2012 NBCA 23, 2012 NBCA 23

COURT OF APPEAL OF NEW BRUNSWICK 10-11-CA MICHAEL DAVID SOMERVILLE APPELLANT MICHAEL DAVID SOMERVILLE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Somerville v. R., 2012 NBCA 23 Somerville c.

R., 2012 NBCA 23 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: October 7, 2010 (conviction) November 12, 2010 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 7 octobre 2010 (déclaration de culpabilité) Le 12 novembre 2010 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 379 - Unreported Décision frappée d’appel : 2010 NBBR 379 - Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 29, 2011 Appel entendu : Le 29 septembre 2011 Judgment rendered: March 1, 2012 Jugement rendu : Le 1 er mars 2012

Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green Counsel at hearing: For the appellant: Michael David Somerville appeared in person For the respondent: David Schermbrucker Avocats à l’audience : Pour l’appelant : Michael David Somerville a comparu en personne Pour l’intimée : David Schermbrucker THE COURT The appeal against conviction is dismissed.

The application for leave to appeal sentence is allowed, but the appeal against sentence is also dismissed. LA COUR Rejette l’appel formé contre la déclaration de culpabilité, accueille la demande d’autorisation d’appeler de la peine, mais rejette également cet appel. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] On October 7, 2010, a jury found Michael David Somerville guilty of conspiracy to produce cannabis (marihuana), an offence set out in s. 465(1) (

c) of the Criminal Code . On November 12, 2010, the trial judge sentenced him to a 12-month term of imprisonment to be served in the community, under specified conditions, and to probation for two years. The trial judge also issued ancillary orders. Mr. Somerville appeals conviction and seeks leave to appeal his sentence. [2] Mr. Somerville defended himself at trial and represented himself on appeal. His sole ground of appeal reads as follows:

I am innocent. I never grew pot with or for anyone except for myself. I use pot to self-medicate against the effects of psoriatic arthritic (sic). I have had this disease for 20 plus years. The 48 plants were not mine and I still can’t believe I was found guilty. […] […] […] I told the Jury that I had been growing pot for 20 years and didn’t want or need any partners. I think this and other things made the Jury think that I was a bad person and wrongfully find me guilty. [3] In my view, this ground of appeal is devoid of merit. Mr.

Somerville seems to believe that for him to be found guilty there had to be evidence the plants were actually his. However, in a charge of conspiracy to produce an illegal substance, it does not matter who has ownership or even possession of the illegal product. As to the argument regarding medicinal use, this really has no bearing on the conspiracy charge. In any event, there was no evidence Mr. Somerville was lawfully entitled to engage in production for that purpose. [4] Because Mr. Somerville was self-represented, we allowed him to advance further grounds at the hearing of the appeal.

In the course of argument, Mr. Somerville raised a variety of other points, several of which can be summarily dismissed, as they essentially invite the Court of Appeal to re-try the case. As has been stated time and again, this is not the role of an appellate court. The factual determinations in this case were made by a jury and our review of the record reveals the verdict was reasonable. There are, however, two issues diligently identified by counsel for the Attorney General in his submission, and addressed during argument, which warrant closer scrutiny.

The first relates to information given to the jury that other members of the conspiracy had already been convicted, and the second concerns the testimony of an expert witness. II. Factual Background [5] The indictment against Mr. Somerville charged him with having unlawfully conspired, with Allan Henry Albert, Caleb Richard Joseph Merzetti and other persons unknown, to produce cannabis (marihuana), between June 25, 2008 and February 11, 2009.

The evidence at trial consisted of 18 private communications intercepted in the course of an unrelated investigation, surveillance and the results of a search executed pursuant to a warrant. Mr. Somerville did not testify but, as a self-represented accused, argued to the jury there was no conspiracy.

[6] In setting out the facts that are relevant to address the two issues counsel for the Attorney General identified as perhaps requiring appellate scrutiny, I borrow most liberally from his written submission, which contains an accurate and useful

summary of the evidence led at trial. [7] Constable Tom White, a 13½ -year veteran of the RCMP with 4½ years of experience with the Saint John Drug Section, testified he was involved in a drug trafficking investigation involving several local police forces, which began in June 2007, and that he was the lead investigator in the file involving Mr. Somerville. One of the targets, Allan Albert, was the subject of a wiretap authorization and his telephone calls were intercepted from July to September, 2008. In the course of this investigation, calls involving a telephone subscribed to Mr.

Somerville were intercepted. [8] Constable White testified that Messrs. Somerville, Albert and Merzetti were all charged with the single count of conspiracy to produce marihuana. He identified certificates of conviction in respect of both Albert and Merzetti, each of whom had pleaded guilty to conspiracy to produce marihuana with Mr. Somerville. These certificates were admitted in evidence. [9] Constable White testified that he had dealt with Mr.

Somerville previously, was familiar with his voice and could identify him as the speaker on each of the 18 intercepted calls the Crown tendered in evidence before the jury. [10] The intercepted calls reveal as follows: • On July 3, 2008, Allan Albert called Mr. Somerville, and asked him, "So how long are you gonna be like I can't, I can't keep revolvin' my fuckin' time around all this shit man holy fuck. What time do ya think you're gonna call me Mike?" Mr.

Somerville replied, "Soon as these fuck's are done here workin' here I'm paying them fuckin', almost two hundred an' fifty dollars an hour." Albert suggested, "...why don't ya just ah, take her to fuckin' town or whatever ya gotta do?" Later on in the call, Albert says, "I can't work in the fuckin' dark man … are ya brain dead? Do ya not understand what we gotta fuckin' do?" Mr. Somerville replies, "[...] I'm not gonna stop them from buildin' a road, for that I'll do it in the dark myself if I have to." • On July 11, 2008, Mr. Somerville called Allan Albert and (in part) Mr.

Somerville said, "[...] pretty thirsty over here I was wonderin' if you'd be able to pick me up a case of beer?" Mr. Somerville later said he was, "Pretty thirsty yeah, I'm dry as a bone. Not … dry as a bone but you know what I mean? [...] Hey man Budweiser." • On July 22, 2008, Mr. Somerville called Allan Albert and (in part) asked, "When ya drive up past the garage there, don't … go that way, go right ta the end a the pit and take a left. [...] Don't go past the garage." Albert asked, "Is buddy with ya?" and Mr. Somerville replied, "Yeah." Albert replied, "Oh man fuck." Mr.

Somerville said, "I'm gonna meet ya down at the trailer there. Just let me know like about half an hour before you get here." Albert replied, " … kinda wanted ta look at ah, your dog […] I wanted ta look at your dogs." • On August 2, 2008, Allan Albert called Mr. Somerville and (in part) Albert asks Mr. Somerville, "Did you ah, have you been checkin' on things? [...] When are you gonna be alone there? [...] Keep an eye on things." • The next day, Allan Albert called Mr.

Somerville and (in part) Albert said, "Who's all there just you and buddy? [...] Get him down over the hill [...] Like whatta ya gonna tell him I'm fuckin', doin' goin' there for? [...] You don't know what ta say to him see he's gonna wonder what I'm ..." • On August 6, 2008, Allan Albert called Mr. Somerville and (in part) Albert asked who was there, and Mr. Somerville replies the girl was there, then Albert said, "The only thing is I don't know how ta turn on your fuckin' tub." Mr.

Somerville said he would "fix that up [...] I'll fix that up so you'll know." Albert said, "So that I can just turn it on? [...] From outside?" • On August 11, 2008, Allan Albert called Mr. Somerville and (in part) said, "What the fuck a ya doin' bringin' her there? [...] you don't understand if somethin' happens ... I lose all this [...] get her the fuck outta here ..." • On August 22, 2008, Mr. Somerville called Allan Albert and (in part) said "There's somebody out back there with a flashlight I'm gonna go check it out right now." Albert asked Mr.

Somerville if he was serious, then said, "Go, get your ... gun and go." • On September 6, 2008, Mr. Somerville called Allan Albert and spoke to Caleb Merzetti on Albert's phone line. In part, Merzetti asked Mr. Somerville, "Did you give those a shake?" and Mr. Somerville replied, "I've been shakin' rockin' and rollin' all fuckin' day ... been a ... like misty kinda fuckin' weird day."

• On September 7, 2008, Mr. Somerville called Allan Albert and (in part) said, " [...] little bit of mold eh." Albert asked, "Ya shake rattle and roll?" and Mr. Somerville replied, "Yeah." • On September 8, 2008, Mr. Somerville called Allan Albert and (in part) Albert asked, "[...] did ya do the shake rattle and roll?" Mr. Somerville said that he did, and that "everything's not super alright but it's alright as it was before like, no where's near as bad [...] it's the same as the other day but a little bit worse." Mr. Somerville then asked when Albert might be able to come over. • On September 9, 2008, Mr.

Somerville called Allan Albert and (in part) said, "I found they got worse overnight though man. [...] Well I was out shake rattlin' and rollin' this mornin' right. ..." Albert and Mr. Somerville talked about three that had spots, and Mr. Somerville asked, "Should I go over, just do those three not the rest 'cause the other ones ... gettin' spots eh." • On September 11, 2008, Mr. Somerville called Allan Albert and (in part) said, “I figure we lost three so far, maybe four.” Mr.

Somerville also told Albert not to go "out there without me though [...] just 'cause of ah, security system there." • On September 11, 2008, Mr. Somerville called Allan Albert and spoke to Caleb Merzetti. Mr. Somerville asked Merzetti to tell Albert to come over, and that, "Tell him he’s fuckin’ hallucinatin’ himself if he doesn't fuckin' come over soon." Merzetti asked if "they need a drink", and Mr. Somerville said that "they need a spray more." He added, "I mean like grey dust fell on the ground, and I saw two plants disintegrate in front a my face.

And if you tell him, I'm fuckin' imagining things ..." • On September 12, 2008, at 6:16 p.m., Allan Albert called an unknown male and (in part) Albert said, "...that guy there ah, fuckin' RCMP big time eh. […] just about fuckin' drove right into our boys." (Constable White testified that on this date the RCMP had executed a search warrant at Mr. Somerville’s.) • On September 13, 2008, Mr. Somerville called Allan Albert and spoke to Caleb Merzetti on Albert's telephone. Mr.

Somerville asked for Al and said it was "Mike, from Kingston", and said to Merzetti, "Okay, listen man [...] tell him not to come out this way. [...] Everything's … gone. [...] It was the cops … came into my house."

• On September 13, 2008, at 5:42 p.m. an unknown male called Allan Albert's phone and spoke to Caleb Merzetti, who said "they […] got it" and "we almost turned in and they were all there like". (Constable White testified that there had been marked police cars at Mr. Somerville’s property the day before.) • On September 13, 2008, at 7:16 p.m., an unknown male called Allan Albert's phone and spoke to Albert. Albert told the unknown male about a "very fuckin' terrible loss let’s put it that way." [11] As each of the intercepted calls was played to the jury, Crown counsel asked Cst.

White to tell the jury what he thought the calls were about. Mr. Somerville objected to this and the trial judge held a brief voir dire in the absence of the jury. The trial judge noted the conversations had been ruled admissible, but expressed the view that the "groundwork" for Cst. White to express his opinions had not been laid. Upon resuming before the jury, Crown counsel continued to play each intercepted calls and to ask Cst. White what he thought each call meant.

After the second call, the trial judge interrupted and pointed out that the Crown had not provided notice of expert witness under s. 657.3 of the Criminal Code . The dialogue before the jury went (in part) as follows: THE COURT: Well, Crown, there has been no – notice expert about coded conversations. MR. MCCRACKEN: No they're – say he – he's either able to – to give this opinion evidence as part of his – from – from his experience, Justice Grant, or – or it's not admissible. I agree. THE COURT: Well, the – the problem is, Mr. McCracken, there wasn't a notice of expert given – MR. MCCRACKEN: Oh no ' I agree.

It's – THE COURT: – that anyone would be giving evidence – MR. MCCRACKEN: He's not – THE COURT: – on coded conversations. MR. MCCRACKEN: It's lay – it's lay opinion if it's admissible at all and – and I'm relying on – on some – some case law and of course but let's – perhaps we can go through the – the intercepted calls and keep this to a minimum 'cause I'm not proposing that he be identified as an expert. I'm simply arguing that he can – he can give this kind of evidence as – because of his – his special training and experience as a lay – as a lay opinion and as you know it's a – it's a limited area but –

THE COURT: Yes. MR. MCCRACKEN: – certainly it's available and the leading case is Grat [sic, R. v. Graat, (SCC), [1982] 2 S.C.R.819] but there – THE COURT: Yes. MR. MCCRACKEN: – are some other cases that – that follow along and – THE COURT: And – and I think perhaps a little – a little more background on – on his experience would – would be in order before he– before he does give that – that evidence. [Trial transcript, vol. 4, pp. 111-112] [12] Crown counsel then elicited details of Cst.

White'sexperience, including his time on the drug section, courses he had taken that dealtwith drugs, and his experience as an undercover officer during which he had to learndrug jargon in order to pretend to be a drug dealer or user. Mr. Somerville asked twobrief questions on cross-examination. The trial judge then allowed Cst. White to givehis opinion, saying: THE COURT: Well, I'm – I'm going to allow him to give his opinion based on his experience but I – at the same time I'm gonna cautionthe jury about coded conversations.

There is an infinite number of possible codes that – that can be used and codes can vary from regionto region and – and certainly from one area of the drug trade to another and while certainly Constable White has demonstrated that he hasa fair bit of – of – of training and while 11 weeks may not seem a whole lot, it's – it's not in – insignificant and I think – I think he doeshave some background and experience to – to express an opinion but that said, I think it's – it's important that you understand that thereare so many permutations and combinations of codes that – that could be in use that you – you have to be very careful about – about thisevidence and – and – and make and – and – and look, I – I don't mean to say it's not reliable evidence but it's – it's evidence that you wantto scrutinize very closely and – and – and be careful not to – to assess it just by itself.

Make sure you assess it and – as you should all theevidence in light of the evidence – the whole of the evidence at the trial including any cross-examination on this evidence so – so I willallow it to that extent, Mr. McCracken. [Trial transcript, vol. 4, pp. 116-117] [13] The following example is typical of the nature of Cst. White'sevidence in this regard. The transcript of a recording of an intercepted telephone callbetween Mr. Somerville and Mr. Albert on July 22, 2008, at 10:53 p.m. reads asfollows: ALBERT: Hello. SOMERVILLE: Hello. What it is… ALBERT: (_)…

SOMERVILLE: When you drive … ALBERT: Wha'? SOMERVILLE: When ya drive up past the garage there, don't… ALBERT: Yeah. SOMERVILLE: ... go that way, go right ta the end a the pit and take a left. Okay? ALBERT: (_)… SOMERVILLE: Don't go past the garage. ALBERT: Yeah I know (_) was like that last time I went out there. SOMERVILLE: Oh okay I didn't (_)… ALBERT: Where are you up in your, up in the camp? SOMERVILLE: Yeah. ALBERT: Is buddy with ya? SOMERVILLE: Yeah. ALBERT: Oh man fuck. SOMERVILLE: (_) I'm gonna meet ya down at the trailer there.

Just let me know like about half an hour before you get here. (_)… ALBERT: (_) kind a wanted ta look at ah, your dog. SOMERVILLE: Yeah do (_). ALBERT: I wanted ta look at your dogs. SOMERVILLE: Yeah that's why (_)…

ALBERT: Wha'? SOMERVILLE: Gimme a call about half an hour before you get here 'cause I have to down over … ALBERT: (_)… SOMERVILLE: the hill and do a few things. ALBERT: (_) well I'm flickin' ah, comin' right (_)… SOMERVILLE: Okay ALBERT: ... I'm right by the golf course. SOMERVILLE: Okay I'll see ya down there. ALBERT: A'right bye. SOMERVILLE: Bye. [14] Immediately after the audio of this conversation was played to the jury, Cst. White was asked, and answered, as follows: Q. Now from your investigative standpoint, what – what is that conversation involving? A. Well, Mr. – Mr. Albert is – is on his way out to Mr.

Somerville's property. He – he asks well he gets directions up to the property which match my observations of the property. He then asks if his buddy's with him and Somerville says, "yes" and Albert seems to think that's a problem but Somerville ensures him that he's gonna get him – he's gonna meet him down by the trailer. Albert then says he wants to look at – at your dog. He wants – and then he repeats I wanted to look at your dogs. Right after the conversation about the male being up there so to me that's a – that's a code that Mr. – Mr. Albert wants to look at or tend the marihuana plants.

If – if he in fact wanted to look at the dogs, he wouldn't be worried about – about another person being up there. [Trial transcript, vol. 4, pp. 117-118] [15] Another example is a call on September 6, 2008, at 8:25 p.m., where (as set out above) Mr. Somerville called Allan Albert and spoke to Caleb Merzetti on Albert's phone line. In part, Merzetti asked Mr. Somerville, "Did you give those a shake?" and Somerville replied, "I've been shakin' rockin' and rollin' all fuckin' day ... been a ... like misty kinda fuckin' weird day." Constable White was asked and answered as follows:

Q. Now is there anything that you take from that call in connection with the production of marihuana? A. Yeah, This call takes place in – on September 6th In my experience harvest – people who grow marihuana they have to harvest them in late September before it gets too cold out so they – they – but they have to harvest them at a certain time or else they – they're – the quality is not as good but in this case on page #30 [of the transcript, Exhibit I-1], they're – they're talking about caring for the plants and Mr. Merzetti is asking Mr. Somerville if he shake – if he shook 'em – shaked them and Mr.

Somerville says, "I've been shaking, rocking, rolling all day" but he says it's been kind of a misty kind of day. So the shaking to me is – and as we'll see from – from future calls, they were concerned about the health of the marihuana plants. They – it would get a lot of rain during this time and the plants are – are losing – they're not as healthy as they'd like them to be so they're shaking the water off them to keep them healthy. We'll see more of that in future calls. [Trial transcript, vol. 4, pp. 124-125] [16] After Crown counsel introduced the intercepted calls and elicited Cst.

White's opinion as to what each one meant, court recessed for the day, and the next day the trial judge gave the jury a mid-trial instruction as follows: THE COURT: [...] Ladies and gentlemen of the jury just a couple of things I want to talk to you about before we hear any more testimony this morning to more or less explain some of the things that – that went on yesterday that you may have had some – some questions about.

First of all there was – there was talk about opinion evidence and ordinarily in a trial, civil or criminal trial, nobody can give an opinion unless they be – they've been declared as an expert in a particular area. Now in – in some cases, you know, an opinion doesn't require a high level of expertise. It doesn't require a whole [lot] of training. It only requires a certain amount of life experience and so in – in some cases for limited purposes opinions can – can be given.

You may have read cases in the newspaper about – I'll give an example of a murder trial for example and you read about pathologists who testify at murder trials or forensic experts to give those kinds of opinions it requires a high degree of expertise usually years of study and – and a lot [of] those cases a lot of on the job training as well but in some areas it's more a matter of on the job training so we allow opinions based on that kind of framing in certain cases as well. [Trial transcript, vol. 5, pp. 7-8] [17] On July 22, 2008, RCMP officers drove 4-wheelers into the road leading to Mr.

Somerville’s camp, noted a couple of individuals there and kept going. The officers found an outdoor marihuana grow, which was (in the words of Constable Gass) "nowhere near [Mr. Somerville’s] residence" (trial transcript, vol. 5, p. 98), and later pulled up about 40 marihuana plants but laid no charges. Other evidence suggests this marihuana grow was some 2½ kilometers from the camp. Constable Gass agreed with Mr.

Somerville, under cross-examination, that the police were then looking for marihuana plants belonging to Albert, not to Somerville. [18] RCMP members followed Allan Albert and Caleb Merzetti from the Gondola Point ferry to the road leading to the gravel pit at Mr. Somerville’s property on July 2, 2008, August 20, 2008, and September 8, 2008. On September 10 and 11, 2008, under the authority of a General Warrant, RCMP officers attended at Mr. Somerville’s camp looking for an outdoor marihuana grow. They noted approximately 40 plants behind the camp. The police never saw Mr.

Somerville, Albert or Merzetti tending to those plants. [19] On September 12, 2008, the police executed a search warrant

at the Somerville property. They found 48 marihuana plants growing in an area behind the camp. There was a foot path from the camp to the marihuana plants, along with a water hose along the path, and a big plastic water drum and a tub. The marihuana plants were some 50 to 75 feet from the camp. The 48 plants were about 4½ feet tall, they were "budded up", and it looked as though some had been exposed to frost. [20] Mr. Somerville introduced evidence showing that the 48 plant outdoor marihuana grow was not in fact on his property, but was on adjacent property registered to his brother Gregory Somerville.

No marihuana, money, or other inculpatory evidence was found at the camp. III. Issues [21] As stated in the introduction, there is no merit to Mr. Somerville’s grounds of appeal. To the extent his grounds attack the reasonableness of the verdict, they nonetheless remain without merit. There is ample evidence to support a finding that Mr.

Somerville was a member of an agreement to produce marihuana, i.e. the intercepted conversations, the plants that were found a short distance from his camp, down a trail that led from the camp, with hoses running from the camp, and considering the fact that during the time-frame of the intercepted conversations, Messrs.

Albert and Merzetti were seen on several occasions driving to the camp. [22] In my view, the only serious issue arising from the Notice of Appeal that needs to be addressed is the application for leave to appeal the sentence. [23] However, counsel for the Attorney General, who was not counsel at trial, in a very candid and professional manner, has raised two issues for the Court’s consideration. The first is whether or not the judge committed an error in law in admitting the evidence of the convictions of the alleged co-conspirators. The second relates to the testimony of Cst. White, and has two components:

(1) Should Cst. White have been qualified as an expert witness despite the absence of notice; and (2) notwithstanding the notice question, was Cst. White’s testimony admissible in the form it was given? The two issues counsel for the Attorney General raised raise yet another question: If the judge erred in admitting any of that evidence, can the verdict

nonetheless be upheld under s. 686(1)(b)(iii) of the Criminal Code? [24] Regarding the two issues he raised, counsel for the AttorneyGeneral concedes the trial judge erred. In his reply submission at the hearing of theappeal, Mr. Somerville seized on this and argued the appeal should therefore beallowed. I take this as a motion to amend his Notice of Appeal to add the additionalissues as grounds of appeal. I would grant the motion. [25] I agree with counsel for the Attorney General that the judgeerred in admitting the evidence of the convictions of the alleged co-conspirators andthe testimony of Cst.

White in the form it was given. Thus, the appeal againstconviction really turns on the application of the proviso contained in s. 686(1)(b)(iii). IV. Analysis [26] Given the Attorney General’s position on the two issues hiscounsel raised, I will only address these very briefly. A. Conviction of the Co-Conspirators [27] This ground of appeal is answered by the reasons for decisionDrapeau J.A. (as he then was) gave in R. v. Paquet (R.) (1999), (NBCA), 219 N.B.R. (2d) 130, [1999] N.B.J.

No. 493 (C.A.) (QL): While evidence that persons named as co-conspirators in the indictment pled guilty to the charge for which the accused stands trialappears to be admissible in England and Wales for the purpose of establishing the existence of the conspiracy alleged by the prosecution,a different rule avails in Canada. See R. v. Allan McGowan and Paul Edward Gard, [1999] E.W.J. No. 2829 (E.W.C.A.) for the Englishand Welsh positions. For the Canadian perspective, see R. v. Dixon et al. (1984), (BC CA), 16 C.C.C. (3d) 431(B.C.C.A.), at pp. 450-51, R. v. Lessard (1979), (QC CA), 50 C.C.C. (2d) 175 (Que.

C.A.), at pp. 181-82 and R. v.May (1984), (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), at p. 260, leave to appeal refused [1984] 2 S.C.R. viii. As mentioned, the jury heard evidence that several persons, other than the accused, pled guilty to the offences set out in the indictments.It was improper for the Crown to lead that evidence since it was irrelevant to the guilt of the accused and highly prejudicial. Moreimportantly, the trial judge erred in law in allowing it to form part of the record submitted to the jury for its consideration.

Moreover, anymention of the guilty pleas by alleged co-conspirators should provoke a clear and sharp instruction to the jury that it ought to disregardthat evidence in arriving at its verdict. See R. v. Moore (1956), 40 Cr. App. R. 50 (C.A.), at pp. 53-54, and R. v. Lessard, supra. [paras.22-23] [28] To have proceeded other than as instructed above constitutesan error of law.

B. Opinion Evidence

(1) Failure to Give Notice [29] As counsel for the Attorney General pointed out, s. 657.3(3) of the Criminal Code provides that a party who wishes to call a person as an expert witness shall provide notice to the other side. This requirement is stated to be “[f]or the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses”. In the present case, Crown counsel at trial tried to elicit opinion evidence from Cst. White without qualifying him as an expert witness. In my view, the judge was correct to interrupt him and to point out that no notice of expert had been given.

Clearly, Cst. White was being questioned as an expert witness to provide opinion evidence based on his training and experience. Eventually, the judge recognized his qualifications and allowed him to testify as an expert. The question is: what is the effect of the prosecution’s failure to give notice? [30] The Criminal Code provides the answer to this question.

Section 657.3(4) sets out the possible remedies for failure to provide notice of an expert witness: an adjournment if requested, an order for production of any material that should have accompanied the notice, and allowing the calling or recalling of any witness. Nothing in the Criminal Code suggests the evidence is inadmissible solely on the basis that the required notice was not given. I agree with the following statement of Rosenberg J.A. in R. v. Horan , 2008 ONCA 589 , [2008] O.J. No. 3167 (QL) : In oral argument in this court, counsel for the respondent returned to s. 657.3 of the Criminal Code .

That relatively new provision provides that, "For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses", a party calling an expert witness must, at least thirty days before trial, "or within any other period fixed by the justice or judge", provide the name of the witness, a description of the witness's area of expertise and a statement of the qualifications of the proposed witness "as an expert". There is an additional obligation on Crown counsel to provide a copy of any report prepared by the witness or, if there is no report, a

summary of the anticipated opinion of the expert "within a reasonable period before trial". If the prosecution has not complied with these obligations, under subsection (4) the trial judge may grant an adjournment and order compliance with the provision. Subsection (5) gives the trial judge additional powers where there has been some compliance but the other party has not been able to adequately prepare. For example, the trial judge may order further particulars or order the calling or recalling of any witness.

However, s. 657.3 does not give the trial judge the power to refuse to allow the expert witness to testify. Thus, the remedy granted by the trial judge in this case was not authorized by s. 657.3. [para. 29] [31] I also agree with the words of Stewart J. in R. v. Henneberry , 2009 NSSC 95 , [2009] N.S.J. No. 139 (QL) aff’d 2009 NSCA 112 , [2009] N.S.J. No. 524 (QL) , where she held that “the remedy for failure lies in s. 657.3(4), not in holding an expert's opinion inadmissible” (para. 100). [32] The trial judge’s error in the present case, if there was one,

was not in allowing Cst. White to testify as an expert witness, but rather in notpointing out to Mr. Somerville, a self-represented accused, that relief was available tohim under s. 657.3(4). I express no opinion whether or not this was in fact an errorbecause, even if it was, I would nevertheless dismiss this aspect of this ground ofappeal. Mr. Somerville has not complained of any unfairness resulting from the lackof notice. Moreover, a review of the record reveals none. Evidently, Mr. Somervillehad received the required disclosure and he found himself in a position to properlyquestion Cst. White.

Even in his submissions at the hearing of the appeal, Mr.Somerville made no mention of unfairness and he did not argue he would have soughtan adjournment if he had been advised he was entitled to one. Thus, the purpose of s.657.3(3), promoting the fair, orderly and efficient presentation of the testimony ofwitnesses, was not compromised by the absence of notice in this case.

(2) Form of Opinion Evidence [33] At trial, Cst. White was asked to interpret and explain eachof the 18 intercepted conversations. This was not a proper approach to expert opinionevidence and ought not to have been allowed. It was not Cst. White’s role to drawinferences from the conversations. This is made clear in R. v. Fougère (1988), (NB CA), 86 N.B.R. (2d) 93, [1988] N.B.J. No. 17 (C.A.) (QL), where thisCourt stated as follows: In our opinion it was wrong for the trial judge to allow the police officer to give his opinion with respect to the inferences which had tobe made from the conversations.

An expert witness such as Corporal Bonnell is allowed to give his opinion on the meaning of wordsused in the illicit drug business but it is for the judge to decide whether that word should be given that meaning in the particularconversation. [para. 10] [34] What could have been asked of Cst. White was his opinion asto the type of language used in drug trafficking transactions, how marihuana wasgrown, the stages of a growth operation, the activities that surround a growthoperation, whether there are issues with moisture when it comes to harvest time, etc.

For example, he was quite properly qualified to testify that marihuana plants tend toget damaged by water and have to be shaken, but he should not have been asked totell the jury that “shakin' rockin' and rollin' all fuckin' day” meant that Mr.Somerville was shaking marihuana plants all day. That was an inference the jury hadto draw for itself. Of course, where Cst. White testified that plants need to be shakenso as not to get water damage, it was then quite proper, and even expected, for theprosecutor to invite the jury to draw the inference that Mr.

Somerville’s interceptedstatement meant that he had been shaking marijuana plants. C. Application of s. 686(1)(b)(iii) of the Criminal Code

[35] Section 686(1)(b)(iii) of the Criminal Code provides asfollows: 686.

(1) On the hearing of an appeal against aconviction or against a verdict that theappellant is unfit to stand trial or notcriminally responsible on account of mentaldisorder, the court of appeal (

a) may allow the appeal where it is ofthe opinion that […] (ii) the judgment of the trial court should beset aside on the ground of a wrong decisionon a question of law, or […] (

b) may dismiss the appeal where […] (iii) notwithstanding that the court is of theopinion that on any ground mentioned insubparagraph (a)(ii) the appeal might bedecided in favour of the appellant, it is of theopinion that no substantial wrong ormiscarriage of justice has occurred[.] 686.

(1) Lors de l’audition d’un appel d’unedéclaration de culpabilité ou d’un verdictd’inaptitude à subir son procès ou de non-responsabilité criminelle pour cause detroubles mentaux, la cour d’appel :

a) peut admettre l’appel, si elle estd’avis, selon le cas : […] (ii) que le jugement du tribunal de premièreinstance devrait être écarté pour le motif qu’ilconstitue une décision erronée sur unequestion de droit, […]

b) peut rejeter l’appel, dans l’un ou l’autredes cas suivants : […] (iii) bien qu’elle estime que, pour un motifmentionné au sous-alinéa a)(ii), l’appelpourrait être décidé en faveur de l’appelant,elle est d’avis qu’aucun tort important ouaucune erreur judiciaire grave ne s’estproduit[.] [36] Recently, in R. v.

White, 2011 SCC 13, [2011] 1 S.C.R. 433,Rothstein J. had occasion to summarize the law regarding the application of theproviso contained in s. 686(1)(b)(iii): This Court recently reviewed the principles governing the application of the curative proviso in Van [2009 SCC 22, [2009] 1 S.C.R. 716].LeBel J., writing for the majority, noted that there are two categories of errors that satisfy the requirements of s. 686(1)(b)(iii): An error falling into the first category is an error that is harmless on its face or in its effect.

The proviso ensures that an appellate courtdoes not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused,and thus could not have affected the verdict. Indeed, it would detract from society's perception of trial fairness and the properadministration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. The Queen (1956), (SCC), 24 C.R. 354 (S.C.C.), at p. 359)... .

Errors might also be characterized as having a minor effect if they relate toan issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as by imposing a more

onerous burden on the Crown (Khan, at para. 30). The question of whether an error or its effect is minor should be answered withoutreference to the strength of the other evidence presented at trial.

The overriding question is whether the error on its face or in its effectwas so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could notpossibly have rendered a different verdict if the error had not been made. [para. 35] An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannot be saidto have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properly instructedjury would inevitably have convicted (R. v.

Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 31). Thus, the first category of error that satisfies the requirements of the curative proviso is that of "minor" or "harmless" errors. Indetermining whether or not an error had only a minor effect, the court may look at the entirety of the case for context, but should notassess the strength of the evidence against the accused (Van, at paras. 35 and 37).

For example, an error that appears significant inisolation may be minor because, in context, it only related to "a very minor aspect of the case that could not have had any effect on theoutcome" or concerned "issues that the jury was otherwise necessarily aware of" (Khan, at para. 30). By contrast, the second category consists of errors that, while serious and prejudicial, can have had no impact on the verdict because thecase against the accused was overwhelming.

Here, the appellate court must evaluate the strength of the other evidence to determinewhether a conviction would have been inevitable even if the serious error had not been made. If a properly instructed jury wouldinevitably have convicted, upholding the conviction produces no significant injustice to the accused (Van, at para. 36). It is also in thepublic interest to avoid the cost and delay of a new trial that could not realistically produce a different result (Van, at para. 36, citing R.v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46, per Binnie J.).

Still, "given the difficult task for an appellate court ofevaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing thetrial as it unfolded", the high standard of invariable or inevitable conviction must be met to cure serious errors (Van, at para. 36, citing R.v.

Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82). [paras. 91-94] [37] Counsel for the Attorney General submits the error relatingto the admission of the record of convictions of the alleged co-conspirators should fallin the category of a minor error because it was clear at trial that Mr. Somerville andthe Crown disagreed only on one question: whether or not Mr. Somerville was aparty to an undisputed conspiracy involving Albert and Merzetti. He argues that thecertificates of conviction only helped prove the existence of that conspiracy and notwhether Mr. Somerville was involved.

I do not accept this argument. In my view, itis not supported by the decisions in R. v. May, [1984] O.J. No. 113 (C.A.) (QL), leaveto appeal to S.C.C. refused [1984] 2 S.C.R. viii, [1984] S.C.C.A. No. 197 (QL) and R.v. Faulds, (ON CA), [1996] O.J. No. 3787 (C.A.) (QL), at para. 29.Both those cases involved evidence of convictions of co-conspirators, and in each case,the Ontario Court of Appeal applied the proviso because the evidence of guilt was sooverwhelming.

Although both cases were decided before Supreme Court of Canadacases that set the standard for the application of the proviso, I understand that, underthe current test, the error would clearly have fallen into the second category. That iscertainly my view. [38] As for the scope of the opinion evidence of Cst. White,counsel for the Attorney General did not suggest it fell in the category of a minorerror. It does not. One could not say that this is an error that relates to an issue thatwas not central to the overall determination of guilt or innocence, or that it benefitedthe defence.

However, it bears noting that not all of Cst. White’s testimony wasobjectionable. Interspersed with the objectionable answers was information that he

was quite qualified to give and which, as stated earlier, opened the door for the prosecutor to invite the jury to draw the very inferences Cst. White himself drew. [39] Where there have been serious errors of law committed, the application of the proviso is dependent on whether or not the evidence is so overwhelming that a trier of fact would inevitably convict. In my view, it is. The evidence incontrovertibly proves a conspiracy involving Mr. Somerville and Messrs. Albert and Merzetti. There is absolutely no question the intercepted communications relate to a marihuana grow operation.

Frankly, when the conversations are placed in context, as they were by other evidence adduced at trial, one does not need opinion evidence about jargon and codes to understand what is being discussed, nor does one need to know the other two accused pled guilty, in order to convict. Simply stated, on the evidence adduced at trial, there really was no plausible defence to this charge. [40] The evidence led at trial to describe Mr. Somerville’s property and the adjacent lands corresponds to what was plainly referred to in the intercepted communications.

When the warrants were executed, the police found a camp, a trailer and a garage on the property. In the conversation of July 22, 2008, instructions are given that mention the garage and a meeting is arranged at the trailer. This is part of the same conversation where Mr. Albert expresses frustration that someone is with Mr. Somerville and says he wants to look at his “dogs”. On the property, the police found a generator, a pressure washer, several hoses and potting buckets. They also noted a footpath leading from Mr.

Somerville’s camp to the location where the marihuana plants were found and water hoses running from Mr. Somerville’s property along this part. This corresponds to the conversations relating to needing a “drink” or a “spray” and to the admissible evidence given by Cst. White that marihuana plants need lots of care and need to be watered in dry conditions. On this point, in the conversation of September 11, 2008, Mr. Somerville actually says he saw “two plants disintegrate”, leaving little doubt about the subject of the conversation when Mr. Merzetti asked if they “need a drink” and Mr.

Somerville’s reply that “they need a spray more.” [41] Near the path, police also located a bathtub. This corresponds to the conversation where Mr. Albert says he does not know how to “turn on your fuckin’ tub.” The conversations also reveal concern about attending at the property when others are present and also some fear about being found out and losing the harvest, which corresponds with unobjectionable testimony of Cst. White to the effect that, in the drug trade, there is a constant worry about being found out or about losing the harvest.

The several conversations relating to “shakin’ rockin’ and rollin’” or there being “spots” or having “lost three so far, maybe four” correspond to admissible testimony that, as one gets close to harvest, the plants have to be carefully attended to and excess water must be removed because plants of this type are “finicky”. Near the plants, the police found a trip wire attached to a can of some

type, an obviously crude security system, which corresponds to the conversation on September 11, 2008, in which Mr. Somerville called Mr. Albert and told him not to go there without him because of the “security system there”. [42] The rest of the conversations speak for themselves, such as Mr. Somerville informing Mr. Merzetti on Mr. Albert’s phone that “everything’s gone … It was the cops came to my house” the day following the execution of the search warrant. Besides the conversations, there was evidence that when Messrs.

Albert and Merzetti were arrested, police found equipment commonly used to grow marihuana and 40 small plants described as clones that would be getting ready for outdoor transplant in the spring. [43] When I assess the strength of the evidence, I come to the conclusion that a conviction would have been inevitable even if the serious errors had not been made. In my view, a properly instructed jury would inevitably have convicted. Therefore, upholding the conviction does not lead to an injustice for Mr. Somerville. D.

Sentence Appeal [44] As for the application for leave to appeal the sentence, I would grant leave to appeal but dismiss the appeal. In my respectful view, there was an error in principle in the sentencing judge’s decision. The judge lists as an aggravating factor the fact Mr.

Somerville “persisted in going through a trial though he admitted, both in his pre-sentence report and during the trial, that he and [one of the co-conspirators] were growing marihuana at his camp.” While a plea of guilty can, in some circumstances, be considered a mitigating factor, a plea that otherwise stands on the presumption of innocence is not an aggravating factor: Nash v. R. , 2009 NBCA 7 , 340 N.B.R. (2d) 320 , leave to appeal dismissed [2009] S.C.C.A.

No. 131 (QL). [45] When a court of appeal finds a sentence to have been the product of an error in principle, it then falls on that court to impose the sentence it considers fit in the circumstances. In the present case, the trial judge acceded to Mr. Somerville’s request for a conditional sentence and the Attorney General has not cross-appealed. In the circumstances, we would not interfere with the sentence imposed, despite the trial judge’s error in principle. If anything, the sentence is on the lenient end of the spectrum. V. Disposition

[46] For these reasons, the appeal against conviction is dismissed. The application for leave to appeal sentence is allowed but the appeal against sentence is also dismissed. _____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ________________________________ B. RICHARD BELL, J.A. ________________________________ BRADLEY V. GREEN, J.A.