R. v. Leonard, 2022 NLCA 22

Her Majesty the Queen (appellant) v. Shane Leonard(respondent) (19/33) Indexed as: R. v. Leonard 2022 NLCA 22 7 C.A.N.L.R. 465 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Butler JJ.A. April 8, 2022

Summary: Shane Leonard was prescribed Percocet following work-related and other injuries. The trial judge accepted Mr. Leonard’s testimony thathe was selling Percocet, and that he did not know that Percocet contained oxycodone. On this basis the trial judge acquitted Mr. Leonardof the charge of trafficking in oxycodone contrary to section 5(1) of the Controlled Drugs and Substances Act, concluding that the mensrea element of the offence had not been established. The Crown appealed alleging the trial judge erred in failing to apply

section 19 ofthe Criminal Code, that ignorance of the law is no excuse, or in stating and applying the law regarding wilful blindness. Held: Appeal allowed. Welsh J.A. (Fry C.J.N.L. and Butler J.A. concurring): The sole question of law on appeal, since Mr. Leonard admitted to sellingPercocet, is whether Mr. Leonard had the necessary knowledge to satisfy the mens rea element of the offence (paragraphs 7-10). The trial judge did not err in finding that

section 19 of the Criminal Code did not apply. This was a mistake in fact (he did not knowwhat Percocet contained), not a mistake in law (e.g., that trafficking oxycodone was legal). Mr. Leonard’s situation was distinguishablefrom cases such as Molis v. R., R. v. Burgess, and R. v. Blondin (paragraphs 11-17). The trial judge erred by relying on a single excerpt from R. v.

Sansregret whereby wilful blindness could only be found where it couldalmost be said that the defendant actually knew, as opposed to the analytical approach adopted in Sansregret and subsequent cases thatfocus on the deliberate choices of the accused to remain ignorant in circumstances requiring a degree of inquiry (paragraphs 18-24). On the facts the doctrine of wilful blindness imputes knowledge, and the necessary mens rea, to Mr. Leonard. A verdict of guilty wasentered, and the matter remitted to the trial court for the imposition of a sentence (paragraphs 25-30). Cases cited: Molis v.

R., (SCC), [1980] 2 S.C.R. 356 R. v. Burgess, (ON CA), [1970] 2 O.R. 216 (Ont. C.A.) R. v. Blondin, (BC CA), [1971] 2 W.W.R. 1 (B.C. C.A.) Sansregret v. R., (SCC), [1985] 1 S.C.R. 570

R. v. Zora , 2020 SCC 14 R. v. Briscoe , 2010 SCC 13 , [2010] 1 S.C.R. 411 R. v. Morrison , 2019 SCC 15 , [2019] 2 S.C.R. 3 R. v. Spencer , 2014 SCC 43 , [2014] 2 S.C.R. 212 Statutes considered: Controlled Drugs and Substances Act , S.C. 1996, c. 19, section 5(1) Criminal Code , sections 19 , 676(1) (a), 686(4) Counsel: Andrew O. Brown Q.C., for the appellant; Bob Buckingham, for the respondent. The appeal was heard on March 16, 2022 before Fry C.J.N.L., Welsh and Butler JJ.A.

The following judgment was filed on April 8, 2022 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Shane Leonard was acquitted on a charge of trafficking in oxycodone, contrary to section 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . The trial judge accepted Mr. Leonard’s testimony that he was selling the prescription drug that is described by the brand name Percocet, but that he did not know that Percocet contained the ingredient oxycodone.

On this basis, the judge concluded that the mens rea element of the offence had not been established. The Crown appeals. BACKGROUND [ 2 ] Mr. Leonard was prescribed Percocet following work-related and other injuries. He admitted that he sold some of the pills. He was charged that between May 13, 2015 and August 19, 2015 he trafficked in the controlled substance, oxycodone. In his decision, the trial judge considered Mr. Leonard’s testimony (decision of the trial judge, 2019 NLSC 38 ): [6] In his evidence, Mr. Leonard testified that he thought Percocet was the actual drug. He did not know its chemical composition.

As well, he said that he never heard of anyone being charged for possession or the sale of Percocet. [ 3 ] The judge was satisfied that Mr. Leonard: [8] ... knew that selling any type of prescription drug to individuals not covered by a prescription would be a forbidden and dangerous practice. [ 4 ] Nonetheless, that sale would not constitute a criminal offence unless the drug, or a component of the drug, was listed in a

Schedule to the Controlled Drugs and Substances Act . In acquitting Mr. Leonard, the judge determined: [21] In conclusion, while the evidence of Mr. Leonard is not free from difficulty, I am unable to conclude that it is false on the main issue before the court, knowing that the substance was controlled and listed in the Act . This is not a situation where he confused one drug under the Act with another under the legislation. It was his belief that Percocet was not a controlled substance. His evidence on this point was strongly maintained at trial and withstood cross-examination. While Mr.

Leonard was aware that his involvement with prescriptions, and the distribution of prescription drugs was improper and wrong, this would be insufficient to sustain a conviction for the charge before the Court. [22] Finally, I am unable to conclude that the accused was “wilfully blind” to the contents of Percocet. ... [ 5 ] The judge found that the evidence was sufficient to raise a reasonable doubt about Mr. Leonard’s guilt, and acquitted him of the charge. ISSUES [ 6 ] At issue is whether the trial judge erred:

(1) In failing to apply

section 19 of the Criminal Code, that ignorance of the law is no excuse; or

(2) In stating and applying the law regarding wilful blindness. ANALYSIS [7] This appeal by the Crown is governed by section 676(1)(

a) of the Criminal Code: The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (

a) against a judgment or verdict of acquittal ... of a trial court in proceedings by indictment on any ground of appeal that involves aquestion of law alone; ... (Emphasis added.) [8] Section 686(4) of the Code addresses the remedy available on an appeal from an acquittal: If an appeal is from an acquittal ,,, , the court of appeal may (

a) dismiss the appeal; or (

b) allow the appeal, set aside the verdict and (

i) order a new trial, or (ii) ... enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for theerror in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose asentence that is warranted in law. [9] Section 5(1) of the Controlled Drugs and Substances Act provides: No person shall traffic in a substance included in

Schedule I ... or in any substance represented or held out by that person to be such asubstance. [10] Oxycodone is a listed drug under

Schedule I. It is not contested for purposes of the appeal that Percocet contains oxycodone. Since Mr. Leonard admitted selling Percocet, the sole issue on appeal is whether he had the necessary knowledge to satisfy the mens reaelement of the offence. Ignorance of the Law [11]

Section 19 of the Criminal Code provides: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. [12] The Crown relies on this provision in submitting that it was not a defence for Mr. Leonard to say that he did not know that aningredient in Percocet was a drug listed in a

Schedule to the Act. In support of his position, Crown counsel relies on case law describingdifferent scenarios. Each of these is distinguishable. [13] First, in Molis v. R., (SCC), [1980] 2 S.C.R. 356, Mr. Molis had been producing a chemical substance, MDMA,prior to it being listed under the Act. After it was listed, Mr. Molis continued to produce MDMA. The Court rejected his defence that hewas unaware of the change to the legislation.

Section 19 of the Criminal Code, ignorance of the law is no excuse, applied because Mr.Molis knew that he was producing MDMA; he just did not know that it was legally prohibited. [14] By contrast in this appeal, the trial judge accepted that Mr. Leonard knew he was selling Percocet, but Percocet is not a druglisted under the Act. The circumstances that grounded the application of ignorance of the law in Molis would not apply here. [15] Other scenarios offered by the Crown are also distinguishable.

This is not a case where the accused thought he was trafficking inone prohibited drug, when, in fact, it was a different, but prohibited drug (R. v. Burgess, (ON CA), [1970] 2 O.R. 216(Ont. C.A.)). Here, there is no evidence that Mr. Leonard knew he was trafficking in a prohibited drug. Rather, the evidence acceptedby the trial judge was that Mr. Leonard did not believe that the drug he was selling was prohibited. [16] Similarly, this is not a case where Mr. Leonard did not know what substance he was trafficking, but did know that, whatever thedrug was, it was a prohibited substance (R. v.

Blondin, (BC CA), [1971] 2 W.W.R. 1 (B.C. C.A.)). In fact, theopposite was the case; Mr. Leonard knew what he was trafficking, but not that it contained an ingredient that was prohibited. [17] In

summary, the trial judge did not err in concluding that ignorance of the law did not apply on the facts of Mr. Leonard’s case. Mr. Leonard was not saying that he did not know that trafficking in oxycodone was an offence. Rather, he said that he did not know thatPercocet contained oxycodone or any other prohibited ingredient. Mr. Leonard’s mistake was a mistake of fact, not a mistake of law. This was not a case of ignorance of the law. It follows that

section 19 of the Code has no application. Wilful Blindness [18] In the discussion on wilful blindness, the trial judge and counsel relied on Sansregret v. R., (SCC), [1985] 1

S.C.R. 570. In that case, which dealt with consent to sexual activity, the Court considered the effect of wilful blindness by an accused tonegate a defence of mistake of fact. McIntyre J., for the Court, began with mistake of fact and honest belief, at pages 580 and 584: The defence of mistake of fact has been said to rest on the proposition that the mistaken belief, honestly held, deprives the accused of therequisite mens rea for the offence. ... ... as held in Pappajohn [ (SCC), [1980] 2 S.C.R. 120], the mere honesty of the belief will support the ‘mistake of fact’defence, even where it is unreasonable.

On the other hand, a finding of wilful blindness as to the very facts about which the honest beliefis now asserted would leave no room for the application of the defence because, where wilful blindness is shown, the law presumesknowledge on the part of the accused, ... (Emphasis added.) [19] And further, at page 584: ... wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because hedoes not wish to know the truth.

He would prefer to remain ignorant. [20] McIntyre J. then proceeded with a discussion of comments on the issue by textwriters such as Glanville Williams and ProfessorStuart. With respect to negating the defence of mistake of fact by applying the doctrine of wilful blindness, McIntyre J. concluded, atpages 587 to 588: This is not to be taken as a retreat from the position taken in Pappajohn that the honest belief need not be reasonable. It is not to bethought that any time an accused forms an honest though unreasonable belief he will be deprived of the defence of mistake of fact.

Thiscase rests on a different proposition.

Having wilfully blinded himself to the facts before him, the fact that an accused may be enabled topreserve what could be called an honest belief, in the sense that he has no specific knowledge to the contrary, will not afford a defencebecause, where the accused becomes deliberately blind to the existing facts, he is fixed by law with actual knowledge and his belief inanother state of facts is irrelevant. (Emphasis added.) [21] In this appeal, rather than applying the principles gleaned from the discussion in Sansregret, the trial judge relied on one sentence taken out of context from the

summary of the law set out in Glanville Williams, Criminal Law: The General Part, 2nd ed.,London, Stevens & Sons Ltd., 1961. The trial judge simply stated: [22] Finally, I am unable to conclude that the accused was “wilfully blind” to the contents of Percocet.

I refer again to Sansregret,wherein the Supreme Court of Canada said, “[a] court can properly find wilful blindness only where it can almost be said that thedefendant actually knew.” (Emphasis added.) [22] The analytical approach adopted by the Court in Sansregret and subsequent cases is more nuanced, based on the particular facts,and focusing on a deliberate choice by the accused to remain ignorant in circumstances requiring a degree of inquiry. For example, in R.v.

Zora, 2020 SCC 14, at paragraph 113, wilful blindness is described as “a substitute for the accused’s knowledge of the facts wheneverknowledge is a component of mens rea and where the accused is deliberately ignorant” (emphasis added). [23] In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, Charron J., for the Court, discussed the doctrine of wilful blindness insimilar language: [21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea.

The doctrine of wilful blindness imputes knowledge to an accused whosesuspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, (SCC), [1995] 4 S.C.R.55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to thequestion: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” (Italics in original.) See also: R. v.

Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paragraphs 98 to 100; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, atparagraphs 84 to 86. [24] I note in passing that the distinction between wilful blindness and recklessness is discussed in the above cases. However, theCrown did not rely on recklessness, so it is unnecessary to address it. [25] Applying the above law to the evidence in this appeal, it follows that the doctrine of wilful blindness is a live issue necessarilyengaged in determining whether Mr. Leonard had the necessary mens rea for the offence (Spencer, at paragraph 84).

The trial judgeerred in law by failing to apply to the facts of this case the principles underpinning the doctrine of wilful blindness as set out by theSupreme Court of Canada. The error was central to the assessment of the charge against Mr. Leonard and could reasonably beconsidered to have had a bearing on his decision to acquit (Spencer, at paragraph 86). In the result, I would allow the appeal and setaside the verdict of acquittal. [26] The issue, then, is whether the matter should be remitted for a new trial, or whether this Court should substitute a verdict ofguilty, as requested by the Crown.

I am satisfied that the latter is the appropriate remedy.

[ 27 ] The trial judge found as facts that Mr. Leonard knew that he was trafficking a prescription drug, and the brand name of the drug. He knew that it was wrong to sell a prescription drug; that it was a forbidden and dangerous practice. His only defence was that he did not know the chemical composition of Percocet and had not heard of anyone being charged for the possession or sale of Percocet. These facts lead inexorably to the conclusion that Mr. Leonard was wilfully blind to whether trafficking in Percocet was a criminal offence. He claims that he did not know the ingredients contained in the drug.

It was convenient not to know. He was deliberately ignorant; he deliberately chose not to make inquiries. [ 28 ] As discussed above, wilful blindness imputes knowledge where knowledge is a component of the mens rea of an offence. In this case, as a result of Mr. Leonard’s wilful blindness, knowledge that the drug he was trafficking contains a substance listed in

Schedule I of the Act is imputed. Given that determination together with the facts found by the trial judge and Mr. Leonard’s admissions, the elements of the offence have been proven. The appropriate remedy is to set aside the acquittal and enter a verdict of guilty.

SUMMARY AND DISPOSITION [ 29 ] The trial judge erred in law in his analysis and conclusion regarding application of the doctrine of wilful blindness. Mr. Leonard’s deliberate choice not to ascertain whether trafficking in Percocet would involve trafficking in a drug listed in

Schedule I of the Act amounted to wilful blindness. With the resulting imputation of knowledge, the elements of the offence have been proven. [ 30 ] Accordingly, I would allow the appeal, set aside the verdict of acquittal, and enter a verdict of guilty for the offence. I would remit the matter to the trial court for the imposition of a sentence that is warranted in law. Appeal allowed.