Follow up from my post on cases coming to the SCC – Rochon c. R., 2011 QCCA 2012 (CanLII), an as of right appeal from the QCCA (no, Wagner was not on the bench) was heard today.
This is the case that reminded me of Regina Austin, 14 Yale J.L. & Feminism 273 (2002) Step on a Crack, Break Your Mother’s Back: Poor Moms, Myths of Authority, and Drug-Related Evictions from Public Housing – with clear contextual differences. But Austin’s discussion of “maternal authority” is interesting in this context. My colleague Professor Shelley Gavigan then pointed me to R. v. CHRISTIE  N.B.J. No. 68 New Brunswick Supreme Court Appeal Division – I can’t find it in open source so I will just paste the whole thing in at the end of this post. Suffice it to say that the mother in that one is let off the possession charge. Today the appeal in Rochon was dismissed (it was a Crown appeal) with reasons to follow and Cromwell J dissenting (so I hear).
The CAQ case linked above is in French, so here’s the summary available on the SCC website (“Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.”):
…. Whether complicity by omission under s. 21(1)(b) of Criminal Code requires existence of legal duty to act and whether failure to act by person who omits to exercise authority over another person or property can constitute actus reus of that offence.
Ms. Rochon entrusted her property to her son in her absence. When she returned to her property in the summer, she found that marijuana was being cultivated on her land. She asked her son twice to remove the crop, but she did not want to report him to the authorities. The trier of fact concluded from the evidence that Ms. Rochon had known of the situation and had therefore been obliged to call the police and report what her son was doing.
Beaver v. R.,  S.C.R. 531, appld. [para. 13].
R. v. Hess (No. 1), 94 C.C.C. 48, appld. [para. 13].
R. v. Ashwell (1885), 16 Q.B.D. 190, ref’d to. [para. 13].
R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.), ref’d to. [para. 13].
Criminal Code, R.S.C. 1970, c. C-34, s. 3(4).
Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(2) [para. 1].
BRIAN MALONE, for the Crown
WILLIAM CONNELL, for the accused
This case was heard at Fredericton, N.B., before HUGHES, C.J.N.B., LIMERICK and RYAN, JJ.A., of the New Brunswick Supreme Court, Appeal Division.
On February 17, 1978, HUGHES, C.J.N.B., delivered the following judgment for the Appeal Division:
1 HUGHES, C.J.N.B.:– This is an appeal by counsel acting on the instructions of the Attorney General of Canada against the judgment of His Honour Judge Abbis delivered September 15, 1977, acquitting the respondent on a charge that on or about [*page262] July 8, 1977, at the City of Fredericton she did unlawfully have in her possession a narcotic, to wit: Cannabis (marijuana) for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act.
in failing to convict the respondent of possession of the narcotic on all the evidence and
in not acting judicially in applying the test of proof “beyond a reasonable doubt”.
3 The facts as set out in the appellant’s factum were agreed to with certain minor exceptions and are substantially as follows. At trial counsel for the respondent made the following formal admissions:
“That six ounces of marijuana were found in the trunk, the closed trunk of a motor vehicle operated by the accused at the time and place alleged in the indictment. We are prepared to admit also service of notices of analysis, certificates of analysis, the service of the certificates of analysis, but we do not admit that there was possession in the terms of the Narcotic Control Act.”
4 The following exhibits were received in evidence: Exhibits C1 to C4 – photographs of motor vehicle driven by the accused; Exhibits C5 to C10 – samples of marijuana taken from bags found in the motor vehicle trunk with certificates of analysis attached; Exhibit C11 – money found in the trunk of the motor vehicle; Exhibit C12 – six bags of marijuana found in the trunk of the motor vehicle and Exhibit C13 – transcript of the preliminary inquiry.
“Corporal Donald Hanscom of the Fredericton City Police Department investigated an accident at the corner of Westmorland and Aberdeen Streets in the City of Fredericton at approximately 10:30 p.m. on July 8, 1977. The accused, Norma Jean Christie, was pinned in a small car behind the steering wheel and was the only occupant thereof. The trunk appeared to be down and closed and the rear of the car was undamaged. The front was badly [*page263] damaged from its collision with another car and with the verandah of a house against which it had come to rest. It took twenty minutes to release the accused and she was taken to the Dr. Everett Chalmers Hospital. This witness pushed the trunk button and it opened without a key as he was looking for a tire jack to change a tire on the car to allow it to be moved by a wrecker. When he examined the trunk’s contents he noticed money wrapped in brown paper lodged behind an electrical cable clipped onto the side of the trunk wall. The money was in two lots. One lot wrapped in brown paper contained $ 50.00 in cash and a cheque payable to the accused for $ 25.00, the other contained eleven 20 dollar bills and one 10 dollar bill for a total of $ 230.00. The witness found six bags of marijuana in a brown paper bag about four inches from the money. It was partially covered by one of the three tires in the trunk. The drugs and money were delivered by the witness to Constable Mark Fleming of the R.C.M.P. at approximately 11:20 p.m.
Constable Basil Hobbs, a law student and summer constable with the City Police Force testified he and Constable Vickers answered an accident call and arrived at 10:13 p.m. at the intersection of Westmorland and Aberdeen Streets. He accompanied the accused to the hospital and soon thereafter arrested her and warned her with the standard police precautionary warning.
Constable Mark Fleming, a member of the R.C.M.P. Drug Section, received the exhibits from Corporal Hanscom on the night of July 8 and later arranged for their analysis which proved to be Cannabis (marijuana).
The Crown closed its case against the accused to prove possession following the procedure of section 8 of the Act.”
6 The accused then gave evidence before the trial Judge. She stated she was 39 years of age and lived at the time of the alleged offence on Oak Avenue which is on the north side of the river within the City of Fredericton. She was employed by Central Mortgage and Housing Corporation and was living separate from her husband who lived in Bathurst. A 15 year old daughter was living with her and another daughter, 16, was living with her husband. The accused testified that on the weekend of July 2nd to 4th she had visited Bathurst with her younger daughter, that her car was used by her older daughter [*page264] that weekend in taking driving instructions. She said it was her practice to leave the keys in her car.
7 She said on July 8 she loaned the car to Allison Brewer, a daughter of her friend, Jacqueline Webster, who was hospitalized at the time. She had, in fact, visited Jacqueline Webster early that evening and Mrs. Webster had given her the $ 25.00 cheque which she had received from a friend of the accused from Bathurst. The accused stated that on the evening of July 8 she intended to join friends for a swim at the Diplomat Motel in Fredericton and that upon arriving at the motel she put her money and cheque in a brown paper bag containing a novel in the trunk of the car to ensure its safety. In the process of doing so she noticed another brown bag in the trunk. As soon as she realized it contained marijuana, she slammed the trunk closed and entered the motel and stated she desired to obtain counsel from her friends as she feared her children were involved with drugs. Her friends did not arrive at the motel as she had expected and she left and drove to her home on Oak Avenue for the purpose of contacting her children or other friends for counsel, but without success. She stated she then drove around the city looking for some of her friends – on Charlotte Street, at the Press Club on St. John Street and thence along Westmorland Street to where the accident occurred. In the process she had stopped for gas at the Waterloo Esso Service Station.
8 The accused estimated that from the time she discovered the drugs in the trunk of her car until the accident approximately one hour had elapsed. The owner of the drugs was never found. The accused alleged that she was in a state of panic and feared drug involvement by her children as an explanation for her conduct.
9 On cross-examination she admitted she was the registered owner and driver of a motor vehicle which was involved in the accident; that at the time of the accident she had no real reason to suspect her daughter’s involvement with drugs other than normal parental worries about teenagers; that she did not think about calling the police when she discovered the drugs in her car; that at one time she was a free lance writer in Bathurst and knew something about the court system; that the trunk of her car locked automatically when she slammed it closed following the finding of the drugs; that she had tried marijuana herself 5 years previously; that she gave no thought of consulting legal counsel for any help agency such as Chimo when she was at the Diplomat Motel; that she had never found narcotics in her car before; and that the [*page265] owner of the drugs is unknown.
11 No evidence was given by Sharon Rolfe, the alleged maker of the $ 25.00 cheque; Allison Brewer who borrowed the car on the day of the alleged offence; the accused’s daughter who used the car the previous weekend; or friends of the accused who were supposed to meet her at the Diplomat Motel.
12 Counsel for the Attorney General called Constable Fleming in rebuttal. He stated that on the early morning of July 9 he had occasion to visit the hospital where the accused was being treated for her injuries and when she was ready to leave he took her to the police car and with Constable Hobbs drove her to the Police Station where he gave her a warning. He said that while in the car the accused stated that she was going to a party on Westmorland Street at the time the accident occurred. This evidence was introduced presumably to rebut a statement made by the accused that she was unable to remember on her cross-examination any statement to Constable Fleming that she had been on her way to a party on Westmorland Street when the accident occurred and had hidden her money to avoid possible theft.
13 The learned trial Judge adjourned the hearing for 2 days when he delivered an oral judgment in which he reviewed certain parts of the evidence stating he found the accused knew the marijuana in her car was Cannabis, that she could have destroyed the substance but that she simply neglected to do anything noting she stated that she panicked and did not know what to do. He referred to Beaver v. R.,  S.C.R. 531, in which the judgment in R. v. Hess (No. 1), 94 C.C.C. 48, was approved, R. v. Ashwell (1885), 16 Q.B.D. 190, and R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.), where the Court held the accused should have been acquitted because of the lack of evidence of control which is an essential ingredient of possession. The learned trial Judge concluded:
“In sum, I do not think that the defendant consented to the possession of the drug, and that her lack of consent applies to “personal possession” in the Criminal Code, Section 3(4)(a), as well as to the other aspects of possessions.”
14 He then asked himself the question: Did the defendant [*page266] have a duty to report the presence of the drug to the police? And he answered that he could find no remaining trace of a duty of a general nature to report known crimes in the criminal law. In concluding his judgment he said:
“I, therefore, have come to the conclusion and I do so, gentlemen, reluctantly but I have to dismiss the case against Norma Jean Christie. My feeling what took place on that day, what happened, are my own but I have to go by the evidence and I have to give the reasonable doubt to the accused and as I said a few moments ago, I do so reluctantly. Therefore, the case against the accused is dismissed.”
15 On this appeal counsel for the Attorney General contended the learned trial Judge erred “by failing to convict the respondent of ‘possession'” as that term is defined by the Criminal Code. He also contended the learned trial Judge erred in failing to judicially apply the test of reasonable doubt.
16 In my opinion there was ample evidence upon which the learned trial Judge could have convicted the accused of possession of a narcotic, but he took a view of the facts which led him to the opposite conclusion holding there was reasonable doubt as to the guilt of the accused. To entitle this Court to reverse that finding we would have to conclude that the evidence which the accused gave at trial is conclusive as to her guilt of possession of a narcotic. In Rex v. Hess (No. 1) O’Halloran, J.A., said at p. 51:
“It is not easy to find in the decisions any clear cut statement of what constitutes possession under all circumstances without exception. It may be extremely difficult to formulate any such description or definition which is universally embracing. But in my view the elements of possession to which I have referred are implicit in the statute as well as in the leading decisions which have had occasion to examine any of the many aspects of the subject. I do not find that the precise point in the form presented by this case has arisen in a leading decision. If knowledge of what the thing is were not an essential element, then we would have the ridiculous result that the children who found the parcel in the first place and brought it home to the mother, would by that act alone be automatically guilty of possession under s. 4(1)(d), and be compulsorily subject to a minimum of 6 months’ imprisonment [*page267] with a substantial fine. Even with knowledge of what the thing is, if some act of control (outside public duty) is not essential, then we would have the equally ridiculous result that the little girl’s mother who received the parcel of drugs and telephoned the police, would be automatically guilty of possession under s. 4 (1)(d) and compulsorily subject to imprisonment and a substantial fine.
I cannot satisfy myself that Parliament intended “possession” in s. 4 to be interpreted in a way to produce the foregoing absurd results, by eliminating the elements of knowledge and some act of control (outside public duty), and thus making manual handling simpliciter a crime.”
“What Hess would have done with the drugs once he knew they were drugs was left in the future. The accused must commit the crime before he can be convicted of committing it.
For the foregoing reasons I must conclude no objective facts were presented in evidence from which it may be legitimately inferred that Hess had knowledge of what the parcel contained, or that after he had opened it and found what it was, he exercised any act of control over it. He was given no opportunity to do so. But even if it could be said that there is any foundation for such inferences, they are not strong enough in my opinion for reasons stated to point only to guilt as they must under the Hodge’s principle. The precipitate action of the police has left the evidence in a state where in my view a rational hypothesis of innocence cannot be excluded.”
18 This Court must ask itself whether on the whole of the evidence any rational hypothesis of innocence exists. Any such hypothesis must rest in the explanation given by the accused, and that amounted to this that she had no intent to exercise control over the marijuana which she had found in the trunk of her car, and that at the time of the accident she had been driving about the City for about an hour looking for friends from whom she might obtain advice as to what she should do with it. The learned trial Judge did not think the defendant had consented to possession of the drug, and I infer that [*page268] it was on this ground he acquitted her.
19 In my opinion there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he has not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession. In the instant case the accused contended, under oath, that she was panic stricken and did not know what she should do when she found the narcotic in the trunk of her car, and that she drove around the City for about an hour before the accident in an attempt to find some of her friends from whom she might obtain advice as to what she should do with it. While the evidence is extremely suspicious, I cannot say that the learned trial Judge erred in failing to convict the accused if he had a reasonable doubt as to whether she intended to exercise dominion or control over the narcotic.