R. v. Brake, 2022 NLCA 10

Dennis Brake (appellant) v. Her Majesty the Queen(respondent) (20/14) Indexed As: R. v. Brake 2022 NLCA 10 7 C.A.N.L.R. 301 Court of Appeal of Newfoundland and Labrador Hoegg, Goodridge and Butler JJ.A. February 15, 2022

Summary: Dennis Brake was arrested in the parking lot of the Irving gas station near Goobies, NL shortly after meeting up with a target of a policeinvestigation regarding trafficking of drugs. The trial judge was satisfied that Mr. Brake met with the target of the police investigation sothat the cocaine could be transferred into Mr. Brake’s possession. Mr. Brake was convicted of possession of cocaine for the purposes oftrafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act. Mr.

Brake appealed the conviction, arguing that the trialjudge erred by offending the Carter rule, by misapplying the law of circumstantial evidence, by finding that Mr. Brake was in possessionof the cocaine, and by reversing the burden of proof. Held: Appeal dismissed. Hoegg J.A. (Goodridge and Butler JJ.A. concurring): The judge did not err by offending the Carter rule, which governs whether hearsayevidence respecting a co-conspirator’s role in a crime can be considered in relation to another accused.

The evidence provided by policeregarding the target of the initial police investigation was direct evidence, provided by eyewitnesses, and was not hearsay. Accordingly,the judge did not err in failing to adhere to the Carter rule (paragraphs 6-13). The judge did not err by misapplying the law of circumstantial evidence. He correctly stated the governing principle that a conclusion ofguilt from circumstantial evidence requires that guilt be the only reasonable conclusion permitted by the evidence.

The judge’sinferences of fact were open to him to draw, and he did not err in failing to consider other conceivable inferences consistent with Mr.Brake’s innocence (paragraphs 14-26). The judge did not err in concluding that Mr. Brake was in possession of the cocaine at the time of his arrest. It was open to the judge toinfer from the cumulative effect of the evidence and the circumstances: that the target of the police investigation would not haveretrieved the valuable brick of cocaine from the trunk of his vehicle and placed it at Mr. Brake’s feet moments later without Mr.

Brake’sknowledge that he was there to retrieve the cocaine; that Mr. Brake had a measure of control over the cocaine; and that Mr. Brakeconsented to taking possession of the cocaine (paragraphs 27-34). The judge did not err by shifting the burden of proof to Mr. Brake. The judge used rhetorical questions and answers in his reasoning as away of explaining how he reached the conclusion that Mr. Brake was in possession of the cocaine and that he did not have a reasonabledoubt about Mr. Brake’s guilt (paragraph 35). Cases cited: R. v. Carter, (SCC), [1982] 1 S.C.R. 938 R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 R. v. Phelan, 2013 NLCA 33, Nfld. & P.E.I.R. 64

R. v. M.L., 2019 NLCA 33, 4 C.A.N.L.R. 448 R. v. Barrow, (SCC), [1987] 2 S.C.R. 694 R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 R. v. Badgerow, 2014 ONCA 272 R. v. Tran, 2014 BCCA 343 R. v. Mota (1979), (ON CA), 46 C.C.C. (2d) 273, 8 C.R. (3d) 270 (Ont. C.A.) R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 R. v. Brake, 2019 NLCA 20, 4 C.A.N.L.R. 274 R. v. Pham, (ON CA), [2005] O.J. No. 5127, 77 O.R. (3d) 401 (Ont. C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940 R. v. Wall, 2012 NLCA 67, 329 Nfld. & P.E.I.R. 104 R. v.

Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514 R. v. Fredericks, [1999] O.J. No. 5549, 1999 CarswellOnt 5081 (Ont. C.A.) R. v. Bains, 2015 ONCA 677 Statutes considered: Controlled Drugs and Substances Act, SC 1996, c. 19, sections 2(1), 5(2) Criminal Code, sections 4(3), 686(1)(a)(i), 686(1)(a)(ii) Counsel: Stephen P. Orr, for the appellant; David Schermbrucker, for the respondent. The appeal was heard on November 10, 2021 before Hoegg, Goodridge and Butler JJ.A.

The following judgment was filed on February 15, 2022 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] Dennis Brake was convicted of possessing cocaine for the purposes of trafficking pursuant to section 5(2) of the ControlledDrugs and Substances Act, SC 1996, c. 19. He appeals his conviction, alleging that the trial Judge made legal errors in his handling ofthe case, and requests this Court to allow his appeal and acquit him of the charge or order a new trial. BACKGROUND [2] The Judge’s

summary of the facts, found at pages 387 to 396 of the transcript of his oral decision, is accepted by both parties. ISSUES [3] Mr. Brake alleges that the Judge made four errors, of which any one justifies allowing his appeal. First, he argues that theJudge offended the Carter rule, established in R. v. Carter, (SCC), [1982] 1 S.C.R. 938, by using evidence of a thirdparty’s actions in furtherance of a joint agreement without first establishing that he and the third party had an agreement respectingpossession of the cocaine. Second, Mr. Brake argues that the Judge misapplied the law of circumstantial evidence in his treatment of the

trial evidence. Third, Mr. Brake says that the Judge erred in finding that he was in possession of the cocaine. Fourth, Mr. Brake arguesthat the Judge reversed the burden of proof by effectively requiring him to disprove that he was not in possession of the cocaine. Whether these four allegations were errors are the issues on appeal. ANALYSIS Standard of Review [4] The errors Mr. Brake alleges respecting misapplication of the Carter principle and the law of circumstantial evidence, andreversing the burden of proof, raise errors of law which are reviewable by this Court on the standard of correctness (R. v.

Shepherd, 2009SCC 35, [2009] 2 S.C.R. 527, at para. 18, and R. v. Phelan, 2013 NLCA 33, Nfld. & P.E.I.R. 64, at para. 14). The allegation that theJudge erred in finding that Mr. Brake was in possession of the cocaine is an error of mixed fact and law, which is reviewable on thestandard of palpable and overriding error (R. v. M.L., 2019 NLCA 33, 4 C.A.N.L.R. 448, at para. 19).

To the extent that the Judge’sfindings of fact and inferences drawn from the facts are in issue, the standard of review is palpable and overriding error (Phelan, at para.14), unless the Judge applied the wrong law, or misapplied the right law, in which case the error would be one of law. [5] Mr. Brake’s appeal is based on allegations of error. Accordingly, it falls under section 686(1)(a)(ii) of the Criminal Code. Mr.Brake suggested that the law respecting unreasonable verdict plays a role in his appeal to this Court. This suggestion must be rejected.

An appeal based on unreasonable verdict is taken under section 686(1)(a)(

i) of the Code, and involves different principles and law thanwhat he argued. Did the Judge err by offending the Carter rule? [6] The Carter rule governs whether hearsay evidence respecting a co-conspirator’s role in a crime can be considered in relation toanother accused. The rule requires the trier of fact to ensure certain criteria are met before considering such hearsay evidence in relationto the other accused. The trier of fact must first determine that there is a conspiracy, and that the other accused is actually a member ofthe conspiracy.

If those two criteria are met, then hearsay evidence respecting the acts and declarations of the co-conspirator done infurtherance of the object of the conspiracy can be considered as evidence against the other accused (Carter, at 946-947, and R. v.Barrow, (SCC), [1987] 2 S.C.R. 694, at 740). The Carter rule originated in the context of legal co-conspirators.

However, it has evolved to apply to co-actors to an agreement without the strict requirement to find a legal conspiracy. [7] In this case the impugned hearsay evidence is from police officers who testified that they saw Darren Pittman obtain a brick ofcocaine on McNamara Drive in St. John’s and put it into the trunk of his car before immediately driving to the Irving gas station atGoobies. The evidence was that Mr. Pittman, driving a black Dodge Challenger, arrived at the gas station lot first. He parked his car. Mr. Brake, driving a blue Dodge Caravan, arrived at the lot a couple of minutes later. Mr.

Brake parked his vehicle, and immediatelywent over to Mr. Pittman’s car and got into the front passenger seat. Mr. Pittman then got out of his car and opened and closed thetrunk. He returned to his car and drove it around to the back of the gas station where some tractor trailers were parked. There he stoppedand got out of his vehicle, opened the trunk, then shut it and returned to his vehicle. He drove back to the front of the lot and parked. The police then intercepted the Pittman vehicle and found the brick of cocaine at the feet of Mr. Brake. [8] Mr. Brake contends that the evidence respecting Mr.

Pittman’s actions is hearsay evidence, and that the Judge erred by notfollowing the Carter criteria before considering it as evidence against Mr. Brake. [9] In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, the Supreme Court of Canada described hearsay: [1] Hearsay is an out-of-court statement tendered for the truth of its contents.

It is presumptively inadmissible because – in theabsence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact toassess its truth. … [10] Hearsay generally concerns spoken words, but it can also include non-verbal communication, like gestures and nods, which areintended by the declarant to be meaningful communication. This was explained by Strathy J.A. in R. v. Badgerow, 2014 ONCA 272, atparas. 106-109. [11] The evidence which Mr.

Brake says is hearsay is neither evidence of out-of-court statements nor non-verbal communicationtendered for the truth of its contents. The evidence respecting Mr. Pittman is evidence of his actions; it is direct evidence, provided byeyewitnesses, for the purpose of showing the provenance of the cocaine and how it got to Mr. Brake’s feet. The officers who testified tothese events were in court and were cross-examined on their observations of Mr. Pittman’s actions. In short, the evidence which Mr.Brake contends is hearsay is not hearsay. [12] In this regard, see R. v.

Tran, 2014 BCCA 343, wherein the court rejected the appellant’s contention that evidence respecting theconduct of his co-conspirator was inadmissible hearsay: [90] The appellant’s argument discloses a lack of understanding of what constitutes hearsay. It fails to appreciate that the co-conspirator exception [the Carter rule] does not apply to all acts of a co-conspirator, but only those acts intended to communicate amessage. See also, R. v. Mota (1979), (ON CA), 46 C.C.C. (2d) 273, 8 C.R. (3d) 270 (Ont.

C.A.). [13] In this case, the Carter rule did not apply to the Judge’s handling of the direct evidence respecting Mr. Pittman’s actions. Accordingly, he did not err in failing to adhere to it. Did the Judge misapply the law of circumstantial evidence?

[14] Much of the evidence in this case, including the evidence bearing on the ultimate issue, was circumstantial. Mr. Brake allegesthat the Judge made two errors in his treatment of it. First, he argues that the Judge drew inferences from the circumstantial evidencewhich were not open to him to draw, and second, he argues that the Judge failed to consider other available inferences from the evidencewhich were consistent with his innocence. [15] The specific inferences which Mr. Brake maintains were not open to the Judge to draw are that: 1. Mr.

Pittman drove to Goobies after receiving the brick of cocaine from Mr. Brophy in St. John’s; 2. Mr. Brake had an arranged meeting with Mr. Pittman at Goobies; 3. Mr. Pittman retrieved the brick of cocaine from the trunk of his car when he drove behind the tractor trailers and that he gave itto Mr. Brake when he returned to the driver’s seat of the car; and 4. Mr. Brake was given the cocaine and not allowed to look in the bag or make inquiries of Mr.

Pittman respecting it. [16] The Judge correctly stated the governing principle that drawing a conclusion of guilt from circumstantial evidence requires thatguilt must be the only reasonable conclusion permitted by the evidence. He said that while other conclusions can arise from the evidenceor from the absence of evidence, those conclusions must be reasonable, based on logic, common sense, and human experience. [17] The Judge’s conclusion that Mr. Pittman drove to Goobies after receiving the brick of cocaine was based on the direct anduncontradicted evidence of officers.

It was not inferred from circumstantial evidence. [18] The Judge’s inference that Mr. Brake’s meeting with Mr. Pittman was prearranged was drawn from the uncontradicted evidencethat Mr. Brake drove onto the Goobies Irving parking lot, parked his vehicle near Mr. Pittman’s, walked directly over to Mr. Pittman’scar, and got into it. There was also evidence that a short time before Mr. Brake arrived at Goobies, his cell phone pinged off the Goobiescell tower, indicating to police that he was in the same area as Mr. Pittman (police had a warrant to track Mr. Brake’s cell phone).

Giventhese circumstances, including the precise timing of their encounter, pre-arrangement was a logical and common sense inference to drawfrom the evidence. Likewise, the Judge’s inference that the brick of cocaine was placed at Mr. Brake’s feet after Mr. Pittman returnedfrom opening the trunk of his car behind the tractor trailers was a logical and common sense inference to draw from the evidence. Officers had seen Mr.

Pittman put the brick of cocaine into the trunk of his car and followed his car to Goobies so closely that he couldnot have stopped and moved the cocaine from the trunk to the front seat of the car. Moreover, Mr. Pittman was seen checking his trunkon the lot and returning to his vehicle empty handed, and then subsequently observed opening and closing his trunk when he was behindthe tractor trailers and then returning to his vehicle and driving onto the open lot. Although no one saw Mr.

Pittman’s upper body whenhe was behind the tractor trailers, the Judge’s inference that he retrieved the cocaine from the trunk and gave it to Mr. Brake after he(Mr. Pittman) returned from opening his trunk behind the tractor trailers was reasonable. [19] Mr. Brake’s allegation that he was not allowed to look into the bag is difficult to understand. The Judge did not suggest that Mr.Brake was not allowed to look into the bag. The fact that Mr. Brake was not seen to have done so does not mean that he was not allowedto do so or that he did not know what was in it.

In any event, there was no evidence suggesting that Mr. Brake was not allowed to lookinto the bag. [20] In the result, the inferences the judge drew from the evidence were open to him to draw. [21] Mr. Brake also argues that the Judge failed to consider inferences from the circumstantial evidence which were consistent withMr. Brake’s innocence. [22] The general rule respecting the ultimate determination in a case based on circumstantial evidence, is that, all things considered, inorder to convict, the trier of fact must be satisfied that guilt is the only reasonable conclusion available on the evidence.

Application ofthis principle does not mean that the trier of fact has to totally exclude other conceivable inferences from the evidence or to disproveevery conjecture. This was explained by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000: [55] …Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially,could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence: Yebes,at p. 186; R. v. Mars (2006), (ON CA), 205 C.C.C. (3d) 376 (Ont.

C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95, 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R., 2003 ABCA 148 ; R. v. Cardinal (1990), 1990 ABCA 115 , 106A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, [2014 ABCA 328,] at para. 22. Thecourt noted that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is notunreasonable simply because "the alternatives do not raise a doubt" in the jury's mind.

Most importantly, "[i]t is still fundamentally forthe trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt." [23] In this case, the Judge found that the only reasonable inference from the evidence was that: Mr. Brake was at the gas station to get the drugs from Mr. Pittman, and given where drugs were found, that he had already done so… and that … [Mr. Brake] knew why he was there and what he had just received, and that the drugs had been surrendered to him, eitherpermanently or temporarily, by Mr. Pittman. The fact that the drugs were still in Mr.

Pittman’s car does not negate the fact that Mr.Brake was or could be in possession of the drugs … (Transcript, at 409-410).

[24] Mr. Brake appears to be suggesting that Mr. Pittman placed the cocaine brick at Mr. Brake’s feet for convenience or some otherreason, and that these possibilities ought to have caused the Judge to have a reasonable doubt that Mr. Brake was in possession of it. [25] Mr. Brake did not testify, and there was no other evidence suggesting how the cocaine got to Mr. Brake’s feet by another meansat a different time, or for a different reason. Given that Mr. Pittman put the cocaine into his trunk and drove with it there to Goobies,along with Mr. Brake’s purposive and immediate entry into Mr.

Pittman’s car and their drive behind the tractor trailers, and Mr. Brake’simpending alightment from Mr. Pittman’s car when the police intercepted them, the Judge’s satisfaction that Mr. Brake’s guilt was theonly reasonable conclusion on the evidence cannot be said to violate the law respecting circumstantial evidence. [26] In

summary, the Judge’s inferences of fact were open to him to draw, and he did not err in failing to consider other conceivableinferences for the cocaine being found at Mr. Brake’s feet. Did the Judge err in concluding that Mr. Brake was in possession of the cocaine? [27] Mr.

Brake was the sole accused charged with possessing cocaine for the purposes of trafficking in this case. [28] Section 4(3) of the Criminal Code, applicable by virtue of section 2(1) of the Controlled Drugs and Substances Act stipulates thatpossession can be personal, constructive, or joint. [29] The Supreme Court of Canada addressed what is required to establish possession in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R.253, at paras. 15-17. The Court stated that knowledge and some measure of control are required to establish possession. This Court, in R.v.

Brake, 2019 NLCA 20, 4 C.A.N.L.R. 274, explained that joint possession requires proof of knowledge, some measure of control, andalso consent (paras. 26-28). (See also R. v. Pham, (ON CA), [2005] O.J. No. 5127, 77 O.R. (3d) 401, at paras. 15-16(Ont. C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940, and R. v. Wall, 2012 NLCA 67, 329 Nfld. & P.E.I.R. 104, at para. 12.) [30] Mr. Brake argues that he cannot be found in possession of the cocaine simply because he was a passenger in Mr. Pittman’s car. As Fish J. remarked in R. v.

Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, the proposition that “mere presence at the scene of a crimedoes not prove culpable participation in its commission” is “entirely sound” (para. 3). Accordingly, Mr. Brake’s simple presence in thelocation of the cocaine would not mean that he was in possession of it, personally or otherwise. However, the evidence in this caseestablishes that Mr. Brake was not “simply present” in Mr. Pittman’s car when the cocaine was found at his feet. [31] Mr. Brake was known to know Mr. Pittman. He was found to have purposely entered Mr.

Pittman’s car within moments of hisarrival at the Goobies Irving Station, where Mr. Pittman, who arrived minutes before, was parked on the lot. While Mr. Brake was inthe car with Mr. Pittman, Mr. Pittman got out of his car and checked his trunk, and then got back into it and drove behind tractor trailersparked on the lot, where he was seen to have gotten out of his car, opened and closed the trunk and re-entered his car, before drivingback to the open lot where he parked. Police then intervened and found Mr. Brake with the passenger door ajar, and the brick of cocainein a plastic bag at his feet.

All of this transpired within three minutes. In addition, the uncontradicted evidence was that the value of thebrick of cocaine was between $ 45,000 and $ 70,000, depending on how it was sold (Transcript, at 257-258, 266). Mr. Brake did nottestify, so there was no evidence from him, or anyone else, respecting his knowledge, control of or consent to the presence of cocaine athis feet. [32] The Judge found that Mr. Brake knew the cocaine was at his feet and consented to it being there, and that he had a measure ofcontrol over it, in that he voluntarily met Mr.

Pittman at Goobies and immediately got into his car, was there when Mr. Pittman waschecking his trunk and also when he was behind the tractor trailers retrieving the cocaine from the trunk, and appeared about to alightfrom the Pittman vehicle when police intercepted and found the cocaine at his feet. The Judge was also alive to the value of the cocaineand that those who possess it would treat it very carefully while in the presence of others and otherwise (Transcript, at p. 395). In regardto the above circumstances, I refer to the reasoning of the Ontario Court of Appeal in R. v. Fredericks, [1999] O.J.

No. 5549, 1999CarswellOnt 5081, and R. v. Bains, 2015 ONCA 677. In Fredericks, the trial judge inferred knowledge and control on the basis that athird party would not have left very valuable heroin and significant cash with the accused alone in his apartment unless the accused wereknowledgeable and had some measure of control over it.

In Bains, the same court ruled that it was open to a trier of fact to infer anaccused’s knowledge of the contraband substance found in his presence where the substance is of significant value, and that it wasreasonable to infer that a very valuable quantity of drugs would not be entrusted to anyone who did not know the nature and contents ofthe bag (which in Bains was found under a car seat). [33] Accordingly, it was open to the Judge to infer from the cumulative effect of all of the evidence and circumstances, that Mr.Pittman would not be retrieving a very valuable brick of cocaine from the trunk of his car and it being found at Mr.

Brake’s feetmoments later without Mr. Brake’s knowledge that the cocaine was at his feet, that he had a measure of control over it being put there,and that he consented to it being there. [34] In the result, the Judge’s conclusion that Mr. Brake was in possession of the brick of cocaine cannot be said to be in error. Did the Judge reverse the onus of proof? [35] As part of his reasoning, the Judge asked and then answered several questions pertaining to the evidence and legal issues. Mr.Brake argues that the Judge’s rhetorical questions show that he put the burden on Mr.

Brake to disprove his possession of the cocaine,thereby effectively reversing the burden of proof. I do not agree. The Judge’s use of rhetorical questions and answers in his reasoningwas his way of explaining how he reached his conclusion that Mr. Brake was actually in possession of the cocaine. He posed a question,and then answered it by reference to the evidence and considering competing inferences which did not make sense to him. This wassimply the Judge’s way of illustrating how and why he did not have a reasonable doubt about Mr. Brake’s guilt. In so doing, he did notshift the burden of proof to Mr. Brake.

DISPOSITION [36] In the result, Mr. Brake has not shown that the Judge erred in his handling of Mr. Brake’s case.

[ 37 ] Accordingly, I would dismiss the appeal. Appeal dismissed.