2011 QCCA 790, 2011 QCCA 790

Unofficial English Translation Baribeau c. R. 2011 QCCA 790 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002605-108 (605-01-007161-106) DATE: April 27, 2011 PRESIDED BY: THE HONOURABLE LORNE GIROUX, J.A. STÉPHANE BARIBEAU PETITIONER - accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The petitioner, who now represents himself, seeks leave to appeal on grounds that include questions of fact from a judgment of the Court of Quebec (the Honourable Judge Lucille Chabot) rendered on November 25, 2010, which convicted him of possession of cannabis with intent to traffic. [ 2 ] In the present case, possession and the nature and quantity of the substance were admitted. The only issue that remains in dispute is whether there was intent to traffic. The trial took place on November 12, 2010.

On November 25, the judge rendered judgment, the transcript of which is 21 pages long. The petitioner had legal representation at trial. [ 3 ] After a careful analysis of the evidence adduced before her, the trial judge rendered a guilty verdict. The main reasons for that verdict are found in the following paragraphs: [translation] In short, the Court does not believe the accused, his testimony, or its content. His omissions and some of his statements, which are contrary to common sense, make it so that they do not raise a reasonable doubt in the Court's mind.

As for the Crown, did it prove the essential elements of the offence beyond a reasonable doubt? In this case, possession of the substance is admitted as well as its nature. The accused was well aware of the nature of the substance. The only issue in dispute is the intent to traffic. Chan also indicates that although the quantity is not an element of the actus reus , it may nevertheless serve to infer the intent of the accused.

In this case, an inference may be drawn from several elements: the presence of over one pound (1 lb) of cannabis in sealed bags, the electronic scale in the living room with cannabis residue on it, the box of snack-sized Ziploc bags in the living room, the snack-sized bag of cannabis found on and seized from a person leaving the home of the accused, the money kept in a similar sized bag, which was soiled and contained traces of cannabis, the testimony of Officer Dionne, who indicated that the size of the bags is unusual and is not generally found on the streets.

From these facts, there is only one reasonable inference to be drawn that is in keeping with the evidence, that is, the intent to traffic. DECISION Consequently, Mr. Baribeau, you are convicted of the offence. [ 4 ] The petitioner first criticizes the judge for having erred in deeming it unlikely, because of his job, that he is merely a cannabis user. [ 5 ] On this first ground, the accused testified and explained that the cannabis found in his home was exclusively for his personal use. In his opinion, he consumed three to four grams on a daily basis between 8 p.m. and bedtime.

He also declared that he operated, without any employees, an electronic appliances repair business that was open from Monday to Thursday between 9:30 a.m. and 5:30 p.m., while Fridays and Saturdays were devoted to home service. [ 6 ] It was certainly the judge’s prerogative to assess, as she did, the credibility and likelihood of the explanations given by the

petitioner regarding his personal consumption. This is what the following passage from her judgment reveals: [translation] Even though the accused acknowledges that he uses cannabis and stated, at the outset of his testimony, that he had addiction issues, he maintains that he was capable of not using for periods of time. That being said, prior to the search performed on June 23, he was consuming three (3) to four (4) grams in very short periods of time, that is, between 8 p.m. and bedtime.

For someone who must get up in the morning to open his business, it appears to be a large quantity to use in such a short period of time.

More surprising is the fact that he claims to have had no physical symptoms of withdrawal, and no need to resort to any kind of therapeutic help whatsoever. [ 7 ] Moreover, as a reading of the well-reasoned judgment reveals, this is only one of the elements accepted by the judge to assess the likelihood of the petitioner's theory. [ 8 ] The petitioner then criticizes the judge for having erroneously drawn an inference of guilt from the petitioner's failure to provide an explanation with respect to some elements of the evidence, even though he was not questioned about them at trial.

Among these elements, the most important is the electronic scale that was found in the petitioner's home and on which cannabis residue was found. [ 9 ] The petitioner admitted that the scale was his, and the judge considered this element of evidence when assessing the petitioner's credibility with respect to his claim that the cannabis found in his home was for his personal use: [translation] Thus, even a small quantity could lead to this type of charge and to a conviction. It all depends on the facts and on the evidence. In this case, the accused insists that the substances were for his personal use.

The Court has had the chance not only to hear the accused, but also to see him testify. His words are eloquent, but his omissions even more so. For example, at no point did he choose to explain the electronic scale with cannabis residue that was found in his living room. Thus, the evidence given by Officer Dionne and accepted by the Court is uncontradicted evidence with respect to the presence of residue on the scale. We must also remember that the accused indicated on cross-examination that he does not weigh his food. It is unusual to find this type of appliance in a living room.

It would be difficult to pretend or to think that this type of accessory is used for mere use. [ 10 ] The electronic scale, like other objects mentioned by the petitioner, was a physical piece of evidence in his possession. The judge was entitled to take it into account as one element amongst many that could serve as a basis to assess the credibility and ultimately the guilt of the petitioner, even though no other questions were asked at trial on the matter.

In addition, with respect to the electronic scale in particular, counsel for both the petitioner and the Crown discussed it at length in their final arguments. [ 11 ] The other grounds of appeal raised by the petitioner in his amended motion concern only issues with the trial judge's assessment of the evidence and of the credibility of the witnesses. Counsel for the petitioner had the opportunity to cross-examine all the witnesses for the prosecution and to point out all the inconsistencies and contradictions that could be revealed by their testimony.

It is not the Court of Appeal's role to re-try the case, as the petitioner would have us do. [ 12 ] The grounds of appeal do not reveal any palpable and overriding error in the judge's assessment of the evidence or any subversion of evidence whatsoever, as the petitioner would now have us believe. [ 13 ] Consequently, the grounds of appeal raised by the petitioner do not show that the trial judge committed an error of fact and do not justify that this Court grant leave to appeal pursuant to section 675(1) ( a )(ii) of the Criminal Code .

FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] DISMISSES the motion for leave to appeal; LORNE GIROUX, J.A. Stéphane Baribeau Not represented Mtre Marie-Chantal Brassard Criminal and penal prosecutor For the Respondent Date of hearing: April 21, 2011