2010 NBCA 90, 2010 NBCA 90

COURT OF APPEAL OF NEW BRUNSWICK 16-10-CA MICHAEL BOWLIN APPELLANT MICHAEL BOWLIN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Bowlin v. R., 2010 NBCA 90 Bowlin c.

R., 2010 NBCA 90 CORAM: The Honourable Justice Deschênes The Honourable Justice Robertson The Honourable Justice Richard CORAM : L’honorable juge Deschênes L’honorable juge Robertson L’honorable juge Richard Appeal from a decision of the Court of Queen’sBench: December 15, 2009 Appel d’une décision de la Cour du Banc de la Reine: Le 15 décembre 2009 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 59 Décision frappée d’appel : 2010 NBQB 59 , 2010 NBBR 59 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: October 28, 2010 Appel entendu et jugement rendu : Le 28 octobre 2010 Reasons delivered: December 16, 2010 Motifs déposés : Le 16 décembre 2010

Counsel at hearing: For the appellant: Martin D. Fineberg For the respondent: Leonard J. MacKay Avocats à l’audience : Pour l’appelant : Martin D. Fineberg Pour l’intimée : Leonard J. MacKay THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by DESCHÊNES, J.A. I. Introduction [1] Following a trial by judge and jury, Michael Bowlin was found guilty of trafficking in cocaine, contrary to s.5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He appeals his conviction on two grounds.

First, he alleges the trialjudge committed reversible error by failing to follow the prescribed jury charge for circumstantial evidence in Hodge’s Case (1838),(FOREP), 2 Lewin 227, 168 E.R. 1136. Second, he submits the judge caused a miscarriage of justice by providing thejury with a partial written instruction after delivering a complete oral instruction. [2] On October 28, 2008, Mr. Bowlin’s appeal was dismissed from the bench with reasons to follow. Here arethose reasons. II. Factual Background [3] An undercover police agent became a regular customer at a pub in Saint John, N.B.

On a few occasions, heasked for and was supplied with cocaine for a sum of $160.00 from the same waitress. On October 2, 2008, he again asked the waitressfor cocaine, and after telling him she had to call someone, she placed two phone calls and then informed the agent the delivery would bemade within 15 minutes. Some 30 minutes later, the appellant showed up, came to the bar, grabbed a cup and put something in it. Thewaitress took the cup from the appellant and placed it under the counter. She addressed him as “Mike” and asked how much she owedhim.

He told her she was busy and he would take care of business later. Shortly thereafter, the waitress told the agent his “stuff” hadarrived and she would look after him as soon as she could. Sometime later, she grabbed something from under the counter where the cuphad been placed earlier, entered a washroom, then came out, and delivered the cocaine by inserting it into the agent’s package ofcigarettes. [4] At trial, the agent testified he could not identify the object put in the cup.

Further, the defense adducedevidence that the waitress and the appellant had been involved in a romantic relationship prior to October 2, 2008, and may well havebeen living together as a couple on that particular date. This circumstance increased the possibilities of what the appellant might

reasonably have delivered to his girlfriend. [ 5 ] The trial judge’s instructions to the members of the jury consisted of a complete charge with a comment that they would also be provided with written instructions mainly directed at the “essential elements of the offence”. III. The Trial Judge’s Oral and Written Instructions on the Issue of Circumstantial Evidence and Reasonable Doubt [ 6 ] At the hearing, the appellant abandoned the ground of appeal challenging the trial judge’s instructions to the jury concerning the appellant’s identity as the person who put some object in a cup.

Accordingly, the only major question for the jury to decide was whether the Crown had established, beyond a reasonable doubt, that what the appellant had put in the cup was in fact the cocaine that was eventually supplied by the waitress to the undercover agent. That critical connection stands to be established on the basis of circumstantial evidence. In his oral instructions to the jury, the trial judge dealt with the matter in the following terms at different times during his address: Now, some of you have heard the terms direct evidence and circumstantial evidence. Mr. – Mr.

McCracken mentioned – mentioned circumstantial evidence in – in his summation. And as I said to you earlier, and he repeated, you can believe or rely upon either type of evidence as little or as much as the other when you’re deciding the case. Sometimes a witness tells us what they personally saw or heard – for – and the example I gave you earlier is when somebody says that it’s raining outside, and that is direct evidence.

Often, however, witnesses say things from which you are asked to draw certain conclusions, for – and the example again is the witness may say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believe that witness you might conclude that it was raining outside, even though the evidence was indirect, and that’s what we call circumstantial evidence. In making your decision both kinds of evidence count; the law treats both equally. Neither is necessarily better or worse than the other.

In each case your job is to decide what conclusions you will reach based on the evidence as a whole, both direct and circumstantial. Again, use your common sense and your experience in assessing the evidence. [...] Now, for you to find Mr. Bowlin guilty of trafficking in cocaine the Crown must prove each of these essential elements of that offence beyond a reasonable doubt: First, that Michael Bowlin trafficked in a substance; secondly, that the substance was cocaine; thirdly, that Mr. Bowlin knew that the substance was cocaine; and fourthly, that he intentionally trafficked in cocaine.

Now, as I’ve indicated to you earlier, this is the portion of my charge that I’m going to send to the jury room with you; there will be a copy for each of you. If the Crown has not satisfied you beyond a reasonable doubt of each of these essential elements of the charge, then you must find Mr. Bowlin not guilty of trafficking in cocaine. If the Crown has satisfied you beyond a reasonable doubt of each of these essential elements then you must find him guilty of the charge. [...] The defence theory of this case is that the Crown has failed to prove Mr.

Bowlin’s guilt beyond a reasonable doubt – they – in – in two ways, and they – and they target – first of all they say that the Crown has failed to prove that the accused was in fact the individual referred to as Mike in – in the evidence given by either Corporal MacQueen or Constable Flynn in this matter. So that’s identity. [...] As Mr.

Ritchie also said to you, the – the defence submits that the Crown has failed to prove beyond a reasonable doubt any nexus, any connection, between the alleged delivery of a cup, which may or may not have contained anything, from the – from the individual known as Mike to Tammy Blinn, and the alleged exchange between Corporal MacQueen and Tammy Blinn later that same evening.

There – there was a – a time gap of I believe it was 35 minutes from the time Mr. – or – or the – the individual came into the bar, which was 9:10 according to Corporal MacQueen, and the time that cocaine was delivered to Corporal MacQueen, which I believe was 9:45. So, the defence says there is no actual connection between those two events in any event.

So, even if you – even if you don’t have a problem with the issue of identity, there – there’s not enough proof beyond a reasonable doubt that the cocaine that ended up in the hands of Corporal MacQueen had anything to do with the passing of a cup on – on the bar 35 minutes earlier.

Based on that, the – the defence submits that these two issues are law of evidentiary issues for you to decide, and the defence theory is that the Crown hasn’t proven either of them beyond a reasonable doubt and either of them – if – if you find – if you agree with either of those submissions by the defence, then you would have to find Mr. Bowlin not guilty.

[...] There will be – there is a copy of my instructions on the elements of the offence for each of you. [...] A controlled substance is any substance that a person cannot legally buy, sell, or possess without government authorization.Cocaine is a controlled substance. The evidence of Corporal MacQueen is that he had asked Ms. Blinn to get some cocaine. […] At 8:34p.m. she made a call and then told him that it would be there in about 15 minutes. At about 9:10 p.m., 36 minutes later, Mr. Bowlin cameto the tavern, sat at the bar near Ms. Blinn, took a plastic cup and put something in it.

Corporal MacQueen didn’t know what Mr. Bowlinput in the cup that he gave to Ms. Blinn. Ms. Blinn then put the cup under the counter and came over to Corporal MacQueen and told himthat she had his stuff and would get it to him later as she was busy. She then took something from near where she had put the cup behindthe bar and went into a washroom. About half an hour later she took Corporal MacQueen’s cigarette package and put the substance in itthat was later analyzed as cocaine. In considering this element of the offence you must decide whether or not you are satisfied beyond areasonable doubt that Mr.

Bowlin provided the cocaine that Ms. Blinn put in Corporal MacQueen’s cigarette package. On the evidence in this – in this case you should consider whether the Crown has proven beyond a reasonable doubt that whatMr. Bowlin passed to Miss Blinn was cocaine. Mr. Turner’s evidence [a defence witness] is that they were romantically involved and at one time lived together, though it’s not clear they were doing so on October 2nd, 2008. If you accept that evidence you could concludethat it is also possible that Mr.

Bowlin was delivering a prescription for her, or something from her apartment, or that he put a note forher in the cup, or something similar. If it was something like a prescription, that could explain why she asked how much she owed him. […] If you are not satisfied beyond a reasonable doubt that the substance in which Mr. Bowlin trafficked was cocaine then you must find himnot guilty; your deliberations would be over.

If you are satisfied beyond a reasonable doubt that the substance was cocaine, you must goon to the next question. [7] During both the oral and written instructions, the trial judge instructed the jurors that the Crown had to prove,beyond a reasonable doubt, each of the essential elements of the offence before they could reach a guilty verdict. He also explained thatif the Crown had not satisfied them beyond a reasonable doubt of each of these essential elements, they had to find the appellant notguilty of trafficking in cocaine. IV.

The Appellant’s Arguments Concerning the Jury Charge on Circumstantial Evidence and Reasonable Doubt [8] The appellant contends that in a case where one of the main questions to be determined is whether an accusedperformed the “act” of delivering the cocaine (in other words, whether the appellant actually put cocaine, rather than some otherinoffensive object, in the cup that the waitress placed under the counter), it is an error of law for the trial judge to fail to instruct the jury“that they [have] to be satisfied beyond a reasonable doubt that the only rational inference or explanation that they could draw from thecircumstantial evidence [is] that the appellant [is] guilty”.

In support of this proposition, the appellant relies upon R. v. Griffin, 2009 SCC28, [2009] 2 S.C.R. 42: We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one ofidentification: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantialevidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inferencethat can be drawn from the circumstantial evidence is that the accused is guilty.

Imparting the necessary message to the jury may beachieved in different ways: R. v. Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v.Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), (ON CA), 142 C.C.C. (3d)380 (Ont. C.A.), at para. 29. [para. 33]

The appellant argues it is not sufficient to instruct a jury that it can only convict if satisfied beyond a reasonable doubt that each essentialelement of the offence has been proven; in addition, it should be told that circumstantial evidence can only satisfy a juror beyond areasonable doubt if guilt were the only reasonable inference to be drawn from the proven facts. [9] In this case, the trial judge explained the difference between direct and circumstantial evidence, but at no timedid he inform the jury that it had to be satisfied beyond a reasonable doubt that the only rational inference or explanation it could drawfrom the circumstantial evidence was that the appellant had put cocaine in the cup.

On that point, the trial judge did refer the jury to theevidence that the appellant and the waitress were involved in a romantic relationship, that it was open to the jury to “conclude that it isalso possible that Mr. Bowlin was delivering a prescription for her, or something from her apartment, or that he put a note for her in thecup, or something similar”, and that “[i]f it was something like a prescription, that could explain why she asked how much she owedhim”. Those remarks were closely followed by the following instructions: “If you are not satisfied beyond a reasonable doubt that thesubstance in which Mr.

Bowlin trafficked was cocaine, then you must find him not guilty; your deliberations would be over”, but “[i]fyou are satisfied beyond a reasonable doubt that the substance was cocaine, you must then go on to the next question”. V. Analysis and Decision A. The charge on the issue of circumstantial evidence [10] The appellant’s argument before us is nothing less than an attempt to have this Court adopt a formulaicapproach to a jury instruction in cases where the Crown relies upon circumstantial evidence to prove an essential element consisting ofan “act” of the accused (as opposed to proving criminal intent).

That approach has long been discarded in favour of one that accordsconsiderable discretion to the trial judge to deal with cases grounded on circumstantial evidence in terms of the general principles ofreasonable doubt (see R. v. Tombran, (ON CA), [2000] O.J. No. 273 (C.A.) (QL), at para. 29). [11] It is true that in R. v.

Griffin, at para. 33, trial judges are informed that “the essential component of aninstruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubtthat the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”. As far as the appellant isconcerned, this is an indication that those words, or words to that effect, must be used when instructing the jury on circumstantialevidence.

However, the Court in Griffin goes on to explain that “[i]mparting the necessary message to the jury may be achieved indifferent ways” and specifically refers with obvious approval to the language used in R. v. Fleet, (ON CA), [1997] O.J.No. 4553 (C.A.) (QL), at para. 20; R. v. Guiboche, 2004 MBCA 16, [2004] M.J. No. 43 (QL), at paras. 108-10; and R. v. Tombran, atpara. 29. [12] Fleet, Guiboche and Tombran, and the specific paragraphs in those three cases mentioned by Charron J. inGriffin, inform us of the “different ways” to achieve the stated objective.

In Fleet, the Court held: Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidenceto that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, forexample, by:

a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);

b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should bedrawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judgedid in Cooper in the final portion of his recharge); or

c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to bedrawn from the proven facts (per Ritchie J. in Cooper ...) [para. 20].

[ 13 ] In my respectful view, the trial judge chose to charge the jury in accordance with the traditional language of proof beyond a reasonable doubt. But in so doing, he also pointed out to the jury that other possible inferences could be drawn from the evidence, (i.e. prescription drugs or other inoffensive objects), and that if those other inferences raised a reasonable doubt about whether the object placed in the cup was cocaine they must acquit.

That approach is the one described in clause b) referred to in paragraph 20 of Fleet and one that, in my view, is given unequivocal approval in Griffin . [ 14 ] This ground of appeal is without merit. B. The alleged error of providing the jury with a partial written instruction [ 15 ] The appellant's main contention, relying on R .v. Allen , 1999 BCCA 117 , [1999] B.C.J.

No. 488 (QL), is that “in providing the jury with a portion of the instructions to the jury, that portion being in writing, had the effect of causing the jury of paying more attention to the instructions as opposed to all of the oral instructions provided to it” (para. 63 of Appellant’s Submission).

With all due respect, there is no merit in that contention for many reasons. [ 16 ] One is entitled to question the advantages of providing the jury with written instructions in addition to a complete and well thought out oral charge given just minutes earlier, particularly in a trial like this one which was neither complex nor lengthy.

That being said, the jurors were alerted on two different occasions to the fact they were going to be provided with a written copy of the part of the oral instructions dealing only with the essential elements of the offence, which would outline how they might consider these elements in an orderly manner. [ 17 ] The appellant concedes the trial judge also told the jurors that they had an obligation to take into account the entire body of evidence as well as the two sets of instructions.

Perhaps more importantly, the appellant failed in his attempt to convince us that the oral and written instructions contained any reversible errors, which was not the case in Allen . In that case, the written instructions contained a critical error as opposed to the error-free oral instructions.

It is in that context that the Court in Allen expressed the view that “one cannot be confident that the jury would not pay more attention to the instructions in writing as opposed to oral instructions” (para. 8). [ 18 ] In the case at hand, the appellant took no issue with the written instructions to be provided to the jury and there is absolutely nothing before us to support the view that the jury may have been misled by the written instructions provided on the essential elements of the offence.

I am of the view that the instructions to the jury, oral and written, provided the jury with all they needed to understand the nature of their task and how to carry it out. There is nothing before us to suggest that the appellant might have suffered some prejudice as a result of providing the jury with such written instructions. [ 19 ] There have undoubtedly been cases and there will continue to be cases where prejudice can be shown by a decision to provide the jury with a written portion only of the oral instructions.

This was not such a case. [ 20 ] Parenthetically, it should be mentioned that the written instructions provided to the jury have found their way in the Appeal Book and before this Court through a process that is not authorized. Indeed, contrary to the instruction of this Court in Winmill v. R. , 2008 NBCA 88 , 338 N.B.R. (2d) 328, at paras. 1 and 34 (Richard J.A. writing for the Court), an exact copy of the written instructions provided to the jury were not made part of the trial record so as to dispel any uncertainty that might arise on appeal.

The need for a permanent record of written materials provided to jurors cannot be overemphasized (see also R. v. McNeil , [2006] O.J. No. 3989 (C.A.) (QL) ).

Fortunately for all of us, the Crown and the defence agreed that the written instruction contained in the Appeal Book is in fact a copy of what the trial judge provided to the jury. [ 21 ] During the hearing, we also informed the appellant we saw no merit in the last argument raised in his submission – that the appellant had assuredly suffered some prejudice because of several references by the trial judge in his oral instructions identifying the appellant as a person who “trafficked in cocaine”.

Bearing in mind that the appellant was charged with trafficking in cocaine, it is not surprising that at certain moments during the oral instructions dealing with the essential elements of the offence that the appellant would be referred to as one who trafficked in cocaine. On this point, the trial judge made the following relevant remarks which constitute a complete answer to the appellant’s concerns: Now, when I say as I go through this that he trafficked in cocaine, I’m not telling you that that’s what he did, but by the time you get to

this question, if you do get to this question, you’ll have already decided the previous questions, and one of them would be that he trafficked in cocaine. […] So, please don’t take me wrong when I say that in these instructions [...]. VI. Disposition [ 22 ] The trial judge followed the correct principles set out by the Supreme Court of Canada in Griffin for delivering an oral charge to the jury on circumstantial evidence.

He committed no reversible error by not holding to the formula detailed in Hodge ’s Case , nor did he cause a miscarriage of justice by including partial written instructions to the jury in addition to his complete oral instructions. For the above reasons, the appeal was dismissed from the bench. ___________________________________ ALEXANDRE DESCHÊNES, J.A. WE CONCUR: _____________________________________ J.T. ROBERTSON, J.A. ______________________________________ J.C. MARC RICHARD, J.A.