2015 NBCA 15, 2015 NBCA 15

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK LUC ROBERT CORNO APPELLANT 83-14-CA LUC ROBERT CORNO APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Corno v. R., 2015 NBCA 15 Corno c.

R., 2015 NBCA 15 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Richard CORAM : l’honorable juge en chef Drapeau l’honorable juge Deschênes l’honorable juge Richard Appeal from a decision of the Court of Queen’sBench: April 16, 2014 (conviction) May 27, 2014 (sentencing) Appel d’une décision de la Cour du Banc de laReine : le 16 avril 2014 (déclaration de culpabilité) le 27 mai 2014 (détermination de la peine) History of case: Decision under appeal: 2014 NBQB 103 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2014 NBQB 103 , 2014 NBBR 103 Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 12, 2015 Judgment rendered: February 12, 2015 Appel entendu : le 12 février 2015 Jugement rendu : le 12 février 2015 Counsel at hearing: For the appellant: Mikaël Henri Bernard For the respondent: Monica G. McQueen Avocats à l’audience : Pour l’appelant : Mikaël Henri Bernard Pour l’intimée : Monica G. McQueen THE COURT The application for leave to appeal conviction, on grounds that involve questions of fact or mixed law and fact, and the appeal from conviction on a ground that involves a question of law are dismissed.

LA COUR Sont rejetés la demande d’autorisation d’interjeter appel de la déclaration de culpabilité fondée sur des moyens soulevant des questions de fait ou des questions mixtes de droit et de fait, de même que l’appel de la déclaration de culpabilité fondé sur un moyen soulevant une question de droit.

The following is the judgment delivered by THE COURT (Orally) [1] In a decision dated April 16, 2014, reported at 2014 NBQB 103 , 418 N.B.R. (2d) 308 , a judge of the Court of Queen’s Bench convicted Luc Robert Corno of possession of cannabis (marijuana) for the purpose of trafficking, unlawfully producing that substance, possession of methamphetamine for the purpose of trafficking and possession of morphine, offences set out respectively in ss. 5(2), 7(1), 5(2) and 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The charges were laid following the execution of a search warrant on May 12, 2011,

during which were discovered a marijuana grow-operation and sufficient quantities of the other drugs to convince the trial judge their possession was for the purpose of trafficking. The judge eventually sentenced Mr. Corno to terms of imprisonment totaling 48 months and made appropriate corollary orders. Mr. Corno appeals his conviction on a ground raising a question of law and seeks leave to appeal on grounds that involve questions of fact or mixed law and fact. [2] Nine police officers testified at trial.

Eight of them had participated in the execution of the search warrant and the other was called as an expert witness. Mr. Corno did not testify, did not adduce any evidence and his counsel did not cross-examine any of the police officers except the expert witness. The trial judge accepted as credible the evidence of all officers and discounted any testimonial discrepancies. The main issue at trial was whether Mr. Corno had knowledge and control of the drugs and drug paraphernalia found at the property that was the subject of the search. If so, possession would be established. [3] Mr.

Corno argues the evidence of knowledge and control was purely circumstantial and that the trial judge “manifestly misapprehended the evidence, including but not limited to, her failure to consider other reasonable inferences which the evidence clearly established at trial”. He also alleges the “judge had [an] insufficient evidentiary foundation in order to support the inferences she made in finding the accused guilty”. These are questions of mixed law and fact for they require the application of the law to the established facts.

We find in the trial judge’s exemplary reasons for decision nothing that would justify interference with her inferences and factual conclusions. For this reason, we do not grant leave to appeal on these grounds. [4] The sole question of law raised by the grounds of appeal is whether the trial judge misdirected herself on the law as it pertains to the mens rea of possession versus the mens rea of possession for the purpose of trafficking. In our view, she did not.

As the Attorney General points out, “[i]n the absence of testimony from an accused in which he actually admits possession for the purpose of trafficking, the mens rea for this offence is always proven by circumstantial evidence”. In the present case, the trial judge found Mr. Corno was the grower of the marijuana plants and that he was in possession of the other drugs. She then applied the evidence of the expert witness regarding the nature of the equipment found on site, the amounts of drugs and the yield of the grow operation to find Mr. Corno possessed the substances for the purpose of trafficking.

We find no error in her approach. Mr. Corno’s contention that he might have only been in possession of drugs owned by someone else, who might have intended to traffic them, invites speculation and does not accord with the trial judge’s findings and inferences of fact, none of which are the product of any palpable and overriding error. [5] For these reasons, both Mr. Corno’s appeal and his application for leave to appeal are dismissed. ____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ___________________________________ ALEXANDRE DESCHÊNES, J.A. ___________________________________ J.C. MARC RICHARD, J.A.