2011 QCCA 1574, 2011 QCCA 1574

Armeni c. R. 2011 QCCA 1574 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-003988-076 and 500-10-003989-074 (700-01-061713-056 SEQ. ACC. 002) DATE: AUGUST 24, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. GUY GAGNON, J.A. VINCENZO ARMENI APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT has before it the appeal from three verdicts rendered on October 6, 2007, by a jury presided by the Honourable Richard Wagner (Superior Court, District of Terrebonne), that convicted the appellant of the offences of trafficking cocaine, possession of cocaine for the purposes of trafficking, and conspiracy to traffic cocaine; [ 2 ] In this appeal, the appellant presents an application to the Court to adduce fresh evidence; [ 3 ] After the verdicts were handed down, the appellant was given leave by a judge of this Court to appeal the sentences handed down by the Superior Court judge on October 19, 2007, which total nineteen years’ imprisonment; [ 4 ] After having examined the file, heard the parties, and on the whole deliberated; [ 5 ] For the reasons of Gagnon J.A., with which Beauregard and Rochon, JJ.A., agree; [ 6 ] DISMISSES the application to adduce fresh evidence; [ 7 ] DISMISSES the appeal from the verdicts; [ 8 ] DISMISSES the appeal from the sentences.

MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. GUY GAGNON, J.A. Mtre Alan D. Gold and Mtre Vanessa Arsenault ALAN D. GOLD PROFESSIONAL CORPORATION Mtre Danielle Douek For the appellant Mtre Michel Pennou and Mtre Steve Baribeau CRIMINAL AND PENAL PROSECUTING ATTORNEYS For the respondent Date of hearing: December 8, 2010

REASONS OF GAGNON, J.A. [ 9 ] On October 6, 2007, a jury presided by Mr. Justice Richard Wagner, then of the Superior Court, convicted the appellant Vincenzo Armeni (“Armeni”) of the following offences:

(1) Between July 28, 2005 and July 31, 2005 in Blainville, district of Terrebonne, and in St. Leonard, district of Montreal, did traffic in a substance included in

Schedule I or represented to be or held out as such, committing thereby the indictable offence provided by section 5(1)(3) (

a) of the Controlled Drugs and Substances Act ;

(2) Between July 28, 2005 and July 31, 2005 in Blainville, district of Terrebonne, and in St. Leonard, district of Montreal, did have in his possession for the purposes of trafficking Cocaine, committing thereby the indictable offence provided by section 5(2)(3) (

a) of the Controlled Drugs and Substances Act ;

(3) Between July 28, 2005 and July 31, 2005 in Blainville, district of Terrebonne, and in St. Leonard, district of Montreal, did conspire with Alfredo Minisini and one Sylvain Garand to commit an indictable offence, to wit: trafficking cocaine, committing thereby the indictable offence provided by section 465(1) (

c) of the Criminal Code . [ 10 ] Further to these verdicts and after ordering a stay of proceedings on the second count upon application of the rule in Kienapple , [1] the judge sentenced Armeni to terms of imprisonment totalling nineteen years. [ 11 ] After being given leave by the Court to adduce fresh evidence, [2] Armeni now asks us to rule on its admissibility and probative value. He claims that this evidence shows that he is entitled to a new trial. He also raises various grounds for appeal which, in his opinion, justify an acquittal.

In addition, in the event that the appeal from the verdicts is dismissed, he asks that the sentences, which are in his view unreasonable, be reduced overall to a period of eight years’ imprisonment. [ 12 ] Beyond the admissibility of the fresh evidence, this appeal raises essentially these issues: (

i) an incorrect warning concerning the purported repentant witness Sylvain Garand (“Garand”); (ii) inadequate and incorrect instructions concerning the identification of Armeni; and (iii) incorrect explanation of the concept of reasonable doubt. [ 13 ] Before we consider the grounds for appeal, it is appropriate to provide an overall picture of the events that led to Armeni’s conviction. BACKGROUND [ 14 ] Garand and a man named Alfredo Minisini (“Minisini”) are brothers-in-law; Garand’s sister is married to Minisini. The prosecution maintains that the two men initially teamed up to produce and traffic cannabis.

Later on, Garand agreed to become involved with Minisini in trafficking large quantities of cocaine obtained through Armeni’s participation. The evidence against Armeni is essentially circumstantial and relies in large part on the testimony of Garand, who, after his arrest, claimed to be informing on his accomplices. [ 15 ] The facts in this case go back to December 2004. According to Garand’s testimony, Minisini and another accomplice looked for a home in a residential area to produce cannabis undisturbed and subsequently traffic in it.

Again according to Garand, in January 2005, he rented a house located in a residential part of the city of Blainville.

It was agreed, he said, that Minisini would pay the rent, the electricity, and the cost of the equipment required to produce cannabis; as for himself, he would look after growing and selling the drug. [ 16 ] Garand added that in early July 2005, Minisini told him that [ translation] “the real job was coming”, and in the third week of July, Minisini asked him to get rid of the equipment for producing cannabis and completely clear out the basement of the house because a large quantity of cocaine was going to arrive soon. [ 17 ] Still according to Garand, on July 28, 2005, he and Minisini went to Bar RD, an establishment located in a shopping centre on Jean-Talon Street in Montreal.

There they met a man Garand later identified as Vincenzo Armeni. This man gave them the keys to two pickup trucks parked near the bar, each containing a large quantity of cocaine; according to Garand, the amount totaled 761 kilos. He added that he and Minisini took possession of the two vehicles and drove back to the house in Blainville to store their cargo there. [ 18 ] After transporting the drugs, Garand and Minisini went to Viau Street in Montreal and parked one of the pickups across from the TD Bank.

This bank is near a flower shop owned by Armeni’s wife, where Armeni claims to have worked full-time from March 2003 to May 2006. [3] They parked the second pickup on a street behind the bank. [ 19 ] Garand was arrested at the Blainville house on December 8, 2005. The police found more than 240 kilos of cocaine in the basement of the house. Upon being arrested, he decided to cooperate with the authorities. He then confessed that he had been involved in producing and trafficking cannabis and in trafficking cocaine. Regarding this last offence, he implicated different partners in different criminal activities.

He admitted to the police a first partnership between Minisini and himself, as well as a second with a certain Val Jean Dagenais, who was not involved in the charges against Armeni. [ 20 ] In his confessions, Garand stated that he had seen Armeni on one occasion before meeting him at Bar RD.

On that occasion, while he was doing some masonry work with Minisini on a house on Baccarat Street, he saw Armeni, who was driving a black sports utility vehicle (SUV), stop near the building and speak briefly with Minisini. [ 21 ] Although he stated that he had seen Armeni on Baccarat Street, and even though he had met him at Bar RD, Garand was not

able to identify him in photo viewing sessions on December 12 and 19, 2005. On December 23, 2005, however, while driving around a residential neighbourhood with two police officers, he said that he recognized a man who was standing in a parking spot near a house. According to him, it was the same man who, at Bar RD, had given them the keys to the pickup trucks.

He again confirmed the identity of Armeni, on June 15, 2006, at another photo viewing session. [ 22 ] In the fall of 2006, Garand, through his sister, made an offer to Minisini that he would plead guilty to the offences charged against him and would say nothing about the involvement of his accomplices in exchange for $75,000.

There was no response to this offer. [ 23 ] On December 4, 2006, in exchange for the benefits set out in an agreement between himself, the Ministère de la Justice du Québec (Quebec department of justice) and the Sûreté du Québec (Quebec provincial police), [4] Garand agreed to plead guilty to the offence of possession of cocaine for the purposes of trafficking. On December 14, 2006, he confessed before a judge of the Court of Quebec [5] and was sentenced to five years’ imprisonment. As a result of the information given by Garand, Armeni was arrested on May 30, 2006.

Grounds for appeal [ 24 ] Armeni outlines his grounds for appeal in the following manner: (

i) Since Garand is an unsavoury witness, the judge should have told the jury that independent and material evidence was required to confirm this witness’s suspect testimony, but such evidence was not presented to the jury. (ii) The judge should have emphasized to the jury that the identification evidence given by Garand was weak. (iii) The judge erred with respect to the concept of reasonable doubt by not explaining to the jury that such doubt could arise from a lack of evidence, and by not indicating to the jury the evidence that was not provided. [ 25 ] Before I examine each of the grounds for appeal, I shall deal with the application to adduce fresh evidence.

THE FRESH EVIDENCE [ 26 ] The application to adduce fresh evidence deals indiscriminately with different pieces of evidence, some of which were already in the Crown’s possession at the time of the trial and others that I would qualify as genuinely fresh evidence. The issue now is to rule on the admissibility and probative value of the following: •

Schedule “A”: agreement for admission into the witness protection program, signed by Garand on August 29, 2007, and the attached statement of protective measures; •

Schedule “B”: documents subsequent to the agreement of December 4, 2006, but related to its management, concerning loans and advances to Garand, their repayment terms and conditions, and the cost of the protective measures; •

Schedule “C”: documents relating to the social assistance payments received by Garand in January and February 2006; •

Schedule “D”: documents relating to the amount and repayment of Garand’s debt to the CSST; •

Schedule “E”: a progress report prepared by the Service de protection des témoins (witness protection unit) in 2008; •

Schedule “F”: a version of the agreement signed on December 4, 2006, with fewer redactions than the version originally disclosed to the appellant; and •

Schedule “G”: transcript of a telephone conversation between Garand and his sister. i. Genuinely fresh evidence [ 27 ] To be admissible, the fresh evidence must meet the criteria outlined in Palmer [6] and summarized by this Court in A.B. v. R. :

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief, and (4) it must be such that if believed it could reasonably be expected, when taken with the evidence adduced at trial, to have affected the result. [7] [ 28 ] The following information is in my opinion genuinely fresh evidence, since it was not created until after the verdicts were given: •

Schedule “B”: documents subsequent to the agreement of December 4, 2006, but related to its management, concerning loans and

advances to Garand, their repayment terms and conditions, and the cost of the protective measures; •

Schedule “E”: a progress report prepared by the Service de protection des témoins (witness protection unit) in 2008; •

Schedule “G”: transcript of a telephone conversation between Garand and his sister. -

Schedule “B”: Loans and advances to Garand [ 29 ] Armeni claims that Garand’s many requests for cash advances and loans, totalling $19,441.06, do not tally with the protection agreement signed on December 4, 2006.

He maintains that in fact there were as many subsequent agreements as cash advances and loans, and that consequently they were in actual fact performance contracts. [ 30 ] An analysis of the documentation submitted in support of the application to adduce fresh evidence reveals that, except for a request for a cash advance made by Garand on September 14, 2007, all of the other loans and advances were given to him after he provided his version of the facts at Armeni’s trial.

It is therefore inaccurate to claim that the arrangements in the agreement of December 4, 2006, were tantamount to performance contracts; for the most part, these arrangements were made after the verdict had been handed down. In addition, the total of the loans and advances to Garand is lower than the amounts provided in the protection agreement.

Finally, the evidence shows that the money paid to this witness was duly repaid by the individual concerned from the budget provided under the agreement. [ 31 ] Any jury properly informed of the ins and outs of the management of the agreement of December 4 could not have done otherwise than find that the agreement had been respected and that Garand had not received any benefit other than those already mentioned therein. In short, I am of the opinion that this evidence could not affect the result of the trial. -

Schedule “E”: Progress report [ 32 ] The progress report of the Service de protection des témoins of the Sûreté du Québec (Quebec provincial police witness protection unit), dated July 17, 2008, indicates that Garand complained that he did not have enough income and that, if there was no improvement in his financial situation, he might claim that he had perjured himself at Armeni’s trial. [ 33 ] As Bouchard JA pointed out in A.B. v. R. , [8] fresh evidence must be assessed in light of the evidence already adduced in the trial. Garand was and remains a tainted witness.

Indeed, his credibility had been undermined to the point that the judge advised the jury that it was imprudent to convict Armeni solely on the word of this witness and that it should seek reassurance in evidence that confirmed his testimony. The fresh evidence at issue here, however, does not challenge the probative value of the circumstantial evidence that tends to confirm Garand’s version of events. [ 34 ] In addition, the record does not show that the State decided to consider Garand’s threat by subsequently changing the agreement and improving the benefits that had already been granted. -

Schedule “G”: Transcript of the telephone conversation between Garand and his sister Danielle Garand [ 35 ] This was the second telephone conversation between Garand and his sister. In it, he repeated his wish to obtain financial assistance from Minisini. At the hearing, Garand claimed that this conversation ended suddenly with a dispute. The transcript of the conversation, however, shows instead that it ended cordially. [ 36 ] Based on this inconsistency, Armeni submits the hypothesis that there had been another telephone conversation between these same people of which he was not informed.

In any event, Armeni argues, this evidence shows that Garand did not tell the truth. He adds that Garand’s attitude during this second conversation further undermines his credibility when he repeated that he would have been prepared not to incriminate his accomplices if he had received any help from them. [ 37 ] The hypothesis of a third conversation is not based on any established fact. Moreover, Armeni does not show that this claim, even if admitted, could reasonably have a decisive effect on the outcome of the trial.

As for the apparent contradiction concerning the state of mind of the two parties when they ended their conversation, this single element is not very significant compared to the many others that had already undermined Garand’s credibility. [ 38 ] Finally, the jury had already been made aware of a first telephone conversation between Garand and his sister during which he said that he was prepared to take full responsibility for the crimes charged if his silence was bought for $75,000.

I cannot see how the second conversation would add to the evidence already known to the jury as to the witness’s lack of credibility. In sum, we cannot reasonably believe that the words exchanged between Garand and his sister were of a nature to have some effect on the outcome of the trial. ii. Evidence in the Crown’s possession [ 39 ] It is admitted that the prosecution did not disclose the evidence identified in Schedules “A”, “C”, “D” and “F” to Armeni before his trial.

The prosecution had an obligation to disclose these exhibits where there was a reasonable possibility that the information they contained might be useful to the defence. [ 40 ] Because of this, the appellant concludes that he is entitled to a new trial. For such a radical sanction, it must be demonstrated that there is a “reasonable possibility” that the verdicts might have been different if the jury had known this information, or that failure to bring this information to the jury’s attention had a negative impact on the fairness of the trial process. [ 41 ] In R. v.

Dixon , the Supreme Court defined the criterion of “reasonable possibility” as follows:

[34] …However, the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired . [9] [Emphasis in original.] -

Schedule “A”: Agreement for admission into the witness protection program signed by Garand on August 29, 2007 [ 42 ] Armeni maintains that the agreement for admission into the witness protection program and the statement of protective measures, signed by Garand on August 29, 2007, constitute secret agreements in addition to the agreement of December 4, 2006.

Only the latter document was disclosed. [ 43 ] I agree with the respondent’s statement that, if the protection agreement had been disclosed in a timely manner, there would have been no failure to attach the relevant information explaining the reason for such an agreement and how it works. This information can be found in the sworn statement of Alain Racine, assistant to the head of the Service de protection des témoins of the Sûreté du Québec (Quebec provincial police witness protection unit), of which I reproduce the main passages: [ translation] 4.

August 25, 2007, Sylvain Garand completed his transition period. The Service de protection des témoins of the Sûreté du Québec (Quebec provincial police witness protection unit) then became responsible for his safety. Sylvain Garand also became eligible to receive weekly benefits of $500.00, as stipulated in paragraph 3(

a) of the agreement. 5. It had not been possible by that date to put in place all the protective measures necessary to ensure Sylvain Garand’s safety. For this reason, the witness protection unit decided to postpone payment of the weekly benefits owing to Sylvain Garand until he received all the protective measures necessary to ensure his safety. 6. Under the circumstances, Sylvain Garand signed with Mr. Robert McMillan, head of the witness protection unit, a statement of protective measures on August 29, 2007.

To compensate for the postponement of the payment of the weekly benefits, the Sûreté du Québec undertook to take secure and confidential steps to ensure that Sylvain Garand could receive social assistance benefits and to defray the cost of his lodgings (paragraphs 3 and 4 of the statement). 7. The undertakings made by the Sûreté du Québec as part of the statement of protective measures were temporary in nature.

They ended when all the protective measures necessary to ensure Sylvain Garand’s safety had been put in place. [ 44 ] In light of the foregoing, I cannot see how the information contained in the August 29 agreement could have reasonably had a decisive effect on the verdicts, or how the absence of this information meant that Armeni did not have a fair and equitable trial. [ 45 ] In point of fact, this agreement and the accompanying statement are only the implementation of undertakings made by the government to Garand in the agreement dated December 4, 2006.

They do not add anything to the spirit of this agreement, except to reiterate in a different way the respective obligations of the parties and to adapt them to the temporary circumstances explained by Alain Racine. In addition, they do not reveal any financial benefit other than those to which the parties had already agreed. [ 46 ] I add that this evidence cannot be dissociated from some supplementary information on the period concerned.

I reproduce the list of this information from the respondent’s factum: [ translation] • During the period from August 29, 2007, to August 28, 2008, Garand received social assistance, which represented a smaller amount than the food allowance provided in the agreement; • The loans and advances received by Garand from July 2007 to August 2008 represented a smaller amount than he would have received for the same period under the agreement; • The loans and advances given were repaid by Garand from the temporary food allowance that was supposed to be paid to him; and • The loans and advances given did not affect the total budget allowance for the monetary benefits granted to Garand under the agreement. [ 47 ] Finally, concerning this issue, throughout the entire trial, the defence did not try to find out more about the performance terms and conditions of the December 4, 2006, agreement.

In fact, during the investigation, this subject was hardly brought up by the defence, except for the following remark made by counsel for Armeni: “The jury will see in exhibit P-25 your agreement with the state and the money you are receiving as a result of that, so I don't need to repeat that”. - Schedules “C” and “D”: Social assistance and the CSST [ 48 ] This evidence aims to establish that Garand unlawfully received two cheques drawn by Emploi et Solidarité sociale du Québec (Quebec department of labour) and that he also defrauded the Commission de la santé et de la sécurité du travail du Québec (workplace health and safety commission) of approximately $7,463 while he was a detainee. [ 49 ] It is true that, in his written statement of May 15, 2008, Garand acknowledges that he fraudulently cashed two cheques (January and February 2006) from Emploi et Solidarité sociale du Québec (Quebec department of labour).

The existence of this fraud was already

known to the jury, however, and so it was unlikely to discredit him further. [ 50 ] I also note that Garand’s statement, read in its entirety, may even increase his credibility, because it indicates that he repaid his debt in full to Emploi et Solidarité sociale du Québec Quebec (Quebec department of labour) while in detention, out of the money that he was to receive for living expenses.

At the same time, this information supports the prosecution’s claims that Garand never received any money above and beyond what was stipulated in the protection agreement. [ 51 ] As for the fraud against the CSST, apart from its scope, it was also already known to the jury. Furthermore, Garand’s statement of April 17, 2008, concerning this fraud mentioned that: [ translation] I would like the amount to pay this debt to be advanced to me in the form of a loan by my SPT [witness protection unit ] monitor.

I agree to repay this loan to the SPT by deducting part of the sum of money granted as a food allowance, at their convenience. The amount and the start date of the weekly deductions remain to be confirmed by the SPT. [10] [ 52 ] A complete reading of this witness’s statements does not justify a conclusion that the evidence would have influenced the outcome or the fairness of the trial.

Schedule “F”: Less redacted version of the agreement signed on December 4, 2006 [ 53 ] Concerning this evidence, Armeni does not submit any significant argument. In any case, the less redacted version of the December 4, 2006, agreement does not reveal anything that would change the jury’s understanding of the protection agreement presented at the trial. [ 54 ] I therefore find that the evidence that remained in the respondent’s possession does not have the importance Armeni assigns to it.

When weighed in light of all the other evidence presented to the jury, it can be seen that this evidence would not have had a great deal of weight in the jurors’ minds. Under the circumstances, the prosecution’s failure to disclose did not impair Armeni’s right to make full answer and defence. GROUNDS FOR APPEAL i. The Vetrovec warning [ 55 ] The appellant maintains that the judge committed a decisive error by drawing the jury’s attention to different pieces of evidence which, in his opinion, did not have the independence and materiality required to qualify as confirmatory evidence within the meaning of R. v.

Khela . [11] [ 56 ] Obviously, Armeni’s conviction is based essentially on Garand’s testimony. The parties and the judge had no difficulty agreeing that Garand was a tainted witness. Garand’s lengthy examination-in-chief dealing with his troubled youth, his often disorderly lifestyle, his criminal record, and his involvement in the crime with which Armeni was charged, clearly revealed that his testimony was suspect. The vigorous and timely cross-examination was even more eloquent with respect to the witness’s questionable morality and his possible interest in the outcome of Armeni’s trial.

The judge was therefore correct to instruct the jury on the danger of convicting Armeni based solely on Garand’s testimony. [ 57 ] Armeni is critical, however, of the insufficiency of the warning and the listing of certain facts that the judge considered to be part of the potentially confirmatory elements of Garand’s testimony.

For Armeni, the eleven examples accepted by the judge did not have the independence and materiality required to qualify as potentially confirmatory evidence because “the trier of fact's faith in the witness' evidence could be restored only if it implicated the Appellant in the offence”. [12] I do not agree with this statement. [ 58 ] The appellant’s argument brings to mind the formal rules for corroboration set out in R. v. Baskerville , [13] which held that such evidence must bear on an independent fact which, in some material particular, necessarily implicates the accused.

This rule was expressly rejected in Vetrovec v. R. , however, when Dickson J. proposed a less rigid approach: The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice . [14] [Emphasis added.] [ 59 ] In R. v.

Boucher , this Court reviewed certain teachings to guide trial courts in their analysis of potentially confirmatory evidence: [ translation] [29] … (

a) It is incumbent upon the trial judge to decide not whether the evidence contains confirmatory facts, a task which falls to the jury, but whether it contains potentially confirmatory facts. (

b) If the trial judge finds that there is no potentially confirmatory evidence, he must advise the jury.

(

c) In addition, if the evidence reveals facts that could confirm the problematic testimony, the judge must instruct the jurors accordingly and give examples of evidence that they may consider in the context of this analysis, but with the reservation expressed in Bevan … which does not concern us in the present case. (

d) It would be a mistake to consider each piece of potentially confirmatory evidence in isolation when it is circumstantial evidence: it is the cumulative effect of all these pieces of evidence that must be weighed. (

e) In the present case, the confirmatory evidence must tend to reassure the jury that the [accused] really did say the things that [the witness] imputed to him, therefore reinforcing the jury’s conviction that [the witness] was telling the truth. [15] [Citations omitted.] [ 60 ] These principles were repeated in Devilliers v. R ., where Thibault J.A., for the Court, wrote: [ translation] [44] Pursuant to these teachings, I find that if the confirmatory evidence does not necessarily bear on a fact in issue, it must at least restore the jury’s confidence with respect to relevant aspects of the witness’s story.

It need not directly implicate the accused. On the other hand, when part of an accomplice’s testimony presents a particular risk, the trier of fact must be convinced that it is trustworthy: Where a particular risk attaches to one critical element of the evidence of “ an accomplice, or a disreputable witness of demonstrated moral lack ” ( Vetrovec , supra, at p. 832), the trier of fact must be satisfied that the “potentially unreliable” evidence of the witness can be relied upon as truthful in that regard . [16] [Emphasis in original] [ 61 ] In my opinion, the Supreme Court’s decision in R. v.

Khela has not called these principles into question.

Speaking for the majority, Fish J. was careful to point out that the objective of the Vetrovec warning is both to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony. [17] He also reiterated the importance of the judge’s discretionary power in this area and thus the deference that an appellate court must show when considering the appropriateness of instructions containing a Vetrovec warning: [13] The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial.

No particular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form. Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionary instruction that was given failed to serve its intended purpose. [14] No single formula can be expected to produce an appropriate instruction for every foreseeable — let alone unforeseeable — situation at trial.

That is why we vest in trial judges the discretion they must have in fashioning cautionary instructions responsive to the circumstances of the case. Trial judges nonetheless seek, and are entitled to expect, guidance from this Court as to the general characteristics of a sufficient warning. [18] [ 62 ] Fish J. went on to state that evidence, to be considered confirmatory, need not implicate the accused: [40] …In Kehler , the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused.

We maintain that position here. [41] Individual items of confirmatory evidence need not implicate the accused. [19] [ 63 ] That said, confirmatory evidence must reassure the jury that the impugned witness is telling the truth about the contentious issue that led to the conviction of the accused: [43] This passage was cited with approval in this Court’s unanimous judgment in Kehler , where the Court concluded that confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account (para. 15).

As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony. [20] [ 64 ] From the foregoing, I find that it is up to the judge to draw the jury’s attention to what he or she considers to be potentially confirmatory evidence, while it is up to the jury to decide on the actual strength of such evidence.

It is not required that each piece of evidence adduced directly implicate the accused or that the evidence concern a contentious fact. [ 65 ] In my opinion, the judge correctly warned the jury of the importance of confirming Garand’s testimony through independent evidence. Although he did not formally define what such evidence is, he nevertheless had the discretion to indicate, along with the warning, the evidence that he considered relevant to the confirmation of Garand’s version. [21] [ 66 ] A list of several examples of confirmatory evidence easily made up for the lack of a formal definition.

These practical examples had as much pedagogical value as a theoretical charge on the nature of the independent evidence.

In my opinion, through the many examples given to the jury, the instructions achieved their fundamental objective, which was to warn the jury of the danger of convicting Armeni on the basis of an impugned testimony: [ translation] [296] In short, although the judge must urge the jury to exercise prudence and to look for independent evidence confirming the testimony of the witness whose reliability is in doubt, the warning need not be perfect, provided it contains the essential characteristics of the Vetrovec warning in one way or another and it achieves the purposes of the warning. [22]

[ 67 ] Khela demonstrates the futility in such cases of attempting to design a uniform and preordained instruction encompassing all of the circumstances to which it could apply. This is primarily why, in Vetrovec and then in Khela , the Supreme Court rejected a formalism characterized by the use of preconceived, universal formulas, preferring to rely on a more flexible approach, known as the “principled framework”, [23] as a way of effectively warning the jury about suspect testimony. [ 68 ] The principled framework has four elements that can be summarized as follows: (

i) Drawing the attention of the jury to the suspect testimony; (ii) Explaining the reasons for a thorough examination of this testimony; (iii) Cautioning the jury that it is dangerous to convict the accused on the basis of this unconfirmed evidence; and (iv) Informing the jury that it must, when determining the veracity of the suspect account, look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused (the independence and materiality of the evidence). [ 69 ] In my view, the warning to the jury, as reproduced below, meets these fundamental elements: I warn you that you should be extremely cautious in accepting his testimony, it is unsafe for you to rely on his evidence alone.

I am giving you this warning because the evidence has established that mister Garand admitted that he participated in the commission of the same offences for which mister Armeni is now charged. Moreover, the evidence also indicates that mister Garand was involved in other criminal activities in the past and that he has an unsavory reputation. Moreover the evidence has established that after his arrest mister Garand has tried to make a deal with mister Alfredo Minisini and his sister in exchange of his silence and his undertaking to take all the blame.

Finally, the evidence has established that mister Garand has signed a contract with the State to cooperate in the police investigation and may wish to protect his own interest while cooperating with the police. [24] [ 70 ] Having clearly explained to the members of the jury the need to approach the witness Garand’s story with caution, the judge urged them to look for certain parts of the evidence that could be characterized as independent evidence confirming Garand’s suspect testimony.

Here is what he said: What you should look for is independent evidence that agrees with portion of mister Garand's evidence and makes you more confident that his testimony is true. It is for you to decide whether or not there is supporting evidence which strengthen your belief that mister Garand is telling the truth. In the absence of any such evidence you should be reluctant to accept the evidence of mister Garand. In the present case there are facts that could constitute circumstantial evidence that may be considered by the jury. Of course you must also consider the frailties of this independent evidence.

It is for you to decide whether or not that evidence, or an evidence of a similar nature, does in fact strengthen your belief that mister Garand is telling the truth. [25] [ 71 ] The judge went on to mention the following evidence to the jury, which, in his view, could support Garand’s testimony: Exhibits P-2 and P-3 show that the basement of mister Garand's house was set up to cooperate in a marijuana plantation and was prepared also to receive a large quantity of cocaine… There is an admission that the house on Baccarat Street was under construction in July 2005.

The accused was using a black 2004 Mercedes, an ML500 property of his wife. The physical surveillance of Alfredo Minisini revealed that on December 5 th , 2005, he went to the premises of Boutique Fleurs et Cadeaux Fantasia and rang the bell at the back door. Alfredo Minisini's car was seen in the driveway of 3947 de la Princesse Street in Laval, the residence of the accused, on December 6 th , 2005, December 7 th and December 8 th , 2005.

According to telephone logs it is admitted that the accused called or was called by Minisini two hundred (200) times between the months of July and December 2005, these telephone conversations stopped on December 8 th , 2005. There are records of phone calls on July 28 th , 2005 between Garand and Minisini. Physical surveillance indicates that on December 9 th , 2005, Minisini met with a couple in Laval at a Mercedes garage where the couple was seen leaving the place aboard a Caravan bearing the inscription “Fleuriste Fantasia.com”.

Mister Leon Altshuller stated that Vincenzo Armeni was known under the first name of Jimmy. On July 28 th , 2005, telephone logs indicate there were ten (10) calls registered between Minisini and the accused. And finally there was an admission the accused was working full-time between March 2003 and May 2006 at his wife's store Fleurs et Cadeaux Fantasia. I just pointed out to you a few examples that might constitute supporting evidence to strengthen your belief that Garand was telling the truth.

You should use the examples I have given to you as a guide for identifying other evidence that might confirm mister Garand's evidence. In the end ask yourself whether enough of mister Garand's testimony has been supported to strengthen you[r] belief that mister Garand is telling the truth.

I must tell you that you are not legally required to find such a support before you can rely on mister Garand's testimony, you may rely on it without finding support if you are convinced beyond a reasonable doubt that it is true, however it is dangerous for you to accept mister Garand's evidence unless you find support of it. [ 72 ] It is worth noting that, despite the judge’s opinion on this issue, when requested by counsel for Armeni, he nevertheless informed the jury that the existence of this so-called potentially confirmatory evidence was disputed by the accused: First of all I need to mention to you that insofar as the Defence is concerned, of course it takes the position that there is no supporting evidence in the file in order to strengthen your belief that mister Garand was telling the truth, whereas the Crown takes the position that there are such evidence confirming mister Garand's testimony.

I just wanted to make it clear. [26] [ 73 ] As he did at trial, the appellant asks that each piece of evidence be examined in isolation from the others and from the evidence

as a whole to determine whether it has the required materiality and independence. In my view, this approach to the analysis of confirmatory evidence is inconsistent with the trial judge’s duty, which is to assess all of the evidence from an overall perspective and, considering its cumulative effect, confirm his or her opinion as to the probative value of the suspect testimony. [27] [ 74 ] I shall provide a

summary response to the appellant’s arguments concerning the evidence accepted by the judge as confirmatory. First, there is evidence that Armeni claims is not independent of Garand: (

i) Photographs of the building rented by Garand, including a photograph of the basement where the cocaine was stored; (ii) Telephone record of Minisini dated July 28, 2005; and (iii) Leon Altshuller’s testimony, according to which Armeni was commonly called “Jimmy”. [ 75 ] Armeni argues that these three pieces of evidence are not independent of the witness Garand since they arise in part from his testimony. It seems, however, that this evidence is from a source other than the impugned witness.

For instance, the photographs taken by the police show that the basement was able to accommodate a large quantity of cocaine. [28] It was in fact where the drug was found. Indeed, according to Garand, more than 760 kilos of cocaine were initially stored there; hence the importance of removing the cannabis production equipment ahead of time.

As for the telephone records of Minisini, they support Garand’s claims that Armeni and Minisini had spoken several times on July 28, 2005. [29] The witness Altshuller confirmed Garand’s claim that Armeni was “Jimmy”, a name that Minisini called Armeni in their telephone conversations. [ 76 ] Nothing indicates that this evidence is tainted by any connection whatsoever with the witness Garand. Moreover, in such matters it is not necessary to establish that the evidence is independent in order to show that it is confirmatory.

Far from being run-of- the-mill, this evidence has the materiality required to qualify as confirmatory evidence. [ 77 ] According to Armeni, there is also evidence that is not material: (iv) Minisini went to the back door of Armeni’s wife’s shop; (

v) On December 6, 7 and 8, 2005, Minisini’s car was parked at Armeni’s home; (vi) Minisini and Armeni spoke on the telephone several times, but all communication ceased after December 8, 2005; (vii) At a garage, Minisini met with a couple who had driven there in Armeni’s wife’s car; (viii) Armeni and Minisini spoke ten times on July 28, 2005; (ix) Armeni works at his wife’s shop; (

x) The type of motor vehicle driven by Armeni; and (xi) Minisini’s building on Baccarat Street is under construction, and Garand works there. [ 78 ] Armeni claims that some of these pieces of evidence (iv to viii) tend at best to confirm the legal business ties between him and Minisini concerning offers to purchase condominiums. With respect, in my opinion this aspect of Armeni’s argument is not very credible.

His alleged business relations, which were substantial at times, judging from the telephone records and numerous meetings between the two men, ended abruptly without any apparent reason on December 8, 2005 – the very day Garand was arrested. Furthermore, Armeni’s claim is supported by incomplete documents that provide little indication of any actual business dealings.

Garand in fact stated that these offers to purchase were only simulated contracts. [ 79 ] Moreover, Armeni’s suggestion does not affect the confirmatory value of this evidence whatsoever in that it shows two men who know one another well, see each other socially, and speak on a regular basis. It shows that their meetings, some of which involved Garand, did not have any unusual elements. It reinforces, in fact, the probative value of Garand’s story concerning the meeting at Bar RD.

In short, this evidence is part of the logical unfolding of the events related by Garand. [ 80 ] The same is true with respect to the other evidence disputed by Armeni (ix to xi), which moreover helps connect him with the two pickup trucks when they were parked in an area that he spent time in, not far from his wife’s flower shop, where Minisini had in fact already gone. This evidence also confirms Garand’s description of the motor vehicle driven by Armeni, just as it shows that the meeting on Baccarat Street was not dreamed up by Garand.

The facts admitted by Armeni before the trial add probative value to this evidence to the extent that he acknowledges working at his spouse’s shop and admits to driving a black Mercedes, model ML500. [30] [ 81 ] From a global perspective, considering the confirmatory evidence accepted by the judge and the cumulative effect, the only possible conclusion is that this evidence reassured the jury that Garand’s testimony was trustworthy, not with regard to incidental questions but concerning the relevant aspects of Garand’s account of Armeni’s guilt. [31] ii.

Identification evidence [ 82 ] Armeni takes issue with the warning about the visual identification evidence. He criticizes the trial judge for including only the Crown’s argument in the charge and for failing to point out that this evidence was tainted by circumstances, considerably weakening its value. [ 83 ] Adopting the rules set out in R. v. Turnbull , [32] this Court described the essential elements of the caution required when visual identification of the perpetrator of a crime is disputed:

[ translation] The essential elements of this caution include: first, an instruction as to the inherent weakness of the identification evidence; then, clarifications about the need for such a caution; and finally, specific instructions to the jury to carefully consider the circumstances in which the identification came to be made.

Furthermore, it is not sufficient for the judge to inform the jury of the need to exercise caution in approaching this evidence; the judge must also “relate that need to the facts of this case”, drawing the jury’s attention specifically to any material interference with the observations or memories of eyewitnesses, as well as to any irregular identification procedure that could falsify the results. The probative value of visual identification evidence may be partially or entirely destroyed by the use of prejudicial identification methods.

The use of such methods in the present case requires that the judge provide an appropriate warning . [33] [ 84 ] In this particular case, the judge told the jury: I also need to give you specific instructions as to the nature of the identification performed by mister Garand after his arrest in December 2005. Every once in a while in our Courts a person is convicted of an offence even though he or she is innocent. When this does happen, it doesn't happen often, it is because of a mistake made by one or more eyewitnesses.

It is easy to see how this can happen, an eyewitness can be a very convincing witness when that witness honestly believes that the accused person is the one he or she saw committing the offence. There is little connection between the confidence of the witness and the accuracy of the identification, a very confident witness may be entirely wrong with respect to his or her identification evidence.

In this case your decision will depend largely on whether you find that the eyewitness, mister Sylvain Garand, correctly identified mister Vincenzo Armeni as the person who gave the keys of the two (2) trucks loaded with the controlled substance that is cocaine. You must therefore understand that observation and memory are often unreliable when it comes to the identification of people, in other words this is an area where people often make honest mistakes.

When you consider the evidence of the eyewitness you should use the following guidelines, paying particular attention to the eyewitness's opportunity to observe the person he says is Vincenzo Armeni. How long was the eyewitness looking at the person he saw? How far away was the eyewitness? Was there anything which might have obstructed the view of the eyewitness? Was there anything else happening at the same time that might have distracted the eyewitness? What were the lighting conditions at the time, did the eyewitness appear to have good eyesight? Did the eyewitness appear to have a good memory?

How long was it between the time when the eyewitness saw the event and the time when he identified the accused, was it a matter of hours or was it several days or months? Was the eyewitness able to give a good description of the person he saw? Has the eyewitness made any significant changes to that description? Did the eyewitness explain how he was able to identify the accused as the person he saw? Did he mention specific features about the person he saw which helped him make the identification? Was there other evidence which appeared to support the identification by the eyewitness?

Please bear in mind however that we sometimes make mistakes when we try to recognize people we know quite well. Some of you have probably had the experience where someone comes up to you and says : “ I know you, didn't you use to live at such and such a place ”, or something similar, only to find out that you have been mistaken for someone else. You will recall that Sylvain Garand gave evidence in chief dealing with the identity of mister Armeni as the person who transferred the keys of the trucks containing the drug.

You may find there were witnesses in the evidence of the Crown as it relates to the issue of identity. The evidence has shown that mister Sylvain Garand on December 12 th , 2005, identified another person as being mister Vincenzo Armeni, at P-6, and only identified mister Armeni in June of 2006, according to P-16. The Crown has argued that mister Garand had made an honest mistake inasmuch as the photograph submitted to him for identification in December 2005 was taken in the years 2000, whereas the picture which was used for the following identification in 2006 had been taken more recently in 2005.

On the other hand the Defence Counsel is urging you to disregard mister Garand's testimony as being unreliable. As you can see, ladies and gentlemen, the recognition of another person is more complicated than we might think it is. Usually you do not think about how we recognize people you have seen before, you take it for granted that we can tell the difference between one person and another, however, in a criminal case you cannot afford to be casual about the identification of one person by another person.

I urge you to consider carefully what I have said to you about the evidence of eyewitnesses because you cannot return a verdict of guilty based on the eyewitness's evidence alone unless you are satisfied beyond a reasonable doubt that the eyewitness, in the present instance mister Sylvain Garand, correctly identified Vincenzo Armeni as the person who committed the offence. However, if you are satisfied beyond a reasonable doubt of the guilt of Vincenzo Armeni on the basis of the visual identification, when considered together with the other evidence in this case, then you are bound to act on it.

That was for the first ingredient, the identity of the accused. [34] [ 85 ] Here is a

summary of the Armeni’s objections with regard to the inadequacy of the warning concerning the identification evidence: (

a) The day after Garand was arrested, he stated that he did not know if Minisini was acting alone and vaguely said that the man he had met with Minisini was Italian; (

b) On December 12, 2005, Garand was unable to pick out the person he had met on Baccarat Street and at Bar RD from a series of photographs, and subsequently stated that he could do so after the police officers [ translation] “introduced” Armeni to him in the driveway of a home on December 23, 2005, while they were patrolling the sector with him; (

c) The physical description provided by Garand on December 12, 2005, did not correspond to that of Armeni; (

d) On December 19, 2005, while studying another series of photographs, Garand was unable to identify the person on Baccarat Street and at Bar RD; (

e) Garand only saw this person from scaffolding at a certain height. He identified Armeni’s motor vehicle only after that event; (

f) There is no evidence that there was a Mazda Miata near Armeni’s home, even though that is what Garand relied on to be able to identify Armeni’s home;

(

g) There is no evidence that Armeni had two pickup trucks, one white and one black; (

h) Garand’s telephone records do not implicate Armeni in a conspiracy; (

i) Only after passing in front of Armeni’s home was Garand able to give physical details of the building; (

j) Police constable Millette stated that he had voluntarily driven Garand toward Armeni’s home; and (

k) Garand was able to identify Armeni in a series of photographs only on June 15, 2006, after having recognized him at his home on December 23, 2005, after going there with the police officers. [ 86 ] Armeni’s complaints are essentially of three types: (

i) Garand cannot properly describe the person he met at Bar RD; (ii) Garand could not recognize the person from Baccarat Street and at Bar RD while viewing photographs on December 12 and 19, 2005; and (iii) The police [ translation] “introduced” Armeni to Garand on December 23, 2005, when they were driving around with him in the area where the appellant lived. [ 87 ] At this stage of my review, I exclude the circumstances related to the December 23 chance encounter, to which I will return later.

That said, the jury had heard Garand’s testimony, which, apart from weaknesses related to his credibility, did not leave any doubt as to the person he had met at Bar RD. Indeed, the evidence does not show anything that would have prevented Garand from having a reasonable memory of this meeting, which, incidentally, was anything but insignificant. [ 88 ] In addition, Garand stated that he had already seen Armeni at the construction site on Baccarat Street.

Nothing in what Garand told the jury on this subject makes it possible to assume that the visual observation made on Baccarat Street could have been affected by physical interference or any other cause. [35] [ 89 ] These different pieces of identification evidence have nothing to do with situations likened to line-up cases.

On the contrary, they show that it was Armeni himself who was present with Garand, both at Bar RD and on Baccarat Street. [ 90 ] Armeni stresses, however, that during the viewing of photographs on December 12 and 19, 2005, Garand was unable to correctly identify the person who had handed over the two sets of keys at Bar RD. [ 91 ] First of all, both during cross-examination and in oral argument, counsel for Armeni made a point of drawing the jury’s attention to the different aspects of the evidence that he considered deficient.

The judge also reminded the jury that Garand had positively identified someone other than Armeni during one of the photograph-viewing sessions.

In addition, the jury could not ignore Garand’s answers to the questions asked by counsel for Armeni on the subject, for instance: [ translation] I am here to tell the truth, and if there was, I made a mistake about the photo because of resemblances, and the truth is that it was not that man that I saw on Baccarat Street, and that is all. … Yes, I told them… yes, it is not new in preparing the identification of that man, I said the same thing to the police officers that I am saying today, there are similarities but it was not that man.

I identified him later in any case in the right photo, but that is not the photo. … Yes, I identified him; given the resemblances, I thought he was that man.

No, because at the time I made that statement, I had identified the photo, I identified that man because of the resemblances; for me, that was him. [36] [ 92 ] The problems with identification experienced during the viewing of photographs on December 12 and 19, 2005, did not taint all of the identification evidence, which included other elements revealing situations in which Garand had positively identified Armeni (meetings at Bar RD and on Baccarat Street). [ 93 ] Furthermore, Armeni argues that the judge implicitly proposed to the jury the presupposition that the person to be identified was Armeni: “The evidence has shown that mister Sylvain Garand, on December 12 th , 2005, identified another person as being mister Vincenzo Armeni”. [37] On the basis of these remarks, I find that the judge simply wished to express the idea that on that occasion, Garand had not managed to identify the person met on Baccarat Street and at Bar RD. [ 94 ] I consider that this error made by the judge, which I would qualify as more of a slip than a decisive error, could not have had, before the jury, the prejudicial effects claimed by Armeni. [ 95 ] He also criticizes the trial judge for not having informed the jury of his concerns about the December 23, 2005, meeting.

Let us briefly recall the events of that day. [ 96 ] Two police officers, Constables Millette and Beaudoin, accompanied by the witness Garand, were driving around in a car in the area where Armeni was assumed to live. The police officers then passed a motor vehicle driven by Armeni. According to the appellant’s argument, the police officers, having recognized him, decided to turn around and drive by his home again, where a black SUV with an open rear hatch was parked. Garand then recognized the man from Bar RD, who was standing right next to the motor vehicle that they had recently passed.

[ 97 ] Armeni alleges being the victim of a set-up, since the police officers simply showed him to Garand; consequently, his identification arises more from the police officers than from Garand’s own independent observation. [ 98 ] The difficulty with this argument is that it is not supported by the evidence. What the jury heard directly from the witnesses Millette (the police officer) and Garand concerning the day of December 23 was that the meeting was a chance encounter and that on that day Garand officially recognized the person he had already seen on Baccarat Street and at Bar RD.

Moreover, the cross-examination of these two witnesses concerning this event in no way challenges the testimony provided during the examination-in-chief. It should also be added that, while Armeni did not have the obligation to testify or summon witnesses, Garand’s entire testimony was never contradicted, even though it could have been. [ 99 ] In short, it would not have been appropriate for the judge to explain an argument with no factual basis in his charge to the jury.

Had he agreed to explain the appellant’s view of the events on December 23, he would have passed judgment on the credibility of Constable Millette by presenting to the jury a conjecture that did not correspond to the testimony provided by this witness.

The judge in fact correctly presented this issue to the jury when he stated the following: With respect to the driving around of mister Garand and mister Millette to locate the house on Princesse Street, there may have been a comment which would lead you to believe that the police officers have shown the house, according to my notes that's not the statement that mister Millette nor mister Garand told the jury, that's for you to decide on the credibility . [38] [Emphasis added.] [ 100 ] I would add that the only request for a correction made by the appellant concerning the instructions on identification evidence was aimed at reminding the jurors that the identification performed by Garand during the viewing of photographs on June 15, 2006, took place after the event of December 23, 2005. [ 101 ] And indeed, this correction was made by the judge, as the defence requested.

The judge was not asked to further clarify this issue, however. It was up to the defence to raise a clear and specific objection as to what it considered determinative in the judge’s instructions on the identification evidence. The lack of objection other than that previously mentioned is in my view significant considering the minor so-called irregularities that Armeni raises on appeal. [39] [ 102 ] In short, I am of the view that the warning as to the identification evidence was adequate and that it sufficiently alerted the jury to the danger associated with this type of evidence.

This ground must therefore fail. iii. Reasonable doubt [ 103 ] The appellant criticizes the judge for not having told the jury about the absence of some evidence that be believes would have given rise to a reasonable doubt. More specifically, he alleges that: A. The Crown’s evidence does not show the identity of the person who was mistakenly recognized by Garand as being Armeni during the first photographic identification session; B. No evidence was adduced by the Crown connecting Armeni to the two pickup trucks (“…associated or in possession of two pickup trucks”); C.

No evidence was adduced concerning Armeni’s finances, which allegedly permitted him to engage in the criminal activity with which he was charged. [ 104 ] It should be noted first that the Crown’s burden of proof is to prove the elements of the offence with which the accused is charged beyond a reasonable doubt, not to anticipate the arguments of the accused, who would like to have the case presented from a different angle. [40] [ 105 ] In adducing its evidence, it was not the role of the prosecution to foresee the more or less relevant objections of Armeni.

It was up to the jury to assess the probative value of the Crown’s evidence and to decide whether it was convinced, beyond a reasonable doubt, that Armeni was guilty. [ 106 ] I am of the view that the instructions given to the jury about the concept of reasonable doubt are flawless.

Furthermore, at the request of counsel for the appellant, the judge specifically added: That being said I also wish to underline that you must refer to the direct evidence and circumstantial evidence to conclude on the guilt or the absence of guilt of the accused, but you can also consider the absence of evidence to conclude with your verdict. [41] [ 107 ] Although the judge urged the jury also to consider the consequences of the absence of evidence with regard to any of the essential elements of the offences with which Armeni was charged, he could not encourage them to speculate on assumptions, [42] and he was under no obligation to adopt arguments presented by Armeni that did not seem as determinative to him as they did to Armeni himself. [ 108 ] Therefore, I am of the opinion that this third ground must also fail.

THE SENTENCES [ 109 ] On October 19, 2007, Armeni was sentenced to a total of nineteen years’ imprisonment. At the time of his arrest on May 30, 2006, on the charges in this file, he was on parole after having been convicted of conspiracy to import drugs and drug trafficking and

sentenced to ten years’ imprisonment on October 5, 1998. His parole was therefore revoked. [ 110 ] I note that the evidence showed that on July 28, 2005, Armeni handed over the keys to two pickup trucks containing a total of 761 kilos of cocaine. Four and a half months later, during a search at Blainville, 241 kilos of cocaine were found in the basement of the house rented by Garand. [ 111 ] Armeni proposes that a total of nineteen years’ detention constitutes unreasonable punishment. [ 112 ] In R. v.

L.M. , [43] the Supreme Court urged appellate .courts in such cases to show great deference when reviewing a trial judge’s decision. Unless the sentence is clearly excessive or much too lenient, an appellate court should defer to the discretion of a judge who saw the accused and was in a good position to determine the appropriate punishment. [ 113 ] This rule was reiterated by this Court in J.D. v.

R . , as follows: [ translation] This deference is particularly justified when, as in the present case, the sentencing judge has had the benefit of presiding over the trial of the offender because he has had “the comparative advantage of having seen and heard the witnesses to the crime.” [44] [ 114 ] From what was adduced by the Crown during the sentencing hearing, I accept some evidence for which there was no contrary evidence: (

a) According to an expert in these matters (Suzanne De Larochelière, S.Q.), the drugs seized in Blainville were 85% pure; (

b) Such a level of purity is usually found only in cases where the cocaine is bought directly from the supplier; (

c) The drugs seized could have netted profits of $16 million, and revenues of over $50 million could be projected for 761 kilos of cocaine; (

d) The amount of cocaine seized in Blainville was larger than any other amount seized in Canada in 2006; and (

e) At the time of the offences, the accused was on parole following a conviction for which he had been sentenced to ten years’ imprisonment for conspiracy to import drugs and drug trafficking. [ 115 ] Armeni’s criminal record should also be mentioned: • April 18, 1980: Possession of drugs for the purposes of trafficking. Sentence: four years and two months’ detention. • October 31, 1986: Conspiracy and possession of a prohibited weapon. Sentence: Sevens years’ detention. • November 24, 1986: Conspiracy to traffic drugs and trafficking of drugs.

Sentence: Six years’ detention. • October 5, 1998: Conspiracy to import drugs and importation of drugs. Sentence: Ten years’ detention. i. Unreasonableness of the sentence [ 116 ] The appellant argues that the global sentence imposed on him is for the offence of importation of drugs, whereas he was convicted only of the offences of possession and trafficking of cocaine.

The judge dealt with this issue as follows: [38] Although, Mr Armeni was not convicted of the offence of importation of cocaine and although the Court agrees with the defence that there was no evidence of any sophisticated network nor any evidence of any financial gain by Mr Armeni nor any evidence of direct relationship with the suppliers of the drug in the foreign country, the Court is nevertheless of the opinion that the huge quantity of drugs, it’s high purity level and the circumstances of this case bring by inference Mr Armeni much closer to the supplier than that of a simple trafficker on a “kilo basis” on the street. [45] [ 117 ] It is not sufficient to simply claim that the sentence imposed on an offender differs from some standard for it to be found unreasonable; it must also be unjustifiable in light of the circumstances of the case.

In sentencing, the discretion conferred on trial judges is unrestricted, apart from the guidelines set by Parliament. [ 118 ] In rendering his decision, the judge essentially applied the purposes and principles of sentencing set out in

section 718 Cr. C. and following. [ 119 ] Since the evidence on sentencing reveals no mitigating factors, the judge referred only to aggravating factors, which in the present case are quite significant. First, it was open to him to infer that the large quantity and the purity of the drug seized suggested

high-level transactions with the underworld, which also presupposed a degree of sophistication exceeding that of a simple drug dealer. As already stated, these inferences are drawn from uncontradicted expert evidence. [ 120 ] Armeni’s situation thus differs significantly from that of usual traffickers. Indeed, it situates him rather closer to the other end of the spectrum, and the quantity and quality of the drug seized mean that the appellant is an actual wholesaler.

In this regard, I find no error in principle when the judge places Armeni in a category akin to that of an importer of drugs, if only because of the tremendous profit expected from the sale of such a huge quantity of cocaine. [ 121 ] Armeni’s criminal record is also a highly significant aggravating factor, which shows his lack of resolve to mend his ways even though he had previously served long prison sentences, many of them for the same type of offence, his most recent sentence being for a term of ten years.

To this grim picture can be added the fact that these offences were perpetrated while the appellant was on parole, which is also an aggravating factor . [46] Under the circumstances, the judge can hardly be criticized for having favoured the factors of denunciation and deterrence over that of rehabilitation. [ 122 ] Armeni argues that the sentence he received is normally reserved for drug importers.

This submission minimizes the importance of the aggravating factors that differentiate this case from less serious cases, such as the purity of the cocaine and the inferences that may be drawn therefrom, the fact that the resulting sales would generate over $50 million in revenue, and the fact that the amount of cocaine seized in Blainville was larger than any other drug seizures in 2006.

In short, the evidence showed that in terms of drug trafficking, the crimes with which Armeni was charged were inherently very serious, if not the most serious. [ 123 ] It is widely acknowledged that cocaine trafficking continues to cause considerable harm in all walks of life despite serious efforts by the authorities to stop it. The courts should therefore crack down on this criminal activity. Apart from special circumstances, harsh sentences are justified in such matters by the need to deter all those who would be tempted to help perpetuate this scourge.

In this regard, I consider it worthwhile to quote Chamberland J.A. in R. v. Mantha : [ translation] [143] The sentence is harsh. The judge wishes to hold it up as an example for those who might be tempted to engage in such activities. It is definitely not a mistake. The damage caused by drug trafficking, and especially by cocaine trafficking, is indisputable.

It is a “scourge of society”, and the message from the courts must be “unequivocal.” [47] [Citations omitted.] [ 124 ] Although the global sentence imposed on Armeni is harsh, I am not persuaded by the appellant that it was unreasonable to the point of justifying the Court’s intervention. The specific circumstances of this case (a recidivist criminal who refuses to mend his ways and from whom the public must be protected) called for a substantial sentence. ii.

Consecutive sentences [ 125 ] The trial judge ordered that Armeni’s sentence be served consecutively to another prison term that he was already serving, which was to end on October 4, 2008. Therefore, the sentence imposed on October 19, 2007, began to take effect only the following year. [ 126 ] At trial, Armeni argued that he was entitled to a credit for pre-sentencing custody that was equal to the period during which he returned to prison when his parole was revoked.

The judge rightly found that this detention and the crimes at issue were not related and that there was no reason to grant credit for this detention. [48] [ 127 ] Armeni has not shown that the judge erred in principle in the exercise of his discretion by ordering that the sentences be served consecutively to another sentence imposed at an earlier date for different criminal activities.

An appellate court’s review of a trial judge’s decision to impose a consecutive or a concurrent sentence should show the same deference as an appellate court’s decision on the reasonableness of its length. [49] CONCLUSION [ 128 ] Therefore, I would dismiss the application to adduce fresh evidence, as well as the appeal from the verdicts and the appeal from the sentences. GUY GAGNON, J.A.