R v Morin, 2022 SKCA 46

Court of Appeal for Saskatchewan Docket: CACR3369 Citation: R v Morin , 2022 SKCA 46 Date: 2022-04-08 Between: Terrence Ralph Albert Morin Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Caldwell and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore On appeal from: Provincial Court, Prince Albert Appeal heard: February 8, 2022 Counsel: Carl Swenson for the Appellant Robin Neufeld for the Respondent Caldwell J.A. I.

INTRODUCTION [ 1 ] Terrence Ralph Albert Morin appeals against convictions after trial for the offences of possessing methamphetamine and of possessing cocaine, each for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 . He has not appealed against his global sentence of 22 months of incarceration followed by three years of probation. [ 2 ] Mr. Morin asserts that the trial judge erred by failing to find that his rights under ss. 8 and 9 of the Charter had been breached in the circumstances of his arrest.

He says that the trial judge also erred by declining to hear his application under s. 11(

b) of the Charter , where he had sought to establish that he had not been tried within a reasonable time. More fundamentally, Mr. Morin submits that the verdicts are unreasonable, chiefly because the circumstantial evidence adduced by the Crown does not, in his view, support the conclusion that the only reasonable inference to be drawn was that he had been trafficking in methamphetamine and cocaine. [ 3 ] I find that each of the allegations of error is unfounded and I would dismiss the appeal. II.

BACKGROUND [ 4 ] This case involves an August 8, 2016, traffic stop of an unregistered vehicle in Prince Albert, Saskatchewan. When the police approached the vehicle, the driver exited it and was followed by an officer on foot. When other officers reached the vehicle, they saw that two individuals were still inside it. Mr. Morin was in the front passenger seat. He exited the vehicle and identified himself to the police without being asked to do so. The backseat passenger did the same.

This left the vehicle empty of occupants with its windows rolled down and its doors open. [ 5 ] While standing beside the vehicle, an officer observed what he took to be methamphetamine in a clear plastic bag in the open centre console between the front seats. The police then arrested Mr. Morin and the backseat passenger for possession of a controlled substance for the purpose of trafficking. In searches incidental to their arrests, the police discovered about $2,000 in cash in bundles and a cellphone on Mr. Morin, as well as a scale and three bags, each containing 0.4 grams of cocaine, on the backseat passenger.

Mr. Morin’s cellphone was later found to contain messages indicative of drug trafficking. The police seized 10.7 grams of cocaine and 3.7 grams of methamphetamine from the centre console of the vehicle. No drugs were found on Mr. Morin. He volunteered to the police that he had recently visited a casino in Saskatoon, Saskatchewan, which was where he had won the cash. [ 6 ] When the trial began on June 5, 2019, Mr. Morin sought to have the evidence discovered in the searches excluded under s. 24(2) of the Charter , alleging that the police had breached his ss. 8 and 9 Charter rights.

After a voir dire , the judge dismissed Mr. Morin’s application without considering whether it would have been appropriate to exclude the evidence if he had found a Charter breach. The evidence from the voir dire was applied to the trial. The Crown called the arresting officers as witnesses as well as a police expert, who was qualified in the areas of pricing, packaging, distribution, jargon, trafficking, and consumption of cocaine and methamphetamine. [ 7 ] In his submissions at trial, Mr. Morin argued that the judge should have a reasonable doubt about whether he had knowledge of and control over the drugs.

Although Mr. Morin did not testify or call any evidence, it was argued that he had been unaware of the presence of drugs in the centre console because he was a passenger in the vehicle and that he was simply a drug user looking for people with whom to buy and use drugs. The trial judge rejected these inferences and concluded that, on the totality of the evidence, all reasonable alternatives to guilt had been excluded. He therefore convicted Mr. Morin. This occurred on October 21, 2019. [ 8 ] The trial judge adjourned sentencing to December 20, 2019, so that a pre-sentence report could be prepared. However, due to

issues with the preparation of that report, the sentencing hearing was ultimately rescheduled for May 13, 2020. On that morning, Mr.Morin filed a s. 11(

b) Charter application seeking a stay of proceedings as a remedy for unreasonable delay. The judge declined to abridgethe time for service and dismissed it. III. ISSUES AND ANALYSIS [9] Mr. Morin alleges that the trial judge erred by failing to find a violation of ss. 8 and 9 of the Charter in the circumstances ofhis arrest, by failing to address his application under s. 11(

b) of the Charter, and by finding him guilty when the circumstantial evidenceadduced by the Crown supported reasonable inferences other than guilt. A. Did the trial judge err when finding that the arrest and search were lawful? [10] At root, Mr. Morin’s concern under this ground is with the trial judge’s finding that the methamphetamine and cocaine were inplain view in the vehicle. If the drugs were not in plain view, then the police arguably lacked reasonable grounds to arrest Mr.

Morin.However, the search for and seizure of evidence that is in plain view does not violate s. 8 of the Charter (R v Boersema, (SCC), [1994] 2 SCR 488; R v Tessling, 2004 SCC 67 at para 40, [2004] 3 SCR 432). [11] Whether evidence was in plain view is a question of fact.

An appellate court is not entitled to reweigh the evidence ofcircumstances leading to a finding that evidence was in plain view or to displace that finding unless the appellate court concludes it wasbased on a misapprehension of the evidence or is clearly wrong (R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3; R v Lohrer, 2004 SCC 80 atpara 2, [2004] 3 SCR 732). In this case, Mr.

Morin has failed to persuade me that such an error occurred. [12] The judge’s plain-view finding is thoroughly supported by the testimony of the officer who saw the baggie ofmethamphetamine in the centre console of the vehicle as well as by the dashboard-camera footage from the police cruiser, which is theonly evidence relevant to the finding. In his testimony in chief, the officer said: As I was speaking with [Mr. Morin], the rear passenger, [redacted], also exited the vehicle, without being requested to do so. So now,everyone was standing outside near the vehicle.

The passenger side rear and front door were both open -- ajar. The front passenger -- frontpassenger side window was down. As we were speaking to the individuals on the side of the car, I was now positioned on the passengerside of that vehicle. As I stood there, I noticed the centre console was ajar, approximately six inches. I observed the clear baggie tied in aknot sticking out from the centre console, which was in plain view. And also, a -- a Ziploc -- a small Ziploc clear baggie, kind of right nextto it, a little to the back.

I then took a step closer and observed the -- there was -- there was substance in there, suspected of -- I suspected itto be meth. I then immediately advised all the patrol members to arrest individuals, that there was meth in the vehicle, that there was drugsin the vehicle. [13] Although Mr. Morin attempted to establish through the dash-cam video that the officer had entered the vehicle before he sawthe drugs, the officer maintained that the drugs had been in plain view and that he had directed other officers to arrest Mr.

Morin afterseeing the drugs from the exterior of the vehicle, not after leaning into the vehicle and finding them. [14] Having reviewed the relevant evidence, I am unpersuaded that the trial judge misapprehended it or that his finding that thedrugs were in plain view is clearly wrong. I further find no error in the trial judge’s handling of the issue of whether Mr. Morin had areasonable expectation of privacy in the vehicle. [15] As the judge noted, Mr. Morin was a passenger and the vehicle was not registered to him.

He did not testify or otherwisesuggest that he had any previous connection to it or even that he knew to whom it belonged. The console was open, the drugs were in clearplastic bags and the judge found they were in plain view. I am hard pressed to imagine a more tenuous expectation of privacy by apassenger in a vehicle. See R v Edwards, (SCC), [1996] 1 SCR 128, R v Belnavis, (SCC), [1997] 3SCR 341, and R v Nolet, 2009 SKCA 8, 320 Sask R 179. [16] As such, the trial judge’s conclusion that the police had reasonable grounds to arrest Mr.

Morin withstands appellate review.This means that the search incidental thereto was also lawful (R v Caslake, (SCC), [1998] 1 SCR 51 at para 17; R vClayton, 2007 SCC 32 at para 19, [2007] 2 SCR 725). [17] In short, there is no basis to disturb the trial judge’s conclusions under ss. 8 and 9 of the Charter. Since he had found noCharter breach, the trial judge did not engage in a s. 24(2) analysis, as required under R v Grant, 2009 SCC 32, [2009] 2 SCR 353.Because I find no error in the trial judge’s dismissal the Charter applications, I similarly conclude there is no reason to conduct a s. 24(2)analysis. B.

Did the trial judge err by declining to hear the unreasonable delayapplication? [18] Mr. Morin next argues that the trial judge erred by failing to hear his submissions on the issue of delay. He says his matter took37 months and 16 days to conclude, which—he submits on appeal—runs afoul of the 30-month presumptive ceiling for cases involving apreliminary inquiry as set out in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631. As Mr. Morin marks the calendar, the delay started onAugust 9, 2016, which is the date of the Information, and ended on September 25, 2019, which is when the trial concluded. [19] Critically, Mr.

Morin first attempted to seek Charter relief for this delay on May 13, 2020. As noted, the judge had deliveredhis verdict on October 21, 2019, following which he scheduled a sentencing hearing for December 20, 2019. That hearing was ultimatelyadjourned to May 13, 2020, so that the pre-sentence report could be completed. During that interval, counsel appeared before the trialjudge on five separate occasions, not including December 20, 2019 and May 13, 2020. When the judge asked why, in this context, he hadwaited until May of 2020 to file a delay application, Mr. Morin’s trial counsel said:

MR. SWENSON: Your Honour, I received instructions from my client last night to file it. I had been toying -- or -- or mulling over it, Ishould say, for the past month, about whether or not we should – THE COURT: M-hm. MR. SWENSON: -- file. I looked at the endorsements; I thought they were a bit scant. I wasn’t able to determine whether or not there wasdelay based on the defence application or the Crown application, in terms of when it was moved from QB down to provincial court. [20] The judge then asked for the Crown’s position, which was that Mr.

Morin had not complied with the 14-day notice requirementand that the application should not be entertained. However, the Crown also noted that Mr. Morin’s after-trial application was premisedon an 18-month presumptive ceiling when, in fact, he had had the benefit of a preliminary inquiry and, therefore, the 30-monthpresumptive ceiling applied. The Crown then pointed out that Mr. Morin had waived a meaningful portion of the 37-month delay. [21] After some further discussion with counsel, the trial judge declined to exercise his discretion to waive the notice period and tohear the s. 11(

b) Charter application. Thereafter, the parties continued with their sentencing submissions and the hearing was adjourned toMay 15, 2020, for imposition of the sentence. On that date, Mr. Morin again raised the s. 11(

b) issue and the judge, again, declined to hearit. [22] I see no error by the trial judge in any of this. Aside from the fact that the record does not appear to support a finding ofunreasonable delay, this application came well after trial and after the convictions had been entered and was, for that reason alone,unlikely to succeed (see R v Warring, 2017 ABCA 128, at paras 10–11, [2017] 7 WWR 441; R v Rabba (1991), (ONCA), 3 OR (3d) 238 (CA) at para 5; R v Cameron, 2017 ABQB 539 at paras 12-25).

There were no extenuating or extraordinarycircumstances mitigating the months-long delay in applying for Charter relief. Further, Mr. Morin was seeking, as a remedy, a stay ofproceedings at a point in the criminal trial process when all but the imposition of the sentence had been completed.

In Canada (Minister ofCitizenship & Immigration) v Tobiass, (SCC), [1997] 3 SCR 391, the Supreme Court noted: [90] If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to theintegrity of the judicial system, two criteria must be satisfied before a stay will be appropriate.

They are that: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice. (O’Connor, [ (SCC), [1995] 4 SCR 411], at para. 75.) [91] The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay ofproceedings does not redress a wrong that has already been done.

It aims to prevent the perpetuation of a wrong that, if left alone, willcontinue to trouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterionmust be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para 75. The mere fact that thestate has treated an individual shabbily in the past is not enough to warrant a stay of proceedings.

For a stay of proceedings to beappropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that thecarrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the formeris as well—society will not take umbrage at the carry forward of a prosecution unless it is likely that form of misconduct will continue.There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will beoffensive.

But such cases should be relatively very rare. [23] In R v Cody, 2017 SCC 31, [2017] 1 SCR 659, the Court instructed that, “before permitting an application to proceed, a trialjudge should consider whether it has a reasonable prospect of success” and to dismiss it summarily where there is “no basis upon whichthe application could succeed” (at para 38).

The Court also said, in R v Jordan, that trial judges should “generally dismiss …applicationsand requests the moment it becomes apparent they are frivolous” (at para 63). [24] Given the jurisprudence, the judge’s decision in this case not to abridge the notice period for Charter applications involves nobottom line error because, among other reasons, there was no prospect that Mr. Morin’s application would have been successful in thecircumstances. C.

Did the trial judge improperly reject reasonable inferences of fact that wereinconsistent with guilt? [25] In a trial, the Crown may prove the essential elements of an offence through direct evidence, circumstantial evidence, or acombination of both.

To convict on circumstantial evidence, the trier of fact must be satisfied on the criminal standard of proof that theguilt of the accused is the only reasonable inference to be drawn from the evidence (R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000). [26] In an appeal against a guilty verdict based on circumstantial evidence, the question for the Court is “whether the trier of fact,acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of theevidence” (R v Villaroman at para 55; see also R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381).

Put another way, an appellate court mayinterfere only if the trier of fact’s finding that the evidence excluded any reasonable alternative to guilt is itself unreasonable (R vLearning, 2019 SKCA 5 at para 23; R v Wolff, 2019 SKCA 103 at para 79, 380 CCC (3d) 223; R v Lola, 2020 SKCA 103 at para 22, 392CCC (3d) 284). [27] In this appeal, Mr. Morin submits that the verdicts are unreasonable because the trial judge improperly rejected exculpatory orless inculpatory inferences that were available on the evidence and thereby misapplied the criminal standard of proof.

However, the trialjudge’s reasons, the evidence and the arguments at trial all establish that the verdicts are reasonable. The judge properly informed himself

of the law and performed the analysis it required when finding that Mr. Morin’s guilt was the only reasonable inference to be drawn fromthe evidence. There is no support for the argument that the judge, when assessing the evidence, improperly rejected reasonable inferencesthat were inconsistent with Mr. Morin’s guilt. [28] Mr. Morin’s argument rests on the evidence that, when he was arrested and asked about the cash found on him, he told thepolice that he had been to a casino and had won it. The judge admitted that explanation into evidence through a police witness as a resgestae statement. In other respects, Mr.

Morin says the judge could have inferred that he was in the vehicle merely to consume drugs andnot to traffic in them. Mr. Morin argues that the two inferences are reasonable and that they should have given rise to a reasonable doubtas to his guilt. [29] As Mr. Morin points out, inferences consistent with innocence in cases built around circumstantial evidence do not have to arisefrom proven facts (see R v Villaroman at para 36; R v Khela, 2009 SCC 4, at para 58, [2009] 1 SCR 104); but they must nonetheless bereasonable inferences and not merely possible (R v Villaroman at para 42).

Moreover, in the assessment of whether a verdict isunreasonable, appellate courts must review the cumulative effect of all the evidence and not consider it in a piecemeal way (R v Lola atpara 23; R v Montague-Mitchell, 2018 SKCA 78 at para 60, 368 CCC (3d) 322).

In the context of appellate review, a failure to adduceevidence that supports an innocent explanation can undermine the reasonableness of the alternative inferences that were available to thetrier of fact (see R v Lola at para 37 and the cases cited thereat; see also R v Noble, (SCC), [1997] 1 SCR 874 atpara 104). [30] The evidence in this case included the testimony of a police expert witness who opined that the denominations and amount ofcash found on Mr. Morin was “consistent with street level drug trafficking”. He also said that the language used in the text messages onMr.

Morin’s cellphone “was evidence of drug transactions” although, when cross-examined about whether the evidence could support aninference that the vehicle occupants were simply drug users, he said that “anything was possible” and that some of the text language was“more consistent with trafficking than using”.

The expert expressed his opinion that, on the totality of the evidence, the vehicle occupantshad been trafficking in drugs, referring specifically to the cellphone messages and the quantity and packaging of the drugs. [31] The trial judge, however, assessed the reasonableness of the inferences to be drawn from the whole of the evidence on his own.In doing so, he placed considerable weight directly on his finding that the text messages on Mr. Morin’s cellphone were “conversationsnot only about the sale of [crystal meth and cocaine] but the sale by Mr. Morin to a purchaser, not the other way around”.

As I read hisoral reasons, this finding of fact completely dispelled the reasonableness of the alternative explanations that had been proffered by Mr.Morin for his possession of the cash and drugs. I do not, however, interpret the trial judge’s reasons as requiring Mr. Morin to provehimself innocent by providing evidence to support the explanations he had proffered in argument.

Rather, on the totality of the evidence,the trial judge simply did not find that those explanations were reasonable or plausible and he, therefore, rejected them. [32] As noted, the Supreme Court described the basic question for the trier of fact in terms of “whether the circumstantial evidence,viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”(R v Villaroman at para 38). Also as noted, the question for this Court is not whether there were other possible explanations.

It is whetherthe trier of fact unreasonably concluded that the totality of the evidence, when applying common sense, human experience, and logic todetermine the probability of outcomes, leads to only one reasonable conclusion, namely, that the accused committed the crime (see R vWolff at paras 108–109 and R v Learning at paras 24–26). Given the evidence in this case, I am unable to conclude that the trial judgeunreasonably found Mr.

Morin guilty of two counts of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. [33] In short, I am not persuaded that the trial judge acted unreasonably by concluding that the only reasonable inference to bedrawn from the evidence was that Mr. Morin had been trafficking in methamphetamine and cocaine. D. Are the verdicts unreasonable because the trial judge made inconsistentfindings of fact? [34] Mr. Morin alleges that his two verdicts of guilty to possession for the purposes of trafficking are unreasonable (or inconsistenton the facts).

He says this because the trial judge found that he had had no control over the vehicle but that he had had knowledge of andcontrol over the drugs that were in it. [35] As noted, in the voir dire the judge found that Mr. Morin was merely a passenger in the vehicle and stated that “there’s noevidence that he owned the car, had any control over the car, or that kind of thing”. When considering whether Mr. Morin had been inpossession of the drugs that were found in the vehicle, the trial judge said that “control in the context of constructive possession meansconsent with the power to affect the location of the item.

Well, it was right beside his left arm, in the centre console. I believe he had thatcontrol”. The judge also said, “Occupancy [of a vehicle] can be evidence of possession”. [36] However, there is no inconsistency to this and the verdicts are not unreasonable because of these findings. A person can be apassenger in a vehicle with no control over it for the purposes of assessing their privacy expectations, but still have knowledge and controlover some or all its contents. There is nothing inconsistent about that proposition.

It is also consistent with s. 4(3) of the Criminal Code: Possession 4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and

(

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 37 ] In short, the error alleged by Mr. Morin is not made out on the law or in the circumstances of this case. [ 38 ] Lastly, Mr. Morin also argues under this ground that the verdicts are inconsistent with his co-accused’s convictions for simple possession. He says there was no evidence that he was the “ringleader of the operation and as such deserved a higher sentence”.

There is no foundation in law or on the record for this argument. Mr. Morin’s co-accused pled guilty to the lesser offence of simple possession. Mr. Morin was convicted after a trial of possession for the purposes of trafficking. Their guilty pleas and his convictions are not comparable. Moreover, Mr. Morin did not appeal against his sentence. IV. DISPOSITION [ 39 ] I would dismiss the appeal on all grounds. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A.