R. v. Patterson, 2018 NSCA 73

Nova Scotia Court of Appeal Citation: R. v. Patterson, 2018 NSCA 73 Date: 20180830 Docket: CAC 470333 Registry: Halifax Between: Jason Patterson Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Anne DerrickAppeal Heard: June 12, 2018, in Halifax, Nova ScotiaSubject: Criminal law; assessment of the evidence – “unbalanced scrutiny”; reasonableness of theverdictsSummary: After a police investigation that included surveillance of Mr. Patterson, a correctional officer, and theexamination of text messages, Mr.

Patterson was charged with conspiracy to traffic drugs into aprovincial jail, possession of drugs for the purpose of trafficking, and breach of trust. At trial, heoffered an innocent explanation for his participation in the text exchanges and for what policeobserved him doing on the night the drugs were dropped off near his home. He testified that he neverhad any intention of going through with a conspiracy to traffic drugs into the jail or take possession ofthe drugs for smuggling into the institution.

The trial judge did not believe him and, examining thewhole of the evidence, concluded that he was guilty as charged. Mr. Patterson argued on appeal that the trial judge had narrowly focused on only certain evidence,made arbitrary assumptions, and indulged in speculation, causing him to wrongly conclude that theCrown had proven his guilty intention beyond a reasonable doubt. He said that police testimony at aGarofoli voir dire was given more latitude than his testimony at trial.

He said the trial judge madeassumptions about how he should have behaved in circumstances where he was being asked by aconfederate of a prisoner at the jail to smuggle drugs into the jail. Issues:

(1) Did the appellant establish a basis for an “unbalanced scrutiny” ground of appeal?

(2) Were the verdicts reasonable? Result: [1] Mr. Patterson did not identify anything in what constituted the trial record that showed thetrial judge to have applied different standards of scrutiny to the evidence. He failed to demonstratewhy the deference to be accorded to the trial judge’s credibility findings in relation to him should bedisplaced. The trial judge’s assessment of the evidence advanced by the Crown and Mr. Patterson wasfair, balanced, and beyond reproach. [2] In assessing the plausibility of Mr.

Patterson’s explanation of his purported strategy fordealing with the conspirators who wanted him to smuggle drugs into the jail, the trial judge wasentitled to use common sense and logic. The trial judge correctly assessed Mr. Patterson’s credibilityin accordance with R. v. W.(D.), (SCC), [1991] 1 SCR 742. After his careful review ofall the evidence, the trial judge found that Mr. Patterson had demonstrated, through his text messagesand his conduct, the requisite intent to actively participate in the conspiracy.

The trial judge’s reasonsshowed that he conducted a painstaking, thorough, and logical examination of all the evidence. Hedrew reasonable, supportable inferences. His comprehensive analysis of the text messages, thesurveillance evidence, and Mr. Patterson’s testimony resulted in a well-reasoned determination that theCrown had proven, to the required high standard, all the elements of the offences. The verdicts wereentirely reasonable and supported by the evidence. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court

judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Patterson , 2018 NSCA 73 Date: 20180830 Docket: CAC 470333 Registry: Halifax Between: Jason Patterson Appellant v. Her Majesty the Queen Respondent Judges: Van den Eynden, Saunders and Derrick, JJ.A. Appeal Heard: June 12, 2018, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Derrick, J.A.; Van den Eynden and Saunders, JJ.A. concurring.

Counsel: Luke Craggs, for the appellant Scott Millar and Grace Jothiraj (Articled Clerk), for the respondent Reasons for judgment: Introduction [ 3 ] Jason Patterson appeals convictions for conspiracy to traffic drugs into the Central Nova Scotia Correctional Facility, contrary to s. 465(1) (

c) of the Criminal Code of Canada , R.S.C. 1985. C. C-46, possession of drugs (hydromorphone, diazepam, and marijuana) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and breach of trust, contrary to s. 122 of the Criminal Code . [ 4 ] Mr. Patterson, who worked as a correctional officer at the Central Nova Scotia Correctional Facility (“CNSCF”) until his arrest on November 4, 2015, was convicted of these offences in Provincial Court by Judge David Ryan on May 26, 2017. [ 5 ] It was Mr.

Patterson’s evidence at trial that he never had any intention of going through with a conspiracy to traffic drugs into the CNSCF or take possession of any drugs for smuggling into the institution. [ 6 ] The principal evidence relied on by the Crown were text messages, and police surveillance of Mr. Patterson. Mr. Patterson offered an innocent explanation for his participation in the text exchanges and for what police observed him doing. The trial judge did not believe him. Examining the whole of the evidence, he concluded that Mr. Patterson was guilty as charged. [ 7 ] In Mr.

Patterson’s submission, Judge Ryan examined the evidence in a piecemeal fashion and indulged in speculation causing him to wrongly conclude that the Crown had proven his guilty intention beyond a reasonable doubt. He says his testimony was subjected to more exacting scrutiny than the evidence provided by the police. He argues that he was held to “an artificial standard of expected behaviour.” [ 8 ] As the reasons that follow explain, I have concluded the trial judge made no errors in how he assessed the evidence. The verdicts he rendered were reasonable and fully supported by the evidence. Overview of the Facts

[ 9 ] Hired as a “casual”, Mr. Patterson completed his training as a correctional officer in December 2014 and started working at the CNSCF in January 2015. At that time, Paul Oakley was on remand at the institution. Mr. Oakley had a friend on the outside, James MacLeod. [ 10 ] Via a series of telephone conversations intercepted by the CNSCF, Mr. Oakley and Mr. MacLeod formulated a plan to smuggle a package of contraband into the institution through an employee. [ 11 ] Mr. Oakley told Mr. MacLeod on October 25 that “the guy out here is on board”. In a call on October 30, he gave him Mr. Patterson’s phone number.

Mr. Oakley then coached Mr. MacLeod on what to say. He instructed Mr. MacLeod to introduce himself as “Paul’s friend” and to ask when was a good time “to make the drop”. Mr. MacLeod repeated the script back: “Okay. So, “Hi, it’s Paul’s friend. And he wants to know when you want me to make the drop”. [ 12 ] The Oakley-MacLeod call began at 5:33 p.m. on October 30. Mr. MacLeod initiated the first texting contact with Mr. Patterson at 5:49 p.m., using the number Mr. Oakley had given him: “Hi this is Paul’s friend. Want to know when is a good time to make the drop”. Ultimately it was Mr.

Patterson who proposed the location for the drop – an empty mailbox in a bank of community mailboxes close to Mr. Patterson’s home. [ 13 ] Mr. Patterson admitted at trial that, through a series of text exchanges in the period between October 30 and November 4, 2015, he and Mr. MacLeod worked out the details for the delivery of the contraband intended for Mr. Oakley. The text messages were eventually retrieved by police from Mr. MacLeod’s cell phone under the authorization of a search warrant. [ 14 ] Mr.

Patterson testified he was afraid of what would happen to him and his family if he did not appear to be facilitating the Oakley-MacLeod plan. He said he played along to give the impression he was a willing participant when, in fact, he had no intention of smuggling the contraband. [ 15 ] The police learned about Mr. Patterson from the intelligence officer at the CNSCF. As a result of the intercepted telephone conversations between Mr. Oakley and Mr. MacLeod he had become suspicious about Mr. Patterson and contacted police. [ 16 ] Mr.

Patterson was placed under police surveillance, most notably, on November 3, 2015, with officers positioned outside and near his house on Conley Road in Shubenacadie. Cpl. Kerr saw Mr. Patterson arriving home around 4:30 p.m. [ 17 ] Police investigators also had Mr. MacLeod under surveillance. There was no dispute at trial that close to 10 p.m. on November 3, police conducting surveillance at Conley Road observed the contraband drop being made by someone in a vehicle identical to Mr. MacLeod’s. The subsequent text messaging to Mr. Patterson confirmed this was Mr.

MacLeod. [ 18 ] The police officers at Conley Road anticipated that Mr. Patterson would come out of his house and collect what had been left in the mailbox. [ 19 ] At just after 1 a.m. on November 4, Cpl. Michael Kerr saw Mr. Patterson leaving his house and walking toward the community mailboxes. Mr. Patterson approached the mailboxes and walked on by. [ 20 ] After this happened, D/Cst. Steve Fairbairn, another member of the surveillance team, drove up and checked the bottom right- hand mailbox. It was unlocked. There was an envelope inside which D/Cst. Fairbairn did not remove. [ 21 ] Mr.

Patterson was observed returning to Conley Road having made a loop around his small subdivision that took about ten minutes. He walked by the mailboxes and back into his house. [ 22 ] D/Cst. Fairbairn did not see anything to suggest that Mr. Patterson noticed the police surveillance. Cpl. Kerr thought the surveillance had been “burned”, that is, compromised, when Mr. Patterson first walked past. However, Mr. Patterson told police later, in his warned statement, that he had not seen them. [ 23 ] Police officers waited until approximately 4 a.m. to see if Mr. Patterson would come out again. He didn’t.

The decision was made to end the surveillance and arrest him. [ 24 ] Shortly before Mr. Patterson was arrested, Cpl. Kerr retrieved the envelope from the unlocked mailbox. It was found to contain 15 one hundred dollar bills, six matchbooks, a pill bottle with 300 hydromorphone four mg. pills in tablet form, syringes, and two cut-off fingertips from surgical gloves which held 2.5 grams of marijuana, and 10 diazepam pills, respectively. At trial it was admitted that two fingerprints from Mr. MacLeod were identified on the envelope. [ 25 ] The Crown expert, D/Cst.

Michael Sanford, testified that the contraband retrieved from the mailbox corresponded to what Mr. Oakley and Mr. MacLeod had been discussing in their intercepted telephone conversations. [ 26 ] Mr. Oakley and Mr. MacLeod were charged with Mr. Patterson for conspiracy to traffic, and possession for the purpose of trafficking in hydromorphone, diazepam, and marijuana. The Issues [ 27 ] Mr. Patterson’s appeal concerns how the trial judge assessed the evidence before him. At appeal, the Crown characterized Mr.

Patterson’s allegations—that the trial judge narrowly focused on only certain evidence, made arbitrary assumptions, and relied on speculation—as really nothing more than an attack on the reasonableness of the convictions. I agree. I need to examine: (1) whether Mr. Patterson has established the basis for an “unbalanced scrutiny” ground of appeal; and (2) whether the verdicts are unreasonable. Standard of Review [ 28 ] Whether Mr. Patterson has made out a basis for the “unbalanced scrutiny” ground of appeal is a question of law reviewed on a

standard of correctness (R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381). The trial judge’s credibility assessments are to bereviewed for “palpable and overriding error” (R. v. Dim, 2017 NSCA 80, at paras. 48 and 49). [29] The reasonableness of a verdict, within the meaning of s. 686(1)(a)(

i) of the Criminal Code, is a question of law. [30] Determining whether a verdict is reasonable involves asking this question: on the basis of the evidence presented at trial, coulda properly instructed jury, acting judicially, have returned it? (R. v. Henderson, 2012 NSCA 53, at para. 35).

The appellate court mustalso determine whether it was based on an inference or finding of fact that, (1) is plainly contradicted by the evidence relied on by thetrial judge in support of that inference; or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Thompson, 2015 NSCA 51, at para. 60). [31] In the course of examining whether a verdict is reasonable, appellate review of a trial judge’s credibility assessment mustrespect the trial judge’s findings “unless it is established that such findings cannot be supported on any reasonable view of the evidence”(Thompson, at para. 61). The “Unbalanced Scrutiny” Ground of Appeal [32] Mr. Patterson argues that the trial judge subjected his evidence to a more onerous assessment than the evidence he heard fromthe police. In his factum, he set out the issue: 56.

A careful review of the record reveals that the trial judge was willing to forgive police sins of omission and embellishment butheld Mr. Patterson to a standard of perfection. Problems with officers’ testimony were either overlooked or excused away; perceivedproblems with Mr. Patterson’s testimony led to

summary rejection of his testimony. Officers were allowed to pass to (sic) with a C+;anything less than an A+ for Mr. Patterson was a fail. [33] It is an error of law to apply different standards of scrutiny to the evidence of the defence and the Crown (R. v. Dim , at para.48) .

But it is an uphill argument for an appellant as: (1) considerable deference is accorded to a trial judge’s credibility determinations;(2) an appellant must do more than show that a different trial judge would have come to a different credibility assessment on the sameevidence; (3) an appellant has to be able to identify, in the trial judge’s reasons or otherwise in the trial record, where the trial judgeapplied different standards of scrutiny; and (4) in the absence of palpable and overriding error, an appeal court is not entitled to re-assessand re-weigh evidence (Dim, at para. 49, citing R. v.

Radcliffe, 2017 ONCA 176, at paras. 23 – 26). [34] Mr. Patterson’s uneven scrutiny argument suffers from a fatal flaw. The credibility assessments that he is using to underpin thisground of appeal were made by the trial judge in two different contexts. Mr. Patterson’s credibility was assessed by the trial judge at thetrial proper. The police evidence Mr. Patterson is saying was given a pass was heard in the context of a Charter voir dire. Mr.

Pattersonhas not appealed the voir dire and, apart from the trial judge’s decision, the record of the voir dire was not included in the record for thisappeal. [35] The voir dire, held a month before Mr. Patterson’s trial, was in relation to the seizure of his cell phone. The trial judge heardevidence from D/Cst. Fairbairn and excised portions of the Information to Obtain the warrant for the phone. Although he did so on thebasis of finding that some conclusions by D/Cst. Fairbairn were overbroad, he made no adverse findings about his credibility.

He heldthat the police officer had not tried to mislead the court or be untruthful. He concluded that D/Cst. Fairnbairn’s evidence was given in “afair and generally balanced way”. The Charter challenge was dismissed. [36] The trial judge’s credibility findings from the voir dire and the trial are not amenable to the comparative analysis required foran “uneven scrutiny” assessment. The standard of proof in each context is different – a balance of probabilities at the voir dire and proofbeyond a reasonable doubt at the trial. Furthermore, the evidence of D/Cst. Fairbairn and Mr.

Patterson was not in conflict andsignificantly, it did not even relate to the same issues. D/Cst. Fairbairn’s evidence at the voir dire concerned the basis for the ITO. Mr.Patterson’s evidence at trial was an exculpatory explanation for what the Crown had advanced as evidence of guilt. “Unbalancedscrutiny” cases are characterized by asymmetrical treatment of evidence that is in conflict.

A good example of this was identified in R. v.Gravesande, 2015 ONCA 774: 42 When read as a whole, the trial judge's reasons demonstrate a degree of scrutiny of the prosecution evidence that was tolerant andrelaxed as compared to the irrelevant, tenuous and speculative observations largely about collateral matters applied to unfairly discountthe appellant's evidence. [37] Contrary to the requirements of the test I reviewed earlier, Mr. Patterson has not identified anything in what constitutes the trialrecord that shows the trial judge applied different standards of scrutiny to the evidence.

He has failed to demonstrate why the deferenceto be accorded to the trial judge’s credibility findings in relation to him should be displaced. [38] Gravesande is what an “unbalanced scrutiny” case looks like. Mr. Patterson’s trial bears no resemblance to what happened inGravesande. The trial judge’s assessment of the evidence advanced by the Crown and Mr. Patterson was fair, balanced, and beyondreproach. This ground of appeal has no merit. The Unreasonable Verdict Ground of Appeal [39] As I noted earlier, Mr.

Patterson’s submissions that the trial judge engaged in speculation, subjected individual pieces ofevidence rather than the whole of the evidence to the proof-beyond-a-reasonable-doubt standard, and made erroneous assumptions abouthow Mr. Patterson should have behaved, all amount to an attack on the reasonableness of the verdicts. [40] The facts which I have already reviewed and the text message exchanges between Mr. Patterson and Mr. MacLeod are relevantto the discussion of this ground of appeal. The Text Message Exchanges Between Mr. Patterson and Mr. MacLeod

[ 41 ] As I noted earlier, the first text exchange between Mr. Patterson and Mr. MacLeod, initiated by Mr. MacLeod, took place on October 30, 2015. Mr. MacLeod, having introduced himself as “Paul’s friend” wanted to know when it would be a good time to “make the drop”. Mr. Patterson responded that he had to “get the details first” and asked, “Did he mention amount of $$?” Mr. MacLeod said, “No not to me but im sure he will get back to you or me asap”. [ 42 ] Mr. MacLeod texted Mr. Patterson next on November 1. He wanted to know “if tomorrow eavening is good for you”. Mr.

Patterson told him, “I still have to talk to him about $$”. Mr. MacLeod said he would get “him to call tonight”. Mr. Patterson responded by saying, “I think I am working with him this week” and proposed that a message could be relayed back from Mr. MacLeod. [ 43 ] That night Mr. MacLeod texted Mr. Patterson to advise “he said a g.” and then in a separate text a minute later asked, “is tomorrow evening ok”. (The trial judge found that a “g” is one thousand dollars.) [ 44 ] The texts between Mr. Patterson and Mr.

MacLeod on November 1 continued as follows: Patterson: Just pills right MacLeod: Will get back to you Patterson: Yeah just hold off until I talk to him MacLeod K MacLeod You were right on what he wants. The g will be with it but time is a bit of an issue for me where i work all over the place. Tomorrow evening is best for me.just one small package all in one Patterson Are yiu familiar with shubenacadie? MacLeod Ya a bit Patterson Well the main road right where home hardware is beside there is a green train bridge. Right under it there is a street off the main road. It is called Conley rd.

Go up halfway and you will see a group of green mailboxes on your right. The box on the bottom right has no lock. Drop it off after 10pm and text me when it is there. I cannot do it for less than $1500. There is alot of heat going around and management has a close eye on everyone. Huge risk [ 45 ] On November 2 Mr. MacLeod texted Mr. Patterson there had been a “slight setback but nothing serious”. Mr. Patterson responded, “No worries”. [ 46 ] The November 3 text exchanges started at 11:03 a.m. with Mr. MacLeod advising Mr.

Patterson that, “Everything is good on my end for tonight.is it good for yyou with the same directions”. Mr. Patterson indicated, “Yup”. The texts continued: MacLeod Ok will get back to you if anything goes south Patterson Ok MacLeod Will txt when its as you described Patterson Cool [ 47 ] At 10:01 p.m. on November 3 Mr. MacLeod texted Mr. Patterson to say, “All’s good. In mail box”. He then advised he had forgotten something and followed up at 10:18 p.m. with: “All good now all up to you have a good day”. At 11:28 p.m. Mr. MacLeod texted Mr. Patterson: “Let me know that all is good”. Mr.

Patterson’s response came at 12:41 a.m. on November 4: “Got it”. Mr. MacLeod’s further texts went unanswered. Mr. Patterson had been arrested. The Trial Judge’s Review of Mr. Patterson’s Evidence [ 48 ] Mr. Patterson complains that the trial judge’s assessment of his credibility only considered the text messages and not the police surveillance evidence. The trial judge’s decision shows that before he embarked on any analysis, he reviewed the evidence three times: first in a

summary form, then by going through the evidence offered by Mr. Patterson; and finally, by describing the evidence relied on by the Crown. His conclusion that guilt had been proven beyond a reasonable doubt came after his careful review of all the evidence, including Mr. Patterson’s testimony, the text messaging, and the surveillance evidence. [ 49 ] The conspiracy between Mr. Oakley and Mr. MacLeod was not in issue. The trial judge zeroed in on what the Crown had to prove in relation to Mr. Patterson: …The issue here is whether the Crown have proven beyond a reasonable doubt that Mr.

Patterson was a part of that conspiracy and possessed the controlled substances for the purpose of trafficking, as a result of which he committed a criminal breach of trust. Mens rea on behalf of Mr. Patterson is the essential element that the Crown must prove beyond a reasonable doubt. To make that determination, this court needs to carefully examine the evidence before it, and that evidence asserts that Mr.

Patterson’s evidence and conduct demonstrates that he was never a willing participant from the defence perspective in any conspiracy, he never intended to become a participant, and that his actions and text messages are demonstrative of that. The court was also reminded that it should exercise great caution in assessing the evidence, keeping in mind the stress Mr. Patterson was under and subject to when reciting his version of the events and how they transpired.

And again, the court was reminded, I think quite fairly, that there is no template or play book as to how a person should react and how they should deal with a situation such as Mr.

Patterson says he found himself in. [50] As the “no template” statement by the trial judge indicates, he explicitly cautioned himself not to measure Mr. Patterson’sconduct against an arbitrary standard of expected behaviour. [51] In reviewing Mr. Patterson’s testimony, the trial judge described how he had explained his involvement in the Oakley-MacLeod conspiracy as a desperate strategy to avoid harm coming to him and his family: He was dealing with the pressure from Mr. Oakley, knowing full well that Mr. Oakley was aware where Mr. Patterson lived and hisfamily situation with a wife and young child.

He also was aware of Mr. Patterson’s cell number, which Mr. Patterson felt could havebeen provided some other fellow prisoners who knew him. (sic) He said he felt threatened for his family’s personal safety. Therefore, Mr. Patterson decided to lead Mr. MacLeod on with no intention of ever actually participating in or carrying out the taking ofthose drugs into the institution. [52] Referring to the text messages and police surveillance as the “two most important pieces of evidence” to examine in relation toMr.

Patterson’s explanations for what he said and did, the trial judge observed that the text messages had been explained as “evidence ofdelaying tactics, obstruction on Mr. Patterson’s part, and consistent with his assertions that he had no intent to carry any contraband intothe institution”. He noted that Mr. Patterson had testified that he had been trying to “frustrate Mr. Oakley so as he would leave him aloneand look for someone else more reliable”. He referenced certain text messages -“I have to get details first”, “I still have to talk to himabout $$” and “Yeah just hold off until I talk to him” – that Mr.

Patterson had indicated were evidence of his disingenuous ploy. [53] According to Mr. Patterson, another stall tactic had been the sudden increase in price, at his insistence, to fifteen hundreddollars. The trial judge noted this evidence from the texts and Mr. Patterson’s explanation: “…he said that was done in the hope thatwould scare off Mr. Oakley and get rid of him, without success”. (AB 1, p. 33) [54] The trial judge reviewed Mr. Patterson’s explanation for giving Mr. MacLeod the directions to the Conley Road mailbox - hewas trying to “create the appearance of playing along with Mr.

Oakley” who already knew where he lived and what his family situationwas, “so he wasn’t giving anything away”. [55] As for the “Got it” text to Mr. MacLeod, the trial judge noted this was an outright lie. “He said he wanted simply to create theappearance of going along with the plan when he wasn’t ever intending to do so.” Mr. Patterson had not left his house when he sent the“Got it” text and it was another twenty-five minutes before he did so. [56] This led to the trial judge discussing Mr. Patterson’s explanation for his 1 a.m. walk, observed by the police conductingsurveillance. “[…the defence says that Mr.

Patterson was simply under so much stress that he had to relieve it by going for a walk.]” Henoted again that Mr. Patterson had not stopped at the mailbox or made any effort to retrieve the package. [57] The trial judge found there was no evidence that Mr. Patterson had noticed the police surveillance. He summarized Mr.Patterson’s explanation for his late night walk: …He simply walked past the mailbox because he had no intention of participating in any conspiracy and was simply out for a walktrying to figure out what he could do. As he said, he was trying to clear his head.

It may not have been the most appropriate thing hecould have done under the circumstances, leaving his young daughter home alone at that hour of the morning, but he was only gone for afew minutes and he, as I indicated, said he was trying to clear his head under the circumstances. The defence further argues the fact that Mr. Patterson did not pick up the package is the clearest demonstration that he had no intent offollowing through with Mr. Oakley or Mr.

MacLeod’s wishes. [58] The defence position on the breach of trust charge was reflected in the trial judge’s statement that, to secure a conviction, theCrown would have to prove Mr. Patterson “followed through with the conspiracy and had possession of the drugs or had to have receivedthe money.” The Trial Judge’s Findings and the Reasonableness of the Verdicts [59] The trial judge was satisfied the Crown had proven beyond a reasonable doubt that a conspiracy existed between Mr. Oakleyand Mr. MacLeod to smuggle contraband drugs into the CNSCF. He found that Mr.

Patterson was probably a member of the conspiracy.Neither of those findings has been challenged by the appellant. As I noted at the start of these reasons, what is being attacked is the trialjudge’s conclusion that Mr. Patterson had the requisite intent to participate in the conspiracy with Mr. Oakley and Mr. MacLeod. [60] The requisite intent to carry out the agreement made by Mr. Patterson with Mr.

MacLeod is what the Crown had to prove tosecure a conviction against him for conspiracy. “A conspiracy exists if there is an agreement to do an unlawful act… and there is anintention to carry out the agreement” (R. v. Tran, 2000 NSCA 128, at para. 15). The trial judge proceeded to carefully assess what hebelieved from Mr. Patterson’s testimony about what he said and did. [61] In reviewing Mr. Patterson’s evidence, the trial judge conducted the required credibility analysis in accordance with R. v. W.(D.), (SCC), [1991] 1 SCR 742. He again reviewed, with attention to additional detail, Mr.

Patterson’s testimony aboutbeing leaned on by Paul Oakley and subjected to a veiled threat: Mr. Patterson said Mr. Oakley had told him he knew where he lived, hisfamily situation, and his phone number. Mr. Patterson said he did not report the circumstances to management at the jail because he didnot have confidence they would assist. The trial judge described what Mr.

Patterson decided to do instead: …As a result of which, he decided that his only recourse was to play along but not intending to participate in the conspiracy, and that isthe reason why the telephone texts that he received and his answers to them are as they were. He was not a willing participant and hewasn’t going to do it.

He also says, and gives his explanation of the night in question, how this was just weighing on him so much that he just had to go for awalk to clear his head, even though his child was home alone… [62] The trial judge undertook a granular review of the text exchanges between Mr. MacLeod and Mr. Patterson. He concluded thathe did not believe Mr. Patterson’s “playing along/stalling” explanation for the messages: …In reviewing those texts and in reviewing the evidence provided by Mr. Patterson, I don’t believe Mr. Patterson.

The evidence, it justdoesn’t make sense, that he would be as detailed as to bring these goods to that location near his house, and in the end, as the Crown hasasserted, that if he was going to have them do that and then not deliver the goods, he was putting himself in a deeper hole than he’d everbeen than just by refusing to participate. He now would look like somebody who was ripping off these people, and in his position as ajail guard I think he’d be more than appreciative of how that would be taken. I don’t believe him. [63] In assessing the plausibility of Mr.

Patterson’s explanation of his strategy for dealing with Mr. Oakley and Mr. MacLeod, anddismissing it, the trial judge was entitled to use common sense and logic. It was a reasonable inference that Mr. Patterson’s purportedscheme could only have invited the wrath of the conspirators – actively negotiating the price and the drop-off and then refusing to followthrough. [64] The text messaging between Mr. MacLeod and Mr. Patterson does not indicate a strategy to deflect the Oakley-MacLeodconspiracy.

The exchanges work out the logistics of a plan to smuggle contraband drugs into the CNSCF – what the package is going toconsist of (“just pills”), when the drop is going to be made, where the package is to be deposited - a location identified by Mr. Pattersonwith meticulously detailed directions, how much Mr. Patterson is going to be paid with the price set by him, and an acknowledgement -“Got it” – that he knew the delivery has been made. [65] The trial judge’s determination that he disbelieved Mr. Patterson took care of the first branch of the W.(D.) analysis.

Headdressed the second branch and concluded there was nothing in Mr. Patterson’s evidence that raised a doubt. He then proceeded toassess whether the remaining evidence satisfied the requirement of proof beyond a reasonable doubt. [66] Mr. Patterson says that at this point the trial judge’s analysis fell into error. He says the trial judge should have considered thesurveillance evidence earlier in his W.(D.) analysis, when he was assessing Mr. Patterson’s credibility.

He says that had the trial judgedone so, the fact, as confirmed by the surveillance, that he did not collect the package from the mailbox should have been fatal to theCrown’s case against him. In Mr. Patterson’s submission, this is evidence he was not carrying out the conspiracy and was not inpossession of the contraband package that had been dropped off. [67] The trial judge was very much alive to the surveillance evidence. He referenced it each of the three times he reviewed theevidence before he began his analysis.

There was no obligation on him to recite every piece of evidence at every juncture of his analysis.There is no requirement “to itemize every conceivable issue, argument or thought process” (R. v. O’Brien, 2011 SCC 29 ,[2011] 2 S.C.R. 485, at para. 17). What is expected is that: …read in the context of the entire record, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issuesbefore the court. (R. v. H.S.B., 2008 SCC 52 , [2008] 3 S.C.R. 32, at para. 8) [68] The trial judge could make no sense of Mr.

Patterson’s late-night walk, having left his two-year old daughter alone in thehouse, except that he was checking on the mailbox. This was a reasonable inference, and one the trial judge was entitled to draw. As heaptly put it, why Mr. Patterson did not retrieve the package in the mailbox, a package he knew was there, is something, “We’ll neverknow”. [69] The trial judge accepted Mr. Patterson’s evidence that he did not notice the police surveillance, and dismissed the possibilitythat he avoided the mailbox because he knew he was being watched. Mr. Patterson got the benefit of this finding.

What eliminated anydoubt for the trial judge was Mr. Patterson going for a walk “at that hour of the morning, and not anywhere else but up past themailbox…”. The trial judge noted that Mr. Patterson was “only one of two people who knew those drugs would be in that mailbox.” [70] Mr. Patterson wants to re-visit the issue of the unclaimed package, raising the following questions in his factum: 46. As noted, the judge was not able to conclude the surveillance had been exposed. Therefore, any finding of fact consistent withguilt required a finding that Mr. Patterson intended to pick up the package at a later time.

But why would he do this? Why would he notuse the cover of darkness and the quiet of the middle of the night to move the package from the highly exposed mailbox and secret it tothe safety and privacy of his home? The judge’s findings are that Mr. Patterson would rather commit his crime in broad daylight underthe curious eyes of his neighbours and, possibly, risk removal of the package from the very public drop point by unsuspecting thirdparties. [71] The trial judge properly resisted any speculation about why Mr.

Patterson went back home without the contraband, includingwhether he intended to collect the package from the mailbox on his way to work for a shift starting at 2 p.m. The trial judge said thatmight be the explanation for why he didn’t retrieve the drugs in the middle of the night, but, as he correctly noted: “nothing turns on that,really.” [72] And nothing does turn on that. By the time Mr. Patterson walked by the mailboxes, the offences were complete. As the trialjudge found, after his careful review of the evidence, Mr.

Patterson had demonstrated, through his text messages and his conduct, therequisite intent to actively participate in the conspiracy. He had constructive possession of the drugs in the mailbox. He knew they were

there and he could exercise control over when to remove them. He simply chose not to do so at 1 a.m. in the morning. [ 73 ] The text messaging and police surveillance of Mr. Patterson’s late-night walk was compelling evidence that he had the requisite intent. Only twenty minutes after texting Mr. MacLeod, “Got it”, Mr. Patterson was out the door of his home, heading for the mailboxes. The trial judge’s conclusion that his reason for leaving the house related to the contraband drop at the mailbox he had identified for Mr. MacLeod was a wholly rational one. He was not required to determine when Mr.

Patterson was planning to collect the contraband and he correctly did not speculate about it. [ 74 ] Contrary to the appellant’s submission, the trial judge did not “piecemeal” the evidence in assessing Mr. Patterson’s credibility. He conducted a legally correct W.(D.) analysis, and based his findings on the whole of the evidence. His reasons demonstrate he examined all the evidence before him in his search for reasonable doubt. He found none and convicted. [ 75 ] The trial judge’s reasons show him to have conducted a painstaking, thorough, and logical examination of all the evidence.

He drew reasonable, supportable inferences. His comprehensive analysis of the text messages, the surveillance evidence, and Mr. Patterson’s testimony resulted in a well-reasoned determination that the Crown had proven, to the required high standard, all the elements of the offences. Contrary to the central tenet of the defence’s argument, the Crown’s case did not fall short of proof beyond a reasonable doubt because Mr. Patterson left the package in the mailbox. The breach of trust conviction properly followed from the determination of Mr.

Patterson’s culpability for conspiracy and his constructive possession of the contraband drugs. Conclusion [ 76 ] The trial judge’s decision was a meticulous examination of all the evidence before him. He committed no errors in his assessment of Mr. Patterson’s credibility and reached his conclusions on guilt only after considering all of the evidence he had heard. His verdicts were entirely reasonable and supported by the evidence. I would dismiss the appeal and uphold Mr. Patterson’s convictions. Derrick, J.A. Concurred in: Van den Eynden, J.A. Saunders, J.A.