonable inference to be drawn was that Mr. Parsons conspired with Mr. Lundrigan to traffic in cocaine. The judge was alive to the applicable legal principles and the verdict is consistent with the facts as found. The verdict was not unreasonable. The judge did not err in finding that Mr. Parsons was a member of a conspiracy to traffic cocaine. The trial judge undertook assessment of the evidence as a whole in concluding that the offence was proven beyond a reasonable doubt.

He recognized and applied the appropriate analytical framework and the necessary legal principles. He first determined that there was an agreement to traffic in cocaine. Second, there was sufficient evidence to establish on a balance of probabilities that the accused was a member of the conspiracy. The trial judge was then entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt.

Although Mr. Parsons submits that he was not a party to the conspiracy to import drugs from British Columbia, the Crown was notrequired to prove that Mr. Parsons was directly involved in arranging for the package of cocaine to be shipped to this Province. It wasnecessary only to prove that he was a participant in the global conspiracy to traffic in cocaine.

In a conspiracy of this type, involvingactivity in two provinces, it could be assumed that each member of the conspiracy would not necessarily know the entire membership.Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a commonplan can be inferred and the requisite mental state has been established. Mr. Parsons submits that his girlfriend, Ms. Jennings, who resided with him at the time police searched his residence and permittedpolice to enter, could not give permission for the search on his behalf, and therefore his

section 8 Charter rights were violated. The nature of the living arrangements may affect the reasonable expectation of privacy. In the case of joint residents, the question is notwhether one resident can waive the constitutional rights of another. Rather, the question is what, if any, impact the fact of joint residencyhas on one’s expectations of privacy, assessed in the totality of circumstances. The inquiry is two-staged: (

a) would the accusedreasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (

b) if so, did theco-resident actually consent? The trial judge determined that Ms. Jennings had authority to give permission for the search and that her consent was both informed andvoluntary. There is no basis on which to conclude that the judge erred in dismissing Mr. Parsons’ application under

section 8 of theCharter. The appeal against conviction was therefore dismissed. In his appeal against sentence, Mr. Parsons requested a reduction from twenty-five months imprisonment to two years less a day to beserved conditionally. In determining the sentence, the trial judge considered that the cocaine was of high quality with a street value of over $30,000, and thatMr. Parsons was not a drug user, but participated in the conspiracy for commercial gain.

He proceeded on the basis that penitentiaryterms are the norm for this type of offence and that imprisonment would better achieve the sentencing objective of deterrence. Asreferenced by the trial judge, this Court has emphasized that general deterrence is a paramount consideration in cases involvingconspiracy to traffic in cocaine, with rehabilitation being a secondary consideration. However, that proposition does not foreclose a focuson rehabilitation where the circumstances warrant. This is such a case.

In the circumstances, the trial judge erred in principle by focusing on the general deterrence purpose of sentencing to the exclusion ofrehabilitation in the particular circumstances of this offender; and, in applying the principle of parity, by failing to distinguish thecircumstances of Mr. Parsons from those of his co-accused, who had a prior conviction for trafficking and did not accept responsibilityfor his conduct. Accordingly, the appeal against sentence was allowed and the sentence was varied by substituting a sentence of twoyears less a day, to be served conditionally. Cases cited: R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 R. v. Aisthorpe, 2006 NLCA 40, 257 Nfld. & P.E.I.R. 1 R. v. Vidulich (1989), (BC CA), 37 B.C.L.R. (2d) 391 (BCCA) Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 R. v. Cody, 2017 SCC 31 R. v. Morin, (SCC), [1992] 1 S.C.R. 771 R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 R. v. Carter, (SCC), [1982] 1 S.C.R. 938 R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 R. v. J.F., 2013 SCC 21, 1 S.C.R. 565

R. v. Reeves , 2017 ONCA 365 R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 R. v. Bennett , 2017 NLCA 41 R. v. Kane , 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 Counsel: Adam J. Crocker, for the appellant; Rachel Furey, for the respondent. This appeal was heard on June 12, 2017 before Green C.J.N.L., Welsh and Hoegg JJ.A.

The following judgment was delivered on November 8, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] On July 15, 2015, Robert Parsons was convicted of conspiracy to traffic in cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and section 465(1) (

c) of the Criminal Code . He was sentenced to twenty-five months imprisonment. Both the conviction and sentence are under appeal. [ 2 ] The conviction appeal engages issues regarding delay under

section 11(

b) of the Canadian Charter of Rights and Freedoms , unreasonable verdict, the law of conspiracy, and search of a dwelling-house upon the consent of a cohabitant. The focus of the sentence appeal is the trial judge’s rejection of a conditional sentence. BACKGROUND [ 3 ] Mr. Parsons was charged jointly with Jason Lundrigan with conspiracy to traffic in cocaine. On October 7, 2010, the RCMP took possession, from Canada Post, of a package found to contain 305.4 grams of cocaine which was 73 percent pure. The police replaced the cocaine with another substance and added a silent electronic alarm and a tracking device.

On October 13, 2010, the package was delivered to the residence of S. Duke who passed the package to Mr. Lundrigan. As set out by the trial judge (2015 NLTD(G) 99 (the “conviction decision”)): [2] … The parcel was next located, using the tracking equipment, inside a warehouse just west of Corner Brook. It sat there most of the afternoon. It was removed from the warehouse at 4:20 p.m. Two cars were observed leaving the warehouse at that time and the electronic tracking showed the parcel was in motion. The electronic monitoring equipment next picked up the signal when the parcel was inside the residence of Mr.

Parsons around 6:30 p.m. … [ 4 ] At 6:43 p.m. the police observed Mr. Parsons leaving his residence carrying a camping-type cooler chest which he placed in the trunk of a car. The police obtained identification information from Mr. Parsons and asked him to re-open the trunk. He complied when the officers produced a general warrant. The package that replaced the cocaine was found in the cooler and Mr. Parsons was arrested and taken to police cells. [ 5 ] At about the same time, Ms. Jennings, who cohabited with Mr. Parsons at the time, came out of the apartment.

She was detained by the police, and she and an officer returned to the apartment. Ms. Jennings was arrested for possession of cocaine and given the appropriate cautions and rights. She elected not to contact a lawyer. Ms. Jennings gave a statement to the police saying she was not involved in any illegal drug transactions and was not aware of any illegal drugs in the apartment. The trial judge explained in his decision regarding Mr. Parsons’ application under

section 8 of the Charter (2014 NLTD(G) 11 (the “ Charter decision”)): [9] … After giving the statement, Ms. Jennings was asked if she would consent to police conducting a search of the apartment. She was told by police that they were looking for drugs, money and documents and that they could obtain a search warrant if necessary. Both officers testified that they expected a search warrant would have been authorized by a judge, had it been necessary to seek such judicial authorization. [ 6 ] Ms.

Jennings gave her verbal consent to the search, but the officers did not proceed until she had signed a Consent to Search form ( Charter decision): [11] When a police officer returned to the apartment with the blank form, Ms. Jennings reviewed the document. She asked questions

before filling in some of the blank spaces, and ultimately signed the form at 8:43 p.m. I accept the evidence of Cst. Moran and Cst.Mollon that Ms. Jennings was calm and rational at that time. [7] Ms. Jennings told the police she was in a relationship with Mr. Parsons and that they had shared occupancy of and expenses forthe apartment since April 2010.

Weigh scales and $4,520 in cash were found in the apartment. [8] The trial judge concluded (conviction decision): [38] Based on the evidence presented in court the only rational inference and conclusion to be drawn is that there was a conspiracy totraffic in cocaine and that Mr. Lundrigan and Mr. Parsons were members of that conspiracy. … ISSUES [9] This appeal raises issues regarding:

(1) Delay under

section 11(

b) of the Charter;

(2) Unreasonable verdict;

(3) Participation in a conspiracy;

(4) Search of a dwelling-house upon consent of a cohabitant; and

(5) Varying the sentence. ANALYSIS Delay –

Section 11(

b) of the Charter [10]

Section 11(

b) of the Charter provides: Any person charged with an offence has the right … (

b) to be tried within a reasonable time; New Issue Raised on Appeal [11] Mr. Parsons did not raise the issue of unreasonable delay under

section 11 (

b) of the Charter during his trial or before hisconviction on July 15, 2015. That conviction was entered a year before the decision was released in R. v. Jordan, 2016 SCC 27, [2016]1 S.C.R. 631, which set out a revised analytical framework under

section 11(

b) and on which Mr. Parsons now relies. The Crownobjects to Mr. Parsons raising the

section 11(

b) issue at first instance on this appeal. Leave to Appeal [12] Leave of the Court is required where an appellant raises a new issue on appeal (R. v. Aisthorpe, 2006 NLCA 40, 257 Nfld. &P.E.I.R. 1, at paragraph 36). Exercise of the discretion to grant leave “will be guided by balancing the interests of justice as they affectall the parties” (Aisthorpe, at paragraph 37). In Aisthorpe, at paragraph 37, Rowe J.A., for the Court, quoted from the decision in R. v.Vidulich (1989), (BC CA), 37 B.C.L.R. (2d) 391 (BCCA): “An accused must put forward his defences at trial.

If he decides at that time, as a matter of tactics or for some other reason, not to putforward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has putforward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence. “The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that aninjustice has been done, that a new ground is likely to be permitted to be raised on appeal.

Such a new ground is more likely to bepermitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial. And in my opinion, the fact that the new ground is a ground about constitutionality does not make the exercise of the court’s discretiondepend on any different factors than where the new ground is a point about the

interpretation or application of legislation. … [13] Factors that may be relevant to the analysis include the reasons for failure to raise the issue at trial and whether the record isdeficient because the necessary factual foundation to determine the issue is lacking. [14] In the context of raising a constitutional issue at first instance on appeal in Guindon v.

Canada, 2015 SCC 41, [2015] 3 S.C.R. 3,Rothstein and Cromwell JJ., for the majority, explained: [20] … Whether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for theCourt’s discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance ofhaving the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice.

The Supreme Court of Canada applies a “stringent” test, and the “discretion is not exercised routinely or lightly” (Guindon, at paragraph22). [15] Further in Guindon:

[23] The burden is on the appellant to persuade the Court that, in light of all the circumstances, it should exercise its discretion to hearand decide the issue. There is no assumption of an absence of prejudice. The Court’s discretion to hear and decide new issues shouldonly be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties. [16] In the appeal before this Court, I accept the Crown’s submission, with examples, that the record is insufficient in order to allocateportions of the delay for purposes of the

section 11(

b) analysis. Had the issue been raised in a timely manner at trial, relevant evidencecould have been led. [17] Mr. Parsons submits, as a reason for the failure to raise

section 11(

b) at trial, that the pre-Jordan analytical framework wasunpredictable. That is not a persuasive rationale. If Mr. Parsons considered that his right to trial without delay had been breached, it wasopen to him to make submissions based on the law in force at the time of his trial. In R. v. Cody, 2017 SCC 31, discussed below, theCourt, in fact, reviewed the role to be played by the pre-Jordan law where a matter was in the system at the time Jordan was released.

That situation engages a “transitional exceptional circumstance”, referenced in Jordan and further explained in Cody. [18] In Cody, by applying the pre-Jordan analysis set out in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, the trial judgehad determined that the charges should be stayed based on a breach of

section 11(

b) of the Charter. Regarding the interplay between thepre and post-Jordan analytical frameworks, in Cody, the Court explained: [68] Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the factthat the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time”(Jordan, at paras 96-97).

The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case hastaken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 90).

Put another way, theCrown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonablegiven its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice wouldhave been assessed under Morin. [69] To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. … The determinationof whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must beundertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96and 98).

Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay wasunreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays,which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800).

For cases currently in the system, theseconsiderations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96). [19] In transitional exception cases, the Court emphasized the importance of weighing all the relevant factors which may include “theparties’ general level of diligence” (Cody, at paragraph 70). The Court concluded: [71] When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings tookplace before or after Jordan was released.

For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors thatwere relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordanwas released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para.96). [20] It is clear from the discussions in Jordan and Cody that the Court was not endorsing a new right or extending an existing rightsuch as may happen in the development of the common law.

Rather, a new analytical framework for assessing the question of delayunder

section 11(

b) of the Charter was adopted. [21] Applying the above principles, I conclude that there is no basis on which to grant leave to raise the

section 11(

b) issue at firstinstance on appeal. Mr. Parsons did not provide a persuasive reason for his failure to raise the

section 11(

b) issue at trial. He wasrepresented by counsel. There was an analytical framework in place, though different from the current framework. His trial wascompleted and a conviction entered a year prior to release of the Jordan decision. I accept the Crown’s submission that the record isdeficient and that the Crown would be prejudiced by a lack of factual foundation for the purpose of allocating portions of the delay in thepost-Jordan

section 11(

b) analysis. The conclusion in Cody that pre-Jordan delay should be considered in the context of the law in placeat the time applies to the totality of the delay in this case, all of which occurred a year before Jordan was released. Finally, on the facts,no broader administration of justice interest is engaged. [22] In the circumstances, I would deny leave to raise the

section 11(

b) issue at first instance in this appeal. Unreasonable Verdict [23] The test to be applied in determining whether a verdict or judgment of a trial judge is unreasonable is “whether the verdict is onethat a properly instructed jury acting judicially, could reasonably have rendered” (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, atparagraph 36). In Biniaris, Arbour J., for the Court, explained: [36] … That formulation of the test imports both an objective assessment and, to some extent, a subjective one.

It requires the appealcourt to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review,analyse and, within the limits of appellate disadvantage, weigh the evidence. … [37] … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in theanalysis that led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside averdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered averdict inconsistent with the factual conclusions reached. … [24] In this case, the trial judge summarized facts upon which he drew inferences (conviction decision):

[36] Dealing next with Mr. Parsons, the established facts from the evidence which assist me in drawing inferences about what he didand what he knew, include: - He had possession of the parcel at 6:30 p.m.; - He had frequent communication with Mr. Lundrigan on delivery, prior to his arrest and during the week before his arrest; - Between October 4, 2010 and October 13, 2010 there were 33 contacts (either text or phone calls) between his phone and phonesseized from Mr.

Lundrigan with five of the contacts on October 13; - He had Sheldon Duke’s name and address on a post-it note attached to his fridge; - A bundle of cash ($4,520) in small denominations and digital weigh scales were found in his home; - He made no inquiry on learning that Mr. Lundrigan was “Bien (sic) followed”; and - He concealed the parcel in the cooler, and then inside his car trunk, revealing it only after production of a warrant. [25] In addition, the trial judge accepted that the package had been left in a warehouse which was placed under surveillance.

Mr.Lundrigan’s truck and a small car were seen driving to the rear of the warehouse out of view. Moments later “the tracking equipmentdetected movement of the parcel, and moments after that the surveillance officers observed the two vehicles leaving the area.” Theofficers followed the truck, but not the car. “At 4:38 p.m. Mr. Lundrigan forwarded a text message to Mr. Parsons “Bien (sic) followed”(conviction decision, at paragraph 16). The package was next detected in Mr. Parsons’ apartment.

Further, on the evidence, the judgefound that the quantity and quality of the cocaine were consistent with trafficking. [26] On the basis of all the evidence, the trial judge drew inferences leading to the conclusion that Mr. Parsons conspired with Mr.Lundrigan to traffic in cocaine. Mr. Parsons submits that the evidence is equally consistent with an innocent friendship in which he didnot know the contents of the package. This submission amounts to asking this Court to reconsider the evidence and draw differentfactual conclusions. That is not the function of this Court.

The trial judge reviewed the evidence and was satisfied beyond a reasonabledoubt that the only reasonable inference to be drawn was that Mr. Parsons conspired with Mr. Lundrigan to traffic in cocaine. [27] A review of the factual determinations in the trial judge’s decision leads to the conclusion that the verdict was one that “areasonable jury, properly instructed, could judicially have arrived at” (Biniaris, at paragraph 36). The judge was alive to the applicablelegal principles and the verdict is consistent with the facts as found. [28] Accordingly, subject to the discussion below regarding Mr.

Parsons’ participation in the conspiracy, there is no basis on which toset aside the verdict on the basis that it is unreasonable. Participation in the Conspiracy [29] Section 465(1)(

c) of the Criminal Code provides: Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: ... (

c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (

a) or (

b) is guilty of anindictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, beliable; … [30] The trial judge summarized his analysis of the facts and inferences relevant to the conviction for conspiracy (convictiondecision): [37] The “Bien (sic) followed” text of October 13 from Mr. Lundrigan and the one letter reply from Mr. Parsons, “k”, creates thelogical inference that both were working together based on prior agreement and that the police presence was a mutual concern. Thecolloquial affirmative response “k” allows me to infer that Mr.

Parsons knew Mr. Lundrigan was involved with the parcel. A bundle ofcash ($4,520) in small denominations and the digital weigh scales found in Mr. Parsons’ home are consistent with participation incocaine-trafficking activity. The post-it note with Sheldon Duke’s name and address allows me to infer that he had knowledge of thedifferent participants in the agreement. His concealment of the parcel in the cooler, and then inside his car trunk, creates a logicalinference (in the context of all other evidence) that he was aware of the parcel’s original contents.

When the police asked him to openthe trunk he responded by requesting a warrant. From the exchange of communication, and all other evidence, I infer that Mr. Parsonsand Mr. Lundrigan were acting in concert and that Mr. Parsons was a consenting member of the conspiracy. I reject the argument ofdefence counsel that the evidence “is at least as consistent with Mr. Parsons being simply an intended purchaser of cocaine.” Based onthe purity level of the cocaine seized, and the quantity, the only rational conclusion is that it was intended for trafficking. The opinionevidence of Cst.

Emberly, which I accept, is that “due to the availability of the drug there is no need for a user to purchase large amountsat once.” As stated above, the quantity was several years supply for the typical infrequent user after cutting to reduce purity. [38] Based on the evidence presented in court the only rational inference and conclusion to be drawn is that there was a conspiracy totraffic in cocaine and that Mr. Lundrigan and Mr. Parsons were members of that conspiracy. They unlawfully conspired with personsknown and unknown to traffic in cocaine.

The Crown has met the burden of proof beyond a reasonable doubt. [31] In reaching this conclusion, the trial judge referred to the analytical approach set out in R. v. Carter, (SCC),[1982] 1 S.C.R. 938. McIntyre J., for the Court, summarized, at page 947: … In charging the jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied

beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged withparticipation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must thenreview the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised thathe was a member of the conspiracy.

If this conclusion is reached, they then become entitled to apply [the] hearsay exception andconsider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracyas evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy thejury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty. … (Emphasis added.) [32] The principles set out in Carter were discussed and affirmed in R. v.

Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at paragraphs 8to 31. McLachlin C.J.C., for the majority, wrote: [8] The co-conspirators’ exception to the hearsay rule may be stated as follows: “Statements made by a person engaged in an unlawfulconspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy wasongoing and were made towards the accomplishment of the common object” (J. Sopinka, S.N. Lederman and A.W. Brant, The Law ofEvidence in Canada (2nd. ed. 1999), at p. 303).

Following Carter, co-conspirators’ statements will be admissible against the accusedonly if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissibleagainst the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy. [33] While the trial judge did not undertake the analysis by referencing each stage of the Carter inquiry, he did, in fact, recognize thatCarter set out the appropriate analytical framework. Further, it is clear from his decision that he applied the necessary legal principles.

He first determined that there was an agreement to traffic in cocaine. Regarding this stage of the inquiry, after setting out relevantevidence, the judge concluded: [33] The fact that the parcel originated in British Columbia creates the logical inference that at least two people agreed to traffic incocaine, one in British Columbia and one in Newfoundland and Labrador. One does not surrender over $30,000 worth of cocaine intothe mail system without a prior mutual understanding, an agreement, detailing the arrangements. Mr.

Lundrigan was part of thisagreement because he was expecting the parcel, and because he is the one who requested [that] Mr. Duke serve as initial mail recipient. Mr. Duke was the intended initial recipient, as identified on the parcel, and he passed the parcel over to Mr. Lundrigan unopenedpursuant to terms previously agreed upon. [34] The second stage of the Carter analysis is satisfied by the evidence as to the activities of Mr. Lundrigan and Mr. Parsons as thepackage was transported from Mr. Duke to Mr. Lundrigan, then to the warehouse, and finally to Mr. Parsons’ apartment, and then to thetrunk of his car.

This evidence, obtained by use of the tracking device the police had inserted into the package, was sufficient toestablish on a balance of probabilities that the accused was a member of the conspiracy. [35] Having satisfied the first two components of the Carter analysis, the trial judge was “entitled to apply [the] hearsay exceptionand consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of theconspiracy as evidence against the accused on the issue of his guilt” (Carter, at page 947, paragraph 31, above).

However, the hearsayexception was not argued on the facts of this case. Therefore, the third component of the Carter analysis was not engaged. The trialjudge undertook assessment of the evidence as a whole in concluding that the offence was proven beyond a reasonable doubt. [36] Finally, Mr. Parsons submits that, in any event, he was not a party to the conspiracy to import drugs from British Columbia. Infact, the Crown was not required to prove that Mr. Parsons was directly involved in arranging for the package of cocaine to be shipped tothis Province.

It was necessary only to prove that he was a participant in the global conspiracy to traffic in cocaine. In a conspiracy ofthis type, involving activity in two provinces, it could be assumed that each member of the conspiracy would not necessarily know theentire membership. This consideration is discussed in R. v. J.F., 2013 SCC 21, 1 S.C.R. 565, where Moldaver J., for the Court,explained: [54] Furthermore, it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission ofthe unlawful object.

Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each hasagreed should be committed: R. v. Genser (1986), (MB CA), 39 Man. R. (2d) 203 (C.A.), aff’d (SCC),[1987] 2 S.C.R. 685. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long asagreement to a common plan can be inferred and the requisite mental state has been established. [37] In the result, after summarizing the evidence, the trial judge concluded that the only rational inference to be drawn was that Mr.Lundrigan and Mr.

Parsons were members of a conspiracy to traffic in cocaine. (See paragraph 30, above.) The judge was satisfied thatthe Crown had met the burden of proof beyond a reasonable doubt. [38] There is no basis on which to conclude that the trial judge erred in the application of the relevant legal principles to the particularfact situation in concluding that Mr. Parsons was a member of the conspiracy to traffic in cocaine.

Section 8 of the Charter – Consent to Search the Apartment [39]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. [40] The issue in this case arises from the facts that Mr. Parsons was cohabiting with Ms. Jennings and it was she who gave the policepermission to search the apartment. Mr. Parsons submits that she could not give permission for the search on his behalf. [41] The decision in R. v. Reeves, 2017 ONCA 365, provides a useful analysis of the scope of and limitations on permission to searcha residence where the permission is given by a cohabitant. LaForme J.A., for the Court, wrote:

[46] …In the case of joint residents, the question is not whether one resident can waive the constitutional rights of another. Of course they cannot. Rather, the question is what, if any, impact the fact of joint residency has on one’s expectations of privacy, assessed in the totality of circumstances. [47] In Search and Seizure Law in Canada (loose-leaf), vol. 1 (Toronto: Thomson Reuters, 2016), Hutchison et al. write, at 7-12.7 to 15, [i]n order to determine who may consent to a search, the guiding principle must be the ‘reasonable expectation of privacy’ referred to by the Supreme Court in Hunter v.

Southam Inc. If an individual would not reasonably expect another person to be able to authorize a search, then that person cannot consent to a search. [ 42 ] Drawing a distinction between shared and private areas of a residence, LaForme J.A. recognized that the nature of the living arrangements may affect the reasonable expectation of privacy. He continued: [50] Therefore, in my view, the inquiry is two-staged: (

a) would the accused reasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (

b) if so, did the co-resident actually consent? Of course, the specific facts and circumstances will drive the answer to both of those questions. [51] Before moving on, two final notes about consent. First, an accused does not reasonably expect the police to be able to enter without the valid, voluntary and informed consent of a co-resident. Nor does an accused reasonably expect police to go beyond the scope of consent provided by the co-resident in entering the space. … [ 43 ] In this case, the trial judge found ( Charter decision): [13] Ms. Jennings was a co-occupant and had authority over the premises.

She was a tenant and the only person named on the lease. Ms. Jennings shared all areas of the apartment in common with Mr. Parsons. … [21] Ms. Jennings gave a search consent in the context of knowing that Mr. Parsons had just been arrested in relation to suspected drug activity; knowing that she had just been arrested in relation to the same activity; knowing that the purpose of the search was for drugs, documents and cash; knowing she had the right to withhold her consent; and knowing she had the right to insist on a warrant.

She gave her consent voluntarily with knowledge that anything found could be used as evidence of a criminal, federal or provincial offence. … [ 44 ] In addition, the police waited to conduct the search until after Ms. Jennings consented in writing, which occurred after some time had passed so that she had an opportunity to reconsider her position before granting permission for the search. Ms. Jennings maintained her innocence throughout and had an interest in being forthright and cooperative with the police. [ 45 ] In the result, the trial judge determined that Ms.

Jennings had authority to give permission for the search and that her consent was both informed and voluntary. There is no basis on which to conclude that the judge erred in dismissing Mr. Parsons’ application under

section 8 of the Charter . The Sentence [ 46 ] In his appeal against sentence, Mr. Parsons requests a reduction from twenty-five months imprisonment to two years less a day to be served conditionally. Regarding the option of a conditional sentence, it is helpful to begin with some basic principles summarized in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 . Lamer C.J.C., for the Court, concluded: [127] At this point, a short

summary of what has been said in these reasons might be useful: 1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. 2. … Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest should be the norm, not the exception. … 5. As a corollary of the purposive

interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. … 8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. 9.

Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community. 10. … [A] conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of

lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. [ 47 ] Mr. Parsons submits that, in rejecting a conditional sentence, the trial judge made errors in principle particularly by failing to give proper consideration to relevant factors, that the errors had an impact on the sentence, and that it is open to this Court on appeal to vary the sentence from time to be served in prison to a conditional sentence.

In addition to the principles discussed in Proulx , he relies on the decision in R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , in which Wagner J., for the majority, explained: [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. [ 48 ] In determining the sentence, the trial judge considered that the cocaine was of high quality with a street value of over $30,000, and that Mr.

Parsons was not a drug user, but participated in the conspiracy for commercial gain. Regarding Mr. Parsons’ circumstances, the judge wrote (2015 NLTD(G) 180 (the “sentencing decision”)): [14] Mr.

Parsons is 33 years old; he had a positive family situation and positive home environment while growing up; he graduated from high school with honors in 2000; he served with the Canadian Armed Forces for two years following high school; he began post- secondary studies with College of the North Atlantic in 2008; he graduated with an Electronic Engineering Technology Diploma in 2011; he has worked full time since 2011; he is currently employed as an Electronic Technician II with Schlumberger Canada in Alberta (commuting back and forth every few weeks); he has a supportive common-law partner and supportive parents. [15] The [pre-sentence report] states that his participation in this drug trafficking conspiracy was “an outlier incident in an otherwise non-criminal life”, and that he has good prospects for rehabilitation.

His risk of re-offending, based on the Level of Service/Case Management Inventory assessment tool, is approximately one percent. This low risk for recidivism, his five-year post-arrest track record, and other positive factors mentioned in the [pre-sentence report], would indicate that there is little concern here regarding protection of the public. Positive letters of reference from a family friend and from Mr. Parsons’ supervisor at Schlumberger (entered by consent) are consistent with the positive [pre-sentence report]. … [ 49 ] Mr.

Parsons stated at the interview for the pre-sentence report and at the sentencing hearing that he took full responsibility for his actions. He acknowledged that he had made a “bad choice” by participating in the conspiracy. His situation must be distinguished from that of Mr. Lundrigan who had a prior conviction for trafficking and, in contrast to Mr. Parsons, did not take responsibility for his criminal conduct. [ 50 ] Regarding the circumstances of the offence, the trial judge considered the significant quantity, purity and value of the cocaine.

However, he accepted that “there was no evidence of any degree of sophistication or high level organization in the activity; there was no evidence that either Offender was a significant player within a hierarchy of co-conspirators” (sentencing decision, at paragraph 20). [ 51 ] As to legal principles, the trial judge noted that, at the time of the offence, a conditional sentence was available. ( See: R. v. Bennett , 2017 NLCA 41 , at paragraph 52 .) He undertook a review of case law, particularly where a conditional sentence had been imposed for trafficking in cocaine. Mr.

Parsons submits that the trial judge erred in principle by distinguishing those cases largely on the basis that the offender had pleaded guilty. The trial judge wrote that “a significant difference was that the offenders in those cases accepted responsibility and pled guilty”, and that that “did not occur with Messrs. Parsons and Lundrigan” (sentencing decision, at paragraph 39). While a guilty plea may be a mitigating factor in sentencing, it is not a pre-condition to a conditional sentence. Although Mr. Parsons did not enter a guilty plea, upon conviction he took responsibility for his actions, unlike Mr.

Lundrigan. In addition, Mr. Parsons submits that the trial judge erred in principle by overemphasizing deterrence to the exclusion of his very positive prospects for rehabilitation. [ 52 ] In addressing the requirements for a conditional sentence, the trial judge was satisfied that the safety of the community would not be endangered. However, in ordering a term of imprisonment, he proceeded on the basis that “penitentiary terms are the norm” for this type of offence and that imprisonment would “better achieve the sentencing objective of deterrence” (sentencing decision, at paragraph 35).

He considered that a conditional sentence “which typically allows continued employment (and even mobility for employment), may better achieve the restorative objective of rehabilitation but that is a secondary objective here” (sentencing decision, at paragraph 35). [ 53 ] As referenced by the trial judge, this Court has emphasized that general deterrence is a paramount consideration in cases involving conspiracy to traffic in cocaine, with rehabilitation being a secondary consideration. (See , for example, R. v.

Kane , 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 .) However, that proposition does not foreclose a focus on rehabilitation where the circumstances warrant. This is such a case. [ 54 ] As set out at paragraph 48, above, after his arrest, Mr. Parsons took steps to become a contributing member of society through further education and regular employment. During the five years between his arrest and sentencing, he continued on this path and was not involved in further criminal activity.

As stated in the pre-sentence report, this offence was “an outlier incident in an otherwise non- criminal life”. [ 55 ] In the circumstances, and applying the principles set out in Proulx , I am satisfied that the trial judge erred in principle by focusing on the general deterrence purpose of sentencing to the exclusion of rehabilitation in the particular circumstances of this offender; and, in applying the principle of parity, by failing to distinguish the circumstances of Mr. Parsons from those of Mr.

Lundrigan, who had a prior conviction for trafficking and did not accept responsibility for his conduct. [ 56 ] In the circumstances, I would vary the sentence imposed by the trial judge by substituting a sentence of two years less a day, to be served conditionally. This result is not inconsistent with this Court’s determination that general deterrence is a paramount consideration in cases involving conspiracy to traffic in cocaine, with rehabilitation being a secondary consideration.

The particular circumstances here are such that the sentencing principles of general deterrence and rehabilitation are best achieved by means of a lengthy conditional sentence with appropriate conditions.

[ 57 ] Accordingly, I would allow the appeal against sentence and vary the sentence imposed by the trial judge by substituting a sentence of two years less a day, to be served conditionally upon the following conditions: Mr. Parsons shall: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so; 3. Report to a supervisor within two working days after this order is made, and thereafter when required by the supervisor and in the manner directed by the supervisor; 4.

Remain within the jurisdiction of the court unless prior written permission to go outside that jurisdiction is obtained from the supervisor; 5. Notify the supervisor of his current address and employment status; 6. Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation; 7.

Remain within his residence or on the property attached to the residence except for: a. attendance at his place of employment for purposes of employment only between the hours of 6:00 a.m. and 7:00 p.m., and traveling to and from his place of employment by direct route; b. one hour each day during daylight hours at a regular time approved by the supervisor for exercise, shopping or carrying out personal business; c. attendance at medical or dental appointments; d. attendance at church or other religious or spiritual ceremony or activity approved by the supervisor; e. attendance at appointments or activities approved by the supervisor for the purpose of Mr.

Parsons’ rehabilitation; 8. Present himself at the door personally when required by a police officer or the supervisor; 9. Not possess or consume drugs except in accordance with a medical prescription; 10. Attend and participate in any treatment, educational, assessment or counselling programs directed by the supervisor; 11. Obtain the prior written permission of the supervisor to attend to any unforeseen circumstances, with limits to be set by the supervisor for the particular occasion or circumstance; and 12.

Complete 50 hours of community service at the direction of his supervisor. [ 58 ] In addition, I would order Mr. Parsons to be on probation for one year, conditions 1, 2, 3, 4, 5, 6, 9 and 10 as set out in the above order shall apply.

SUMMARY [ 59 ] In

summary,

(1) I would deny leave to raise the delay issue under

section 11(

b) of the Charter at first instance in this appeal; (2) there is no basis on which to set aside the verdict on the basis that it is unreasonable; (3) the trial judge did not err in convicting Mr. Parsons of conspiracy to traffic in cocaine; and (4) the trial judge did not err in dismissing Mr. Parsons’ application under

section 8 of the Charter . [ 60 ] Nonetheless, the trial judge erred in his assessment of Mr. Parsons’ request for a conditional sentence. In the result, the sentence is varied by substituting a sentence of two years less a day to be served conditionally. [ 61 ] Accordingly, I would dismiss the appeal against conviction, but allow the appeal as to sentence by varying the sentence as set out in paragraph 57, above. I would vary the period of probation, as set out in paragraph 58, by reducing it to one year given Mr. Parsons’ compliance with the requirements of his lengthy supervision while on judicial interim release. Appeal against conviction dismissed. Appeal against sentence allowed .