Docket: CACR2399 Her Majesty the Queen Appellant - v. -, 2014 SKCA 140

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 140 Date: 2014-12-31 Between: Docket: CACR2399 Her Majesty the Queen Appellant - and - Jason Harry Heaton Respondent Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Wade McBride and Alexandra Pace for the Appellant Jane Basinski for the Respondent Appeal: From: Provincial Court Heard: December 16, 2014 Disposition: Acquittal set aside, conviction entered, remitted for sentencing Written Reasons: December 31, 2014

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Jackson J.A. I. Introduction [ 1 ] In this appeal, the Court must consider whether it offends the principle against self-incrimination to convict an accused based on inculpatory statements made while testifying in response to the Crown’s case. [ 2 ] Here, Jason Heaton was charged with possession of cocaine for the purpose of trafficking.

He testified and admitted to possessing cocaine for the purpose of trafficking within the time period covered in the information, but his admission referred to cocaine other than what had been the focus of the trial up to that point. The trial judge concluded that Mr. Heaton’s admissions fell squarely within the information, but that it would be unfair to convict him because the case against him had completely changed.

The question arising from these skeletal facts is this: did the trial judge err in law or misapprehend the evidence when he acquitted the accused on the basis that the case had changed completely from the case he had to meet when he chose to testify? II. Overview [ 3 ] On June 26, 2013, Constable Meier received information that someone had stolen a white 2008 Pontiac G6. The owner of the vehicle suggested that the police should find Mr. Heaton in order to find the stolen vehicle. [ 4 ] Later that same day, Constable Meier drove by Mr. Heaton’s residence where she saw a white 2008 Pontiac G6.

In the ensuing investigation, the police found 17.8 grams of cocaine among other items of contraband in the stolen vehicle. They also found Mr. Heaton’s mobile telephone, which contained a large number of text messages. [ 5 ] Mr. Heaton was charged with a number of offences. The only offence that is relevant to this appeal is that on or about June 26, 2013 he had in his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19. III.

Proceedings in the Trial Court [ 6 ] The primary theory of the Crown’s case was that Mr. Heaton had control over the Pontiac G6 and, therefore, he legally possessed all of the contraband contained in it. The Crown built its case for possession from a series of pieces of evidence beginning first with the accepted facts that the vehicle was outside of Mr. Heaton’s home and his cell phone was in it. [ 7 ] The cell phone yielded a large quantity of text messages that related, in one way or another, to the various items of contraband contained in the vehicle.

The messages pertinent to the possession of cocaine for the purpose of trafficking were as follows: Message Time (CTZ) Incoming/ Outgoing Text 337 17:10:25 O Is there any food around for me? 338 17:10:36 O Can I get something to work with? 339 17:12:33 I Yea I gues just was smoking on what do u have onb u or 340 17:30:29 O Well I don’t have nothing bro cause I invested in this old money and that sks … 347 17:41:39 O I need some food bro lots of sales waiting on me 348 17:42:40 I Ok 349 18:47:18 O So what do you figure?

Can I get a half of each and some dilly? 350 18:48:42 I I got no dilly but yea ill just do full but I need as much as I can atm 351 18:49:07 O Ok bro I’ll bring you everything I make off it 352 18:49:30 O Bro trust me this money thing will pay off a few grand … 355 18:53:48 O Can I come see you 356 18:56:08 I Yup 357 18:56:45 O Same place? 358 19:06:28 O Bro? 359 19:09:31 I Ramada … 369 19:22:02 O I’ll holler at you when I’m there 370 19:22:24 O I’ll be quick wit it too bro I’m in hustle mode …

373 19:56:04 I Where r u 374 19:56:20 O On circle turning onto idylwild 375 19:10:34 O Here 376 20:14:25 O In a white g6 close by the busy street 377 20:18:10 I Do u see him 378 20:19:25 I He’s on the road by ramada Message Time (CTZ) Incoming/ Outgoing Text [ 8 ] In addition to filing a copy of all of the text messages found on Mr. Heaton’s phone, the Crown called Cst. Chad Kuffner of the Saskatoon Integrated Drug Unit to testify. The trial judge qualified him to give expert testimony with respect to cocaine and methamphetamine trafficking. [ 9 ] Cst. Kuffner testified about three matters.

First, he testified about what the text messages meant. He provided a lexicon of the various terms: “food” means drugs; “get” means to traffic; “atm” means at the moment and so on. Specifically, in relation to questions 349 to 355, he testified that the sender was interested in one ounce of drugs and some Dilaudid. Second, he offered the opinion that the user of the cell phone was actively involved in the drug trade and he likely supplied cocaine at the level of an ounce. Third, he gave the opinion that the cocaine in the Pontiac G6 was held for the purpose of trafficking. [ 10 ] Mr.

Heaton testified in his own defence. He admitted that around 8:00 p.m. on June 25, 2013, the day before the date used in the information, he “fronted” “maybe four or five ounces” of cocaine from someone at the Ramada Hotel and then he “fronted” it to others within an hour or two such that he had none left when he and the driver of the Pontiac G6 arrived back at his home in the early hours of June 26, 2013. [ 11 ] He testified that he was not the owner of the Pontiac G6 and nor was he in control of it or any of its contents—including the cocaine found in it.

He explained the presence of his cell phone in the vehicle by admitting that he had been in it, earlier that day, and that he must have accidentally dropped his phone when he exited the vehicle. [ 12 ] During cross-examination, the Crown pursued the line of questioning, opened first during examination-in-chief, about the acquisition and distribution of cocaine. Mr. Heaton repeated his testimony that someone had driven him to the hotel, where he picked up a “few” ounces of cocaine and he gave that cocaine to someone else. He explained the various text messages referred to above. He confirmed Cst. Kuffner’s

interpretation with two qualifications: instead of looking for one ounce of cocaine and some Dilaudid as a street-level dealer, he was a “middleman” between the seller and those on the street; and he added the detail that he was actually looking to get one-half pound of cocaine and one-half pound of crack plus some Dilaudid. [ 13 ] At this point, the trial judge challenged the relevance of the Crown’s line of questioning about what had happened at the Ramada Hotel, asking how it related to anything he would have to decide. The Crown answered by saying that Mr.

Heaton’s admission was another avenue the Crown could use to prove that Mr. Heaton was in possession of cocaine for the purpose of trafficking on or about June 26, 2013. Without being asked, Mr. Heaton interjected, “Yeah, I’m not denying that at … at any point here” (Transcript, p. 513). The Crown then left the matter. [ 14 ] In final argument, Crown counsel offered the trial judge three theories to resolve the case. First, Crown counsel urged the trial judge not to accept any of Mr. Heaton’s evidence. Instead, he should rely on the Crown’s evidence showing Mr. Heaton controlled the vehicle and its contents.

Second, Crown counsel suggested that the trial judge could accept some of Mr. Heaton’s evidence, but not that he had got rid of all of the cocaine; what was left in the Pontiac G6 was the remnant of what had been acquired the night before. Third, if the trial judge accepted all of Mr. Heaton’s evidence, he could still be found guilty of possessing cocaine for the purpose of trafficking on his own admission that he had acquired cocaine the night before—which brought him within the four corners of the information. [ 15 ] To be clear, Crown counsel submitted that its “stronger case” was that Mr.

Heaton should not be believed when he denied possessing the cocaine in the vehicle but if the trial judge doubted that proposition, he could convict Mr. Heaton of the charge before the Court on the basis of his admission that he had picked up cocaine during the hours before midnight on June 25, 2013. [ 16 ] In support of this theory, the Crown argued that it had already led evidence to develop a circumstantial case of possessing cocaine for the purpose of trafficking, which would encompass the cocaine Mr. Heaton picked up the night before the day referred to in the information.

In the course of its submissions, the Crown relied on R v Murray , 2003 SKCA 120 , 241 Sask R 101 [ Murray ] . IV. Decision of the Trial Judge [ 17 ] The trial judge indicated that Murray did not apply because it concerned an accused who was charged with having a grow-op at a particular place and the only matter that changed as a result of the accused testifying was when the accused had committed the crime. [ 18 ] According to the trial judge, the Crown could not shift its theory from the cocaine found in the car to some other cocaine. The only constants between the Crown’s theories before Mr.

Heaton testified, and after, were the accused, the time and the nature of the drug. [ 19 ] In his oral decision, the trial judge stated that he had a reasonable doubt that Mr. Heaton was in possession of the vehicle or any of its contents. This appears to have been because the driver remained unknown and unidentified. The trial judge also declined to accept the Crown’s third theory. He indicated that Mr. Heaton’s admissions “fall squarely within the cocaine trafficking allegation” (Transcript, p. 626) in the information, but he concluded that the Crown’s theory was “completely different” from the charge that Mr.

Heaton came to court to address. In his ruling, the trial judge declined to convict Mr. Heaton on the basis that it would be “unfair.” [ 20 ] The Crown appeals Mr. Heaton’s acquittal to this Court. The Crown has a right of appeal from an acquittal on “a question of law alone”: Criminal Code , RSC 1985, c C-46, s 676(1)( a ). The question of law is whether the trial judge erred in law or misapprehended the evidence when he acquitted the accused on the basis that it would be unfair to convict him because the case had completely changed

from the case he had to meet when he chose to testify. V. Analysis A. Did the trial judge err in law or misapprehend the evidence when he acquitted the accused on the basis that it would be unfair toconvict him because the case had completely changed from the case he had to meet when he chose to testify? [21] Underlying this question are two streams of law. The first pertains to when the Crown is bound by its theory of the case.

Thesecond pertains to the accused’s right to know the case he or she faces before taking the stand to testify. [22] Under the first stream, the Crown is not required to particularize its theory as to the manner in which a crime is alleged to havebeen committed: see R v Pangman (1999), (MB KB), 143 Man R (2d) 175 (QB) at para 7 [Pangman].

InPangman, Krindle J. stated the Crown’s theory “must be somewhat fluid in order to accommodate changes in the evidence.” In thatregard, she mentioned specifically that “an accused, deciding to take the stand at the very end of the trial, could well cause a dramaticshift.” [23] Earlier authorities bear out this view. In R v Govedarov, Popovic and Askov (1974), (ON CA), 16 CCC (2d) 238(Ont CA), aff’d (SCC), [1976] 2 SCR 308, Martin J.A. contrasted the Crown’s obligations to give particulars with theCrown’s theory of the case.

The Crown is required to prove particulars, but it is not strictly bound to prove its theory even when oralassurances are made at the opening of the trial in open court (see also R v Groot (1998), (ON CA), 129 CCC (3d) 293(Ont CA) [Groot], aff’d (SCC), [1999] 3 SCR 664). These authorities stand for the general proposition that the Crownmay change its theory in accordance with the evidence adduced at trial, including (in certain circumstances) when the accused chooses totestify.

The Crown stressed this line of authority. [24] The other stream of law concerns the principle that an accused is required to know all of the evidence that the Crown can use insupport of a conviction prior to making decisions regarding his or her defence: see R v Underwood, (SCC), [1998] 1SCR 77 at para 5 [Underwood]; R v Rose, (SCC), [1998] 3 SCR 262 at para 27 and para 102. According toMr. Heaton’s counsel, the doctrine of the “case to meet” is fundamental to the concept of a fair trial, which is a constitutional right.Mr.

Heaton’s counsel stressed this line of authority. [25] Applying this law to the within appeal, it is critical to review the information charging Mr. Heaton and the trial judge’s reasons foracquitting him.

The charge reads as follows (Information 44332783): JASON HARRY HEATON … (3) on or about the 26th day of June, A.D. 2013 at or near SASKATOON, SASKATCHEWAN did UNLAWFULLY HAVE IN HIS/HER POSSESSION A CONTROLLED SUBSTANCE TO WIT: COCAINE FOR THE PURPOSE OFTRAFFICKING, CONTRARY TO SECTION 5(2) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT … And, these are the trial judge’s reasons: Finally, I’m invited to convict him on a charge of trafficking cocaine on the basis that he admitted to picking up cocaine and distributingit to dealers.

The admissions that he made fall squarely within the trafficking cocaine allegation, as it has been charged. It is, however,completely different from the charge that Mr. Heaton came into court to address, and again I think it would be unfair to convict him onthat, and I decline to do so. I believe that addresses all matters. (Emphasis added, Transcript, pp. 626–627) [26] As will be noted, the trial judge’s reasons are brief. He does not make reference to any authorities or to any of the evidence.[1] It isclear, however, that the trial judge believed that the case against Mr.

Heaton had changed so significantly from when the Crown closedits case and he decided to testify that his right to a fair trial was jeopardized. But is that so? [27] It is useful to recount the case facing Mr. Heaton when he testified. He was charged with possessing cocaine on or about June 26,2013. The text messages appeared to show that he had acquired a drug or drugs at the Ramada Hotel. According to Cst. Kuffner, the userof the cell phone was a cocaine trafficker at the one-ounce level. Cst.

Kuffner testified that the exchange of messages with respect to theRamada Hotel showed someone who was out of drugs and who needed to acquire more, and who indeed did pick up more, using aPontiac G6 vehicle. The substance in the Pontiac G6 was cocaine and slightly in excess of one-half ounce. Cst. Kuffner opined that thecocaine in the Pontiac G6 was not being held for the purposes of personal use, but would be held for the purposes of trafficking. [28] Thus, the circumstantial case Mr.

Heaton had to meet was that he “possessed” cocaine as a result of the “buy” at the RamadaHotel, and he “possessed” the cocaine found in the Pontiac G6. While everyone, including the Crown, was focussed on the cocaine inthe Pontiac G6, does that prevent the Crown from shifting its theory to the cocaine acquired at the Ramada in order to convict theaccused?

The resolution of this question requires a more detailed understanding of the principle against self-incrimination and its relationto trial fairness as applied in this context. [29] The leading authority on what constitutes trial fairness in terms of the accused’s right to know the case to meet is Underwood.

While Underwood dealt with when a Corbett application should be made, Lamer C.J. made these helpful comments describing theaccused’s right to know: 5 … the accused must have an opportunity to make an informed decision whether to testify and, accordingly, should know asmuch as possible about the consequences of that decision in advance of having to make it. 6 … the ultimate goal of the procedural and substantive protections in the criminal justice system are to ensure that trials arescrupulously fair.

Our criminal process is based upon the principle that before the accused calls evidence in his own defence, he musthave knowledge of the case to be met. The extent to which his criminal record will be admissible against him will encompass part of thatcase. The “case-to-meet” principle is a fundamental tenet of the criminal justice system, firmly rooted in the common law and an integralpart of the principles of fundamental justice (R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451), which are protected by s. 7 ofthe Canadian Charter of Rights and Freedoms.

It is part of the broader principle against self-incrimination, which has its roots in thepresumption of innocence and the power imbalance between the state and the individual. See Dubois v. The Queen, (SCC), [1985] 2 S.C.R. 350, and R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555, at p. 578. (Emphasis added) [30] Most often the principles concerning the accused’s right to know the case to meet play out when the Crown seeks to re-open itscase after the accused has begun to answer the Crown’s case. A trial judge’s discretion in such circumstances is limited.

See, forexample, R v P.(M.B.), (SCC), [1994] 1 SCR 555 and R v S.G.G., (SCC), [1997] 2 SCR 716. Here,the Crown, however, did not apply to re-open its case; the accused testified of his own volition and as a result confirmed a materialaspect of the Crown’s case that was already in evidence, i.e., the fact that Mr. Heaton “possessed” a drug the night before. [31] In that regard, this case is similar to R v Pincemin, 2004 SKCA 33, 249 Sask R 86 where it was only through the accused’stestimony the Court learned that he had been driving while under the influence of alcohol before bringing his vehicle to rest.

As a resultof this admission, the Court convicted the accused of driving while impaired when the actual charge against him was having care andcontrol of a vehicle while impaired. The Court held that it was not unfair to convict the accused based on his exculpatory statementsmade while testifying in response to the Crown’s case: [30] The respondent chose to testify. An accused person who testifies, may, in the course of giving exculpatory evidence on oneissue, provide evidence that establishes facts that supports the prosecution’s case.

An accused person who chooses not to testify canmake closing submissions that the Crown failed to establish its case or prove relevant facts. But when an accused does testify, histestimony becomes part of the “whole of the case” to be considered by the judge in a non-jury trial. This is made clear in R. v. Morabito, (SCC), [1949] S.C.R. 172. (Emphasis added) [32] The Court made it clear that an accused need not know whether he or she would have been convicted based on the Crown’s casebefore testifying. Guilt or acquittal must be delivered at the end of whole case (para. 29).

Importantly, the Court held that the Crowncould rely upon the testimony of an accused person, who in the course of giving exculpatory evidence, provides evidence that establishessignificant facts that tend to support conviction on an included or related offense.[2] [33] The precise boundaries of when the principle against self-incrimination will be offended are not clear.

As McLachlin J. (as shethen was) stated in R v Harrer (1995), (SCC), 3 SCR 562, trial fairness also requires the Court to take into account theperspective of the community: 45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. Afair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection isseldom attained.

A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness tothe accused. [34] Determination of when the principle against self-incrimination will be offended depends in large measure on whether anaccused suffers prejudice, which in turn depends on whether the accused has been deprived of the right to make full answer.Understandably, courts are reluctant to quantify or place a measure on when such fundamental and yet open-textured principles will beinfringed.

Endlessly changing fact patterns dictate the need for flexibility in order to ensure trial fairness. Here, the fundamental issue iswhether the change in the Crown’s theory prejudiced Mr. Heaton in his defence. In my view, the resolution of this issue depends onwhether the Crown seeks to impose liability on Mr. Heaton on a basis materially different from that relied upon by the Crown before itclosed its case.

Furthermore, fairness in this case must also be balanced with considerations of the proper functioning of theadministration of justice. [35] There is no doubt that the sticking point in this case is that the cocaine Mr. Heaton acquired the night of June 25 is not thecocaine found in the Pontiac G6. But does that fact so materially change the case that to convict in relation to it prejudiced Mr. Heaton?

Ihave concluded that it does not for these reasons. [36] First, this is not the type of case where an accused gives inculpatory evidence of a different offence as part of giving exculpatoryevidence of the offense before the Court. Mr. Heaton’s inculpatory evidence concerned the same charge he came to Court to address.Thus, the Court does not have to confront the issue of what it would do if the accused made exculpatory statements in relation to adifferent offense. When Mr. Heaton elected to respond to the Crown’s case by testifying himself, he confirmed that Cst.

Kuffner’s expertopinion was in fact true: he had been acquiring cocaine on the night in question, and possessing it. In that regard, this case is similar toMurray. His testimony created the basis for a change to the Crown’s theory but not in the charge or its particulars. [37] Second, this is not simply a case of Mr. Heaton answering the case against him and in doing so admitting the commission of thesame charge. It is that—but it is not that alone. In order to meet the Crown’s case against him—that he had committed the offense of

possession for the purpose of trafficking the cocaine found in the Pontiac G6—he had to explain what had happened the night before atthe Ramada Hotel. In other words, Mr. Heaton was not conscripted to give evidence against himself in relation to the other cocaine—hehad to testify in relation to it. When the Crown closed its case, Mr. Heaton had to testify to explain what the text messages meant vis àvis the cocaine in the Pontiac G6 in order to avoid conviction. As Cst.

Kuffner opined, those text messages revealed possession ofcocaine at an earlier point—it was possession of that earlier cocaine that formed a breadcrumb trail to the cocaine in the Pontiac G6. [38] Third, his exculpatory evidence confirms what was already in evidence. Here, the Crown had proven circumstantially that Mr.Heaton had acquired a drug at the Ramada Hotel, presumed by the expert to be cocaine.

What was missing was proof beyond areasonable doubt that the drug was in fact cocaine or what quantity he had acquired. [39] Fourth, the Crown’s case in relation to the other cocaine was not complete, but it was compelling. Given its strength, it would havebeen difficult for Mr. Heaton to have persuaded the trier of fact that he had not acquired the cocaine the night before. He could do soonly if he could have convinced the trier of fact that it was not he who had used the phone.

If he had tried to do so, it is likely he wouldnot have been believed because of the vast number of text messages personal to him. [40] Fifth, the Crown initially focused on showing that Mr. Heaton possessed the cocaine in the vehicle as the basis for culpability, butthe Crown did not expressly reject any other theory of liability (to use the words of McMurtry C.J.O. in Groot). Even on the Crown’sinitial theory, the text messages on Mr. Heaton’s cell phone were tendered to show that Mr.

Heaton had acquired cocaine and that thecocaine in the vehicle was either the end result or “left over” from that buy. [41] Sixth, this was not an instance where the Crown raised an unanticipated alternative theory of liability for the first time in closingargument, as occurred in R v McCune (1998), (BC CA), 116 BCAC 267, or where the Crown sought to re-open itscase after the accused has testified, as occurred in the authorities above mentioned.

It is also not like R v Zoe, 2009 NWTTC 19, wherethe Crown made a deal with the accused not to use a prior statement of an accused and then, when the accused chose to testify, tried touse the statement against him. Here, the Crown was passive. It was the accused’s own testimony in examination-in-chief, and thatdevelopment alone, which triggered the change in the Crown’s theory. [42] Seventh, when the Crown began to prosecute the state’s case, it was unaware of when Mr. Heaton had allegedly acquired thecocaine in the vehicle. Possession is often a continuing state.

There may be a period of time between when a trafficker acquires a drugand when it is distributed. The assumption that the cocaine in the vehicle was part of the inventory acquired during the previous eveningas referenced in the text message was a reasonable theory for the Crown to have put forth—until Mr. Heaton testified, and his testimonygave rise to a different theory. [43] Eighth, Mr. Heaton did not attempt to apply under s. 587 of the Criminal Code for particulars so as to confine the case to thecocaine in the Pontiac G6. Whether he would have been successful or not is another matter.

The point is, he did not attempt toparticularize the information. If he had applied, the judge hearing the matter may well have refused for the same reason I am of the viewthat convicting him would not be unfair: it would be clear to the judge that Mr. Heaton wanted to be able to testify that he had possessedother cocaine for the purpose of trafficking within the period of time covered by the information. [44] Ninth, the trial judge found that Mr. Heaton did as a matter of fact and law possess cocaine for the purpose of trafficking during theperiod covered by the information.

The charge as laid, and the evidence adduced during the Crown’s case, encompassed the prospectthat Mr. Heaton had acquired cocaine the night before. Mr. Heaton’s admissions and his text messages show that he picked up cocaineonly four hours before midnight before June 26, 2013. To acquit him in those circumstances represents a very real possibility of bringingthe administration of justice into disrepute (see Groot at para. 24). [45] Thus, I have concluded that the trial judge erred by finding that the case “was completely different” and therefore it would beunfair to convict Mr. Heaton.

Given how the case unfolded, the Crown was entitled to revise its theory to accord with the evidenceadduced at trial. The text messages and the expert’s

interpretation of them were part of the Crown’s case before Mr. Heaton testified.Mr. Heaton elected to testify and confirmed evidence that was already before the Court. He admitted to possessing cocaine the nightbefore, which is what the text messages said. [46] Using the words of Krindle J. in Pangman, Mr. Heaton’s decision to take the stand caused a shift in the Crown’s theory, but histestimony changed neither the elements nor the particulars of the offence as charged.

Applying R v Gormley (1999), (PE SCAD), 140 CCC (3d) 110 (PEI SC), the revision to the Crown’s theory to accord with the evidence adduced at trial did not depriveMr. Heaton of his right to a fair trial. [47] As contemplated in Pangman, the Crown changed its theory solely as a result of Mr. Heaton’s decision to testify in examination-in-chief. Any alleged prejudice arose only because of that decision and not because of any unilateral action on the Crown’s part.Mr.

Heaton’s testimony that he possessed a different quantity of cocaine for the purpose of trafficking earlier the same day or thepreceding day was a tactical element of his own strategy. And his testimony, admitting to possessing and trafficking cocaine, played arole in fostering a reasonable doubt in the trial judge’s mind regarding his culpability with respect to the cocaine located in the stolenvehicle. [48] While the Crown’s initial theory focused on the cocaine in the vehicle, the text messages painted part of the picture thatMr. Heaton completed.

There would have been no other reason for the Crown to have led evidence about the content of the textmessages. The text messages suggested that Mr. Heaton was involved in possessing and trafficking cocaine over the same 20 hourscovered by the text messages. Mr. Heaton confirmed the Crown’s case—but he needed to testify. It he had not done so, he would havebeen convicted in any event. [49] In conclusion, the Court must balance fairness to the accused with the need to preserve the public’s respect for the

administration of justice. In my view, the trial judge erred in law by concluding that while Mr. Heaton’s admissions fell squarely withinthe cocaine related allegation as it had been charged, the case was completely different from the one that Mr. Heaton came to court toaddress and it would be unfair to convict him on that basis.

He either erred in law by misapplying the law in relation to the principleagainst self-incrimination or by confining the Crown to the particulars of its initial theory, as opposed to the charge, or hemisapprehended the evidence, which included possession of other cocaine as part of the Crown’s case. [50] As a matter of law, the principle against self-incrimination was not infringed. Mr. Heaton’s admission to possessing cocaine wasnot a separate transaction from the charges framed. It was validly subsumed within the charge before the Court. Mr.

Heaton’s admissionidentified and particularized not only the drug, i.e., cocaine, but it also sufficiently particularized the quantity for the purposes ofsentencing. B.

Should the Court order a new trial or enter a conviction? [51] In R v Cassidy, (SCC), [1989] 2 SCR 345 [Cassidy], Lamer J. (as he then was) described when it is appropriateto enter a verdict of guilty when a court of appeal decides that an appeal must be allowed: The Crown replies that the Court of Appeal may allow a Crown appeal against an acquittal entered by a trial judge and substitute averdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the Court of Appeal that, had therebeen a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should havebeen found guilty but for the error of law.

In this respect, the principle that has been established at common law is that all the findingsnecessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue (Vézeau v. The Queen, (SCC), [1977] 2 S.C.R. 277, at pp. 291–92, and R. v. Courville (1982), (ON CA), 2 C.C.C. (3d) 118 (Ont.C.A.), at p. 125, aff. sub nom., Courville v. The Queen, (SCC), [1985] 1 S.C.R. 847). (Emphasis in original, pp. 354–355) [52] In Cassidy, the Court of Appeal allowed the Crown’s appeal from an acquittal and entered a conviction.

The Supreme Court ofCanada sustained the Court of Appeal’s decision to set aside the acquittal, but ordered a new trial on the basis that not all the findings offact necessary to support a verdict of guilty had been made (p. 355). [53] In this case, however, the trial judge held that the accused’s admissions fell “squarely within the cocaine trafficking allegation, as it[had] been charged” (Transcript, p. 626–627). This Court can have no clearer indication that all the findings necessary to support averdict of guilty have been explicitly made than this.

It can be said with confidence that but for the trial judge’s misapprehension of thelaw or the evidence, Mr. Heaton would have been found guilty. [54] In that regard, this appeal is similar to R v Audet, (SCC), [1996] 2 SCR 171 where the Court found that the trialjudge made all the findings of fact necessary to support a verdict of guilty. Like in Audet, all the findings necessary to support a verdict ofguilty have been explicitly made in this case. The trial judge found that Mr. Heaton’s testimony sufficiently proved he had possessedcocaine for the purpose of trafficking during the late evening of June 25, 2013.

He should have convicted him of that charge. It istherefore appropriate for this Court to exercise the discretion conferred on it by s. 686(4) of the Criminal Code and enter a verdict ofguilty. This is also what the Court did in Groot which, in its turn, relied on Cassidy. [55] In the result, the appeal is allowed, the acquittal is set aside and a conviction is entered. The matter is remitted to the trial judge forsentencing. VI. Conclusion [56] In conclusion, this Court sets aside the acquittal and enters a conviction for possessing cocaine for the purpose of traffickingcharge.

The matter is remitted to the trial judge for sentencing in accordance with the evidence adduced at trial. [57] If Mr. Heaton is no longer in custody, he has until 5:00 p.m. on January 2, 2015 to present himself to a local detachment of theRCMP. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of December, A.D. 2014. “Jackson J.A.” Jackson J.A.I concur. “Jackson J.A.”for:Ottenbreit J.A.I concur. “Herauf J.A.” Herauf J.A.