2012 NBCA 4, 2012 NBCA 4

COURT OF APPEAL OF NEW BRUNSWICK 17-11-CA CHARLES W. PLEASANCE APPELLANT CHARLES W. PLEASANCE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Pleasance v. R., 2012 NBCA 4 Pleasance c.

R., 2012 NBCA 4 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: October 25, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 25 octobre 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 283 – (Unreported) 2010 NBQB 352 – (Unreported) 2010 NBQB 420 – (Unreported) Décision frappée d’appel : 2010 NBBR 283 – (Inédite) 2010 NBBR 352 – (Inédite) 2010 NBBR 420 – (Inédite) Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 23, 2011 Appel entendu : Le 23 septembre 2011 Judgment rendered: January 26, 2012 Jugement rendu : Le 26 janvier 2012

Counsel at hearing: For the appellant: Hazen Brien For the respondent: Monica McQueen Avocats à l’audience : Pour l’appelant : Hazen Brien Pour l’intimée : Monica McQueen THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The following is the judgment delivered by THE COURT [ 1 ] The appellant appeals against his conviction by a judge of the Court of Queen’s Bench on October 25, 2010, of conspiracy to traffic in cocaine in violation of s. 465(1) (

c) of the Criminal Code . [ 2 ] Of the five grounds of appeal raised by the appellant, three concern findings of fact and inferences made by the trial judge, to whom deference is owed. Such findings are protected from appellate review unless they are the product of palpable and overriding error, ( see R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 18 ).

We are of the view the trial judge made no errors with respect to the facts and inferences to be drawn; however, in the event there were any such errors, none are palpable and overriding. [ 3 ] The remaining two bases upon which the appellant challenges the decision in the Court below are as follows: […] The learned trial justice erred in law alone as to the requirement to render a conviction against the appellant upon the basis that the respondent has proven all the elements of the offence beyond a reasonable doubt when, as part of his decision, the learned trial justice ruled that the appellant was “probably” a member of the alleged conspiracy, thus expressing some doubt as to same. […] The learned trial justice erred in law alone when he relied upon the transcription of the alleged intercepted communications of the appellant […] as part of the evidence of the appellant’s role in an alleged conspiracy when no evidence was called at trial that proved beyond a reasonable doubt that the communications, both by audio or text messages, were in fact those of the appellant.

[4] With respect to the first ground, the judge’s reference to the fact the appellant was “probably” a member ofthe conspiracy is made within the context of applying what is known as the Carter test. In R. v. Carter, (SCC), [1982] 1S.C.R. 938, the Court set out the approach trial judges must take in determining whether evidence of a co-conspirator is admissibleagainst an accused. That test was recently summarized in the following terms in Black v.

R., 2010 NBCA 36, 360 N.B.R. (2d) 132: Essentially the Carter test holds that a trier of fact must apply a three-step process before considering a co-conspirator’s hearsaystatements in furtherance of the conspiracy as evidence against the accused. First, the trier of fact must decide, on the basis of all theadmissible evidence, whether the Crown has proven beyond a reasonable doubt that the alleged conspiracy existed. In the event the trierof fact concludes the Crown has failed to meet this burden, that ends the matter and the hearsay statements of alleged co-conspiratorscannot be considered.

Second, if satisfied as to the existence of the conspiracy, the trier of fact must then decide whether the Crown hasproven the accused was ‘probably’ a party to it. In deciding the issue of Mr.

Black’s probable membership in the conspiracy, the judgewas limited to a consideration of the evidence directly admissible against him. […] Third, if the trial judge is satisfied that both theaccused and the alleged co-conspirator were probably members of the conspiracy, then, and only then, can he or she consider the co-conspirator’s hearsay statements in furtherance of the conspiracy as evidence of the accused’s guilt with respect to the conspiracyoffences set out in the indictment. [para. 41] [5] Given that the trial judge’s use of the word “probably” was in relation to his analysis of the second step of theCarter test and not in determining the appellant’s guilt or innocence, this ground of appeal is without merit. [6] With respect to the second ground, the Supreme Court and this Court have oft-repeated that in a criminal trialit is unnecessary to prove each fact beyond a reasonable doubt.

Facts are established based upon relevance and rules of admissibility.Only the final conclusion of guilt need be proven beyond a reasonable doubt. See in this regard, R. v. Morin, (SCC),[1988] 2 S.C.R. 345, [1988] S.C.J. No. 80 (QL); R. v. Arp, (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82 (QL), atparas. 64-66; R. v. White, (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57 (QL), at para. 39; L.C.M. v. R., 2011 NBCA14, 368 N.B.R. (2d) 194; R. v. Sutton (1999), (NB CA), 222 N.B.R. (2d) 78, [1999] N.B.J. No. 540 at para. 21(C.A.) (QL), aff’d 2000 SCC 50, [2000] 2 S.C.R. 595.

The appellant is incorrect when he asserts a fact in issue must be proved beyond areasonable doubt prior to its admission. This ground of appeal is also without merit. [7] The appeal is dismissed. ___________________________________ J.T. ROBERTSON, J.A. ___________________________________ J.C. MARC RICHARD, J.A. ___________________________________ B. RICHARD BELL, J.A.