Supreme Court Judgments

Supreme Court of Canada

R. v. Kundeus, [1976] 2 S.C.R. 272

Date: 1975-06-26

Her Majesty The Queen Appellant;

and

Richard Kundeus Respondent.

1974: November 22, 25; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Charge of trafficking in LSD—Court of Appeal adopting view that although accused in fact sold LSD he intended to sell and thought he was selling mescaline—Whether Court of Appeal right in holding mens rea not proved—Food and Drugs Act, R.S.C. 1970, c. F-27.

While at a table in a beer parlour, the accused was calling out “speed, acid, MDA or hash” to passers-by. An undercover policeman asked for hash or acid, to which the accused replied that he was all sold out. He then offered to sell mescaline at two dollars. The policeman accepted the offer and paid the accused four dollars for two “hits”. The accused left, returned in five minutes, and handed the policeman two capsules. In fact, these capsules contained LSD. The accused was convicted on a charge of trafficking in a restricted drug, namely lysergic acid dythalamide (LSD), contrary to the Food and Drugs Act, R.S.C. 1970, c. F-27. On appeal, the Court of Appeal set aside the conviction on the ground that the prosecution had failed to establish the necessary mens rea for the offence charged. The Court of Appeal took the reasons of the trial judge as involving a finding that although the accused in fact sold LSD he intended to sell and thought he was selling mescaline and the policeman thought he was buying mescaline. With leave of this Court, the Crown appealed from the unanimous judgment of the Court of Appeal.

Held (Laskin C.J. and Spence J. dissenting): The appeal should be allowed and the conviction restored.

Per Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.: On the facts of the case, a rebuttable presumption arose that the accused intended to traffic in LSD and that he was guilty of the offence charged. No evidence having been tendered by the accused, it was not possible to find that he had an honest

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belief amounting to a non-existence of mens rea. The Court of Appeal was in error in its conclusion that the necessary mens rea had not been proved.

Per Laskin C.J. and Spence J., dissenting: Even if it be proper to describe trafficking in controlled drugs, whatever be the drug, or trafficking in restricted drugs, whatever be the drug, as being, in each case, a description of the same crime, it is impossible to bring mescaline within either category when it stands entirely outside the group of controlled or restricted drugs and is governed by other statutory provisions than those governing controlled or restricted drugs. It could not be accepted that where mens rea is an element of an offence, as it is here, it can be satisfied by proof of its existence in relation to another offence unless, of course, the situation involves an included offence of which the accused may be found guilty on his trial of the offence charged. The actus reus and the mens rea must relate to the same crime.

[R. v. Custeau, [1972] 2 O.R. 250, approved; Beaver v. The Queen, [1957] S.C.R. 531; R. v. King, [1962] S.C.R. 746, applied; R. v. Blondin, [1971] 2 W.W.R. 1, aff’d. [1971] S.C.R. v; Poitras v. The Queen, [1974] S.C.R. 649; R. v. Burgess, [1970] 2 O.R. 216; Proud-man v. Dayman (1941), 67 C.L.R. 536; R. v. Prince (1875), L.R. 2 C.C.R. 154; R. v. McLeod (1954), 111 C.C.C. 106; R v. Reynhoudt (1962), 107 C.L.R. 381; R. v. Wallendorf, [1920] S.A.L.R. 383; R. v. Ladue, [1965] 4 C.C.C. 265; R. v. Scott, [1964] 2 C.C.C. 257, referred to.]

APPEAL by the Crown from a judgment of the Court of Appeal for British Columbia[1] setting aside the conviction of the respondent by Schultz Co. Ct. J. on a charge of trafficking in LSD contrary to the Food and Drugs Act. Appeal allowed and conviction restored, Laskin C.J. and Spence J. dissenting.

A.A. Sarchuk, Q.C., and G. Pinos, for the appellant.

P.C. Ritchie, for the respondent.

The judgment of Laskin C.J. and Spence J. was delivered by

THE CHIEF JUSTICE (dissenting)—The issue in this appeal, brought by the Crown with leave of

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this Court, is whether the British Columbia Court of Appeal was right in concluding that the prosecution had failed to establish the necessary mens rea on a charge of trafficking in a restricted drug, namely lysergic acid dythalamide (LSD), contrary to the Food and Drugs Act, R.S.C. 1970, c. F-27.I take the factual considerations to be those narrated and found by the trial judge (who had convicted the accused) and which were accepted by the British Columbia Court of Appeal.

Briefly, they are as follows, based on the evidence of the undercover policeman who was involved in the transaction with the accused. The latter was at a table in a beer parlour calling out “speed, acid, MDA or hash” to passers-by. The policeman asked for hash or acid, to which the accused replied that he was all sold out. He then offered to sell mescaline at two dollars. The policeman accepted the offer and paid the accused four dollars for two “hits”. The accused left, returned in five minutes, and handed the policeman two capsules. In fact, these capsules contained LSD. The British Columbia Court of Appeal took the reasons of the trial judge as involving a finding that although the accused in fact sold LSD he intended to sell and thought he was selling mescaline and the policeman thought that he was buying mescaline. The record in this Court does not admit of any other view.

It was not contended by the Crown, and, indeed, could not be under the applicable legislation, that proof of the actus reus involved in the charge was alone enough to support the conviction; proof of mens rea also rested upon the Crown: see Beaver v. The Queen[2]. The conviction can, of course, be easily supported if it be enough to establish that the accused intended to traffic in drugs and that it is immaterial, save as a matter of description in the charge, what particular drug or class of drug was the subject of the trafficking. Such a view overlooks the legislative scheme governing various drugs and the applicable penal provisions. On that view, the accused would have to risk the range of penalties applicable to the trafficking in the drug which was in fact sold, albeit he thought that he

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was selling one with respect to which a much lighter scale of penalties was prescribed.

The scheme of the Food and Drugs Act is of considerable relevance in this case. Sections 40 and 42, on which the prosecution was based, are in Part IV of the Act dealing with “restricted drugs”, which are those included in Schedule H, and LSD is one of those mentioned. Part III of the Act deals with “controlled drugs” which are those included in Schedule G, and among them are amphetamine and methamphetamine. Sections 33 and 34 are provisions in Part III (relating to controlled drugs) which are to the same effect as ss. 40 and 42 relating to restricted drugs under Part IV. Sections 40 and 42 read as follows:

40. In this Part,

“possession” means possession as defined in the Criminal Code;

“regulations” means regulations made as provided for by or under section 45;

“restricted drug” means any drug or other substance included in Schedule H;

“traffic” means to manufacture, sell, export from or import into Canada, transport or deliver, otherwise than under the authority of this Part or the regulations.

42. (1) No person shall traffic in a restricted drug or any substance represented or held out by him to be a restricted drug.

(2) No person shall have in his possession any restricted drug for the purpose of trafficking.

(3) Every person who violates subsection (1) or (2) is guilty of an offence and is liable

(a) upon summary conviction, to imprisonment for eighteen months; or

(b) upon conviction on indictment, to imprisonment for ten years.

Mescaline is neither a controlled drug nor a restricted drug, but is a drug within Schedule F, included thereunder by virtue of s. 15 of the Act (“no person shall sell any drug described in Schedule F”) and governed by regulations made pursuant to s. 25 of the Act. Section 15 of the Act is in Part I which deals with adulterated food, drugs and cosmetics, with deceptive advertising

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and labelling, with control of standards of manufacturing and with the sanitary condition of premises. Part II of the Act deals with administration and enforcement of the Act by inspectors and includes very wide regulation-making powers set out in s. 25. Penalties for violation of the Act or of the regulations are prescribed by s. 26 which reads as follows:

26. Every person who violates any of the provisions of this Act or the regulations is guilty of an offence and is liable

(a) on summary conviction for a first offence to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months, or to both, and for a subsequent offence to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both; and

(b) on conviction upon indictment to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years, or to both.

It is common ground that any offence under the Act or regulations relating to the sale of mescaline would be punishable under s. 26. On the other hand, this provision would have no application to controlled or restricted drugs in the face of the penalty provisions of ss. 34 and 42 which alone govern illegal dealing in them. A comparison of the respective penalty provisions governing mescaline and LSD shows how much heavier the penalty is in respect of illegal dealing in the latter than in the former, both where the prosecution is on summary conviction and on indictment.

The regulation respecting mescaline is Regulation C.01.041 which prohibits the sale of any substance containing a drug listed or described in Schedule F unless on written or verbal prescription, and the regulation goes on to elaborate on these types of prescriptions. I may observe here that it is not an offence to possess mescaline but it is an offence to possess a controlled or a restricted drug for the purpose of “trafficking”, defined (as

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already noted) to include, inter alia, selling, transporting and delivering.

Mescaline has been a Schedule F drug since 1958 (see SOR/58-115 (P.C. 1958-450); SOR/ 59-274 (P.C. 1959-956)). The statutory history of its position in Schedule F is somewhat involved, as witness the fact that by SOR/63-269 (P.C. 1963-1119) mescaline was included in a Schedule F which was added to the Regulations under the Food and Drugs Act, operating apparently as supplementary to Schedule F to the Act proper. (SOR/63-269 was replaced by SOR/65-548). In view of this history, I may note that there was error in the judgment of the Ontario Court of Appeal in R. v. Custeau[3] in the statement therein that mescaline was a controlled drug. In that case, the accused was charged and convicted on appeal of trafficking in LSD although he thought he was selling mescaline. The Court of Appeal in entering the conviction gave as one of its reasons that it is an offence to traffic in either a controlled drug or a restricted drug and, although there were separate penalties prescribed, the maximum penalty was the same in either case. In fact, however, mescaline was not then nor ever was a controlled drug or a restricted drug.

It was the contention of the appellant Crown that the required proof of mens rea was furnished by evidence showing what Crown counsel called a general intention to traffic in drugs; and, this being shown, it was immaterial that the accused did not intend to traffic in the specific drug which was named in the charge but thought (as did his purchaser) that he was trafficking in another drug. Crown counsel thus takes the position to which I referred earlier in these reasons, and he stated in this connection that the accused could meet the case against him only by relying on mistake of fact which must be an honest mistake on reasonable grounds that the facts believed by him to be true would not attract culpability of any drug offence. That, according to Crown counsel, was not this case.

There are, in my opinion, three issues that stem from this submission. The first is whether mistake

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of fact arises at all as a separate defence for the accused in the face of the burden on the Crown to prove mens rea as an element of the offence charged. The offence charged was trafficking in a restricted drug, namely LSD; and although I would agree that proof of knowledge by the accused that he was trafficking in a drug of that class might be enough, even if it be not LSD, the question that must be faced is whether it is enough for the Crown to offer proof of trafficking in any drug or, as here, in a drug that is in a lower scale of prohibition and regulation.

Having regard to the evidence adduced at the trial, and to the findings of fact on that evidence, I do not think it necessary in the present case to consider the relationship between the Crown’s burden of proof, where mens rea is an element of the offence charged, and mistake of fact as an affirmative defence. Clearly enough, mistake of fact in that sense does not arise where proof of mens rea is an element of proof of the offence charged and the evidence adduced by the Crown does not establish it. If mistake is put forward in this context by evidence offered by or on behalf of the accused, it is only by way of meeting an evidentiary burden and raising a reasonable doubt that the Crown has met the persuasive burden of proof resting upon it. What we are concerned with here, on the record, is whether evidence by the Crown going to show that the accused intended to commit a lesser offence than that charged is enough to support the conviction entered after trial.

The second issue which arises on the Crown’s submissions is whether the mistake of fact must be objectively reasonable or whether it is enough that it be based upon an honest belief. Leaving to one side cases of strict criminal liability (on which the judgment of Dixon J. in Proudman v. Dayman[4], at pp. 539-41, is specially instructive), where serious criminal charges are involved this Court put the matter as follows in Beaver v. The Queen, supra, where Cartwright J. said this (at p. 538):

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… the essential question is whether the belief entertained by the accused is an honest one and … the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining that essential question.

See also Director of Public Prosecutions v. Morgan, Law Report in The London Times, May 1, 1975.

The third issue, which is tied in with the first, is whether mistake of fact is shown on proof that, on the facts as the accused honestly believed them to be, he was innocent of the offence charged, albeit guilty of another offence, or whether he must show that he was innocent of any offence. This last matter invites consideration of a proposition advanced in R. v. Prince[5] by the one dissenting judge of the sixteen who heard the case in the Court of Crown Cases Reserved. The majority of that Court held that mens rea was not an essential ingredient of the offence charged, which was unlawfully taking any unmarried girl under age sixteen out of the possession and against the will of her father or mother. (The word “knowingly” was not in the charge). The accused reasonably believed that the girl he had abducted was over age sixteen. One of the points made by Brett J., who dissented on the ground that mens rea was an ingredient of the offence as it related to age, was that where mens rea must be proved it would suffice to show, if the facts were as the accused believed them to be, that he would still be guilty of a crime albeit one of a lesser degree than that charged as a result of the actus reus.

I do not think that this view is any longer sustainable. The requirement that where the actus reus of an offence is proved there must also be proof of the mens rea of the same crime is now basic in our criminal law. Williams, Criminal Law, 2nd ed. (1961), p. 129, makes the point when dealing with the question of “transferred malice” as follows:

The accused can be convicted where he both has the mens rea and commits the actus reus specified in the rule of law creating the crime, though they exist in

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respect of different objects. He cannot be convicted if his mens rea relates to one crime and his actus reus to a different crime, because that would be to disregard the requirement of an appropriate mens rea.

And again, at p. 131:

What are different crimes for the purpose of the rule depends primarily upon the arrangement of the statute; each section presumptively creates a different crime or group of crimes. It is possible for a single sentence of a section to create a number of different crimes, as is shown by the decisions on duplicity in pleading. If a section is thus held to create different crimes, it would not be possible to transfer the malice from one crime to another even-within the same section.

See also, Smith and Hogan, Criminal Law, 3rd ed. (1973), pp. 49-51.

This is apt for the statutory situation which exists here and to which I have referred earlier in these reasons. Even if it be proper to describe trafficking in controlled drugs, whatever be the drug, or trafficking in restricted drugs, whatever be the drug, as being, in each case, a description of the same crime, I think it is impossible to bring mescaline within either category when it stands entirely outside the group of controlled or restricted drugs and is governed by other statutory provisions than those governing controlled or restricted drugs. I am unable to agree that where mens rea is an element of an offence, as it is here, it can be satisfied by proof of its existence in relation to another offence unless, of course, the situation involves an included offence of which the accused may be found guilty on his trial of the offence charged. A number of authors who have examined this problem in depth and, particularly in relation to the “lesser crime” doctrine, have come to this very conclusion: see Williams, op. cit., at pp. 185 ff., Howard, Australian Criminal Law, 2nd ed. (1970), at pp. 375 ff., and Smith, “The Guilty Mind in the Criminal Law”, (1960), 76 Law Q. Rev. 78, at pp. 91 ff. If judges are to be faced with a choice of policy in this area, it should be one consonant with fundamental principle, namely, that the actus reus and the mens rea must relate to

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the same crime: see Smith, “The Guilty Mind in the Criminal Law”, (1960), 76 Law Q. Rev. 78.

This view has been the subject of consideration and some application in a number of decisions of appellate courts in Canada, some of which were considered and distinguished by the British Columbia Court of Appeal in the present case. I begin my reference to them by taking up first those cases that dealt with drug offences. The Custeau case, already mentioned, and R. v. Burgess[6], may be considered together as being cases where (on the assumption in Custeau that mescaline was a controlled drug) offences of the same quality were involved if the facts had been as the accused believed them to be. In Custeau, the offence charged was trafficking in a restricted drug; the accused would have it that there was trafficking in a controlled drug. Although it may well be proper to treat trafficking in a restricted drug as being essentially the same offence as trafficking in a controlled drug, the conviction is not sustainable on a wider principle of liability that the honest belief of the accused is of no avail unless it would result in his act being entirely innocent. In Burgess, the charge was unlawful possession of a narcotic, to wit opium and the defence was that the accused believed he had hashish which was a narcotic whose possession was similarly prohibited. This was simply a case of the actual and intended act constituting the same crime, both drugs being in the class of narcotics and caught by the same penal provision, namely s. 3 of the Narcotic Control Act.

R. v. Blondin[7], a judgment of the British Columbia Court of Appeal (of which McFarlane J.A., who delivered the reasons in the present case, was a member), also concerned an offence involving a narcotic which proved to be cannabis resin or hashish. The charge was unlawfully importing a narcotic, namely cannabis resin. The trial judge had charged the jury that the Crown was obliged to prove that the accused knew that the narcotic was that alleged in the indictment. This was held

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to be misdirection, the appellate Court being of the opinion, in the light of Burgess and other cases cited, that it was a proper direction to the jury that it was enough if the accused knew that some kind of narcotic was involved. This view of the matter was affirmed by this Court on appeal: see Blondin v. The Queen[8]. I may note here that under the Narcotic Control Act the importation of all narcotics is caught by a single proscription, namely s. 4 of the Act, so that the same offence is involved regardless of the narcotic. The British Columbia Court of Appeal also held that it was not a proper instruction that the accused might be found guilty of unlawfully importing a narcotic if he knew that it was illegal to import the substance that was found although he did not know it was a narcotic. In short, there was a marked difference between the offence of importing a narcotic and that of smuggling goods in breach of the Customs Act; mens rea in the latter respect was not enough to support a conviction of the former. This point was not passed upon by this Court, but it was referred to by McFarlane J.A., in delivering the judgment of the British Columbia Court of Appeal in the present case, to distinguish Blondin.

A second group of cases which considered “the lesser crime” doctrine is illustrated by R. v. McLeod[9], which involved a charge of assaulting a peace officer in the execution of his duty, contrary to what is now s. 246(2)(a) of the Criminal Code. The question at issue was whether proof must be made that the accused knew that the victim was a peace officer. The British Columbia Court of Appeal held that this was an esential element of the offence charged and, notwithstanding that there was an assault, the requirement of mens rea was not satisfied by proof of a lesser crime, that is, common assault. A different view in the same situation was taken by the High Court of Australia in a majority judgment in R. v. Reynhoudt[10], which held that it was enough for the Crown to establish the intentional assault, without being

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required to prove that the accused knew that the person assaulted was a peace officer acting in the execution of his duty. The dissenting judgment of Dixon C.J. was to the effect that intent must go to all the elements of the whole offence, an opinion shared by Kitto J. The South African Supreme Court, Appellate Division in R. v. Wallendorf[11], took a similar majority view to that in the Reynhoudt case in holding that it was not essential to prove that the accused knew that the victim of the assault was a constable.

A different class of case, raising the question of mens rea referable to a more serious crime than that charged, is R. v. Ladue[12], a judgment of the Yukon Territory Court of Appeal which is staffed by members of the British Columbia Court of Appeal. The charge was indecently interfering with a dead human body, and the evidence showed copulation or attempted copulation with a woman who was then dead, albeit the accused testified that by reason of his intoxication he did not know that she was dead. The Court held that knowledge that the woman was dead was not an ingredient of the offence, and hence, I take it, not an element requiring proof by the Crown. The Court also appears to have held, somewhat inconsistently, that proof that he did not know the woman was dead could be offered in defence by the accused, but it added that here he would be in the dilemma of admitting to rape (there being no question of consent), a more serious offence than that charged. It does occur to me, however, that the facts being what they were, the proper charge ought to have been attempted rape.

Is any general principle deductible from the foregoing catalogue of instances? Certainly, it cannot be said that, in general, where mens rea is an ingredient of an offence and the actus reus is proved it is enough if an intent is shown that would support a conviction of another crime, whether more or less serious than the offence actually committed. Coming to the particular, to the case before this Court, where proof is made of an actus reus that, in a general sense, is common to a range or variety of offences which require mens rea but

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those offences differ as to gravity by reason of different classifications and different penalties, is a charge of a more serious offence established by proof only that the accused intended to commit and could have been found guilty of a less serious, a lesser offence? The matter, in terms of principle, depends on how strict an observance there should be of the requirement of mens rea. If there is to be a relaxation of the requirement, should it not come from Parliament, which could provide for the substitution of a conviction of the lesser offence, in the same way as provision now exists in our criminal law for entering a conviction on an included offence?

This position is the one taken by the Model Penal Code of the American Law Institute (1962) which provides as follows in s. 2.04(2):

Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

In the present case, and under present Canadian law, this sensible solution to a difficult problem is not open to this Court.

There may be some regret on the part of a court to free a person who appears to be guilty of an offence with which he has not been charged. That regret, if any there be, cannot be a vehicle for making a particular charge which cannot be proved serve as a foundation for imposing culpability of another, which is not an included offence. If there is to be a modification of principle in a situation like the present one, it must come from Parliament.

I return in this connection to the judgment of this Court in Beaver v. The Queen, which also involved a conviction of selling a narcotic drug as well as a conviction of possession. In respect of both charges the appellant’s position was that he believed that a harmless substance, sugar of milk, was contained in the package sold to an undercover policeman and did not know that the package

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contained a narcotic. There was this difference in the formulation of the two offences: the possession offence was one simply of forbidden possession of a narcotic without lawful authority, while the selling offence related to sale of any substance represented or held out to be a drug. Because there was evidence of such a representation or holding out, the conviction of selling was affirmed. Parliament, in short, had made a distinction in the applicability of mens rea to each of the two offences.

There is another consideration which should be brought into account in this case. The Crown’s case was built on evidence of an undercover policeman which must have been as well known to the prosecuting authorities before the trial as it was as a result of the trial. I can appreciate that there could have been some difficulty in determining what charge should be laid on the facts disclosed by the chief Crown witness. Although the Crown may have felt that it could support the charge actually laid, it could also, as a matter of precaution, have laid a charge of attempting to traffic in mescaline. Such a charge is supportable under s. 24 of the Criminal Code which makes it immaterial whether it was possible or not to commit the intended offence: see 10 Halsbury, 3rd ed., p. 306; R. v. Scott[13]. I have already indicated the view of the facts that the record compels. If there should be any doubt on the evidence whether the accused offered and intended to sell mescaline, that doubt cannot be translated into an affirmative finding, certainly not in this Court, that he offered and intended to sell LSD. At the worst, it would require a new trial.

I see no such doubt and, on the considerations I have canvassed, I would dismiss the appeal.

The judgment of Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—With leave of this Court, the Crown appeals the unanimous judgment of the British Columbia Court of Appeal[14] setting aside the conviction of respondent. In the words of the

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indictment, Kundeus was charged that he did

on the 24th day of August A.D. 1972, unlawfully traffic in a restricted drug, to wit: Lysergic Acid Diethylamide (LSD), contrary to the provisions of the Food and Drugs Act.

The facts are stated in the reasons for judgment of the trial judge:

Police Constable MacKay-Dunn testified that, on August 24, 1972, at about 10:15 P.M., the Constable, acting undercover in the Gas Town area, and the Accused were at a table in the Travellers Hotel, 57 West Cordova in the City of Vancouver. The police Constable testified the Accused was calling out, “Speed, acid, MDA or hash”, to passers by in the beer parlor. The police constable asked for hash or acid. The Accused said they were all sold out. The Accused offered mescaline at two dollars. The police constable accepted the offer, requested two “hits” and paid four dollars, to the Accused for same. The Accused left, returned in about five minutes, and handed two capsules, Exhibit 1, to the police constable. Exhibit 1 was, in fact, two capsules of LSD (See exhibit 2).

The trial judge adds that

the accused elected not to adduce any evidence in defence.

After having stated that the sole issue was mens rea, the trial judge examined the relevant parts of the Food and Drugs Act, R.S.C. 1970, c. F-27, and of the regulations thereunder, as well as the cases of R. v. Blondin[15] (confirmed by this Court[16]); R. v. Burgess[17], and R. v. Custeau[18] and concluded:

The Court has considered the evidence in this trial and the able submissions of respective Counsel.

The Court concludes that the prosecution has proved, beyond a reasonable doubt, the guilt of the Accused…

Respondent inscribed an appeal alleging an error involving a question of law upon the following ground:

The learned trial judge misdirected himself in law in holding that if he was satisfied beyond a reasonable

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doubt that the accused knew it was illegal to sell the drug mescaline, although said drug is not a restricted drug as defined in the Food and Drugs Act, and in fact intended to sell the drug mescaline, he should convict the accused of trafficking in L.S.D., a restricted drug under the Food and Drugs Act, when the substance sold as mescaline analyzed to be L.S.D., even if the accused did not know that the substance was in fact the restricted drug L.S.D.

The Court of Appeal disagreed with the conclusion reached by the trial judge and specifically refused to follow R. v. Custeau. The conviction was consequently set aside.

Mens rea cannot, of course, be examined without reference to Beaver v. The Queen[19]. In that case, there was evidence on which the jury might have found that Beaver had no knowledge that the substance was a drug but believed it to be sugar of milk. It is in that context that the following excerpt from the reasons of Cartwright J., as he then was, must be read (p. 538):

…the essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining that essential question.

The question to which Cartwright J. was directing his attention is made very clear in the illustration he uses at p. 536:

It may be of assistance in examining the problem to use a simple illustration. Suppose X goes to the shop of Y, a druggist, and asks Y to sell him some baking-soda. Y hands him a sealed packet which he tells him contains baking-soda and charges him a few cents. X honestly believes that the packet contains baking-soda but in fact it contains heroin. X puts the package in his pocket, takes it home and later puts it in a cupboard in his bathroom. There would seem to be no doubt that X has had actual manual and physical possession of the package and that he continues to have possession of the package while it is in his cupboard. The main question raised on this appeal is whether, in the supposed circumstances, X would be guilty of the crime of having heroin in his possession?

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It will be observed at once that we are not concerned with the incidence of the burden of proof or of the obligation of adducing evidence. The judgment of the Court of Appeal states the law to be that X must be convicted although he proves to the point of demonstration that he honestly believed the package to contain baking-soda.

Our facts are different. They are very simple and not contradicted. One reading of them is that Kundeus was offering LSD for sale, actually sold LSD and received payment therefor. On that reading, it is obvious that the conviction should have been affirmed.

Another reading is that adopted by the Court of Appeal and expressed by McFarlane J.A., speaking for the Court (p. 345):

The evidence disclosed, and the trial Judge found, that the appellant offered to sell mescaline at two dollars to a police constable acting undercover. The constable accepted the offer and paid the appellant four dollars for two “hits”. The appellant left, returned in about five minutes and handed the constable two capsules which were found, on analysis, to contain LSD.

I think I must interpret the reasons for judgment of the trial Judge as a finding that although the appellant did in fact sell LSD he thought he was selling, and intended to sell, mescaline and that the constable also thought he was purchasing Mescaline.

Assuming that this reading of the trial judgment is the proper one, was the Court of Appeal right in holding that the necessary mens rea had not been proved? I do not believe so.

In R. v. Blondin, supra, a case dealing with the importation of narcotics, the Crown succeeded on the following ground of its appeal:

“(e) That the learned trial judge misdirected the jury in instructing it that the Crown was obliged to prove beyond a reasonable doubt that the accused knew that the contents of the scuba diving tank (Exhibit 1) was a narcotic drug as alleged in the Indictment herein, namely, Cannabis Resin.”

After a full review of the authorities, Robertson J.A. concluded (p. 13):

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Basing my opinion upon what I understand to be the principle enunciated in the several passages I have quoted, I am of the respectful opinion that the learned trial Judge erred when he instructed the jury that, in order to find Blondin guilty, they must find that he knew that the substance in the tank was cannabis resin. It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense.

An appeal to this Court by the accused was dismissed by the full bench in the following terms:

We agree that the Court of Appeal rightly allowed the appeal and directed a new trial on ground (e) of the Notice of Appeal to that Court.

That judgment must be read with another decision of this Court, namely The Queen v. King[20], where the facts, the question submitted to this Court and the holding are expressed in the headnote:

The accused went to his dentist by appointment to have two teeth extracted. He was injected with a drug known as sodium pentothal, a quick-acting anaesthetic. Earlier, he had been required to sign a printed form containing a warning not to drive after the anaesthetic until his head had cleared. After he regained consciousness, the nurse in attendance, to whom he appeared to be normal, warned him not to drive until his head was “perfectly clear”. He replied that he intended to walk. The accused said that he heard no such warning and did not remember signing any form containing a warning. He remembered getting into his car and that while driving he became unconscious. His car ran into the rear of a parked vehicle. Medical evidence was given that his mental and physical condition (he was staggering and his co-ordination was poor) was consistent with the after-effects of the drug in question which may induce a state of amnesia accompanied by a period during which the subject may feel competent to drive a car and in the next second be in a condition in which he would not know what was happening. The accused stated that he did not know anything about this drug.

He was charged and convicted of the offence of driving a motor vehicle while his ability to do so was impaired by a drug, contrary to s. 223 of the Criminal Code. After a trial de novo before a County Court judge under s. 720 of the Code, his conviction was affirmed. The Court of Appeal granted him leave to appeal and

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quashed the conviction. The Crown was granted leave to appeal to this Court on the question as to whether mens rea relating to both the act of driving and to the state of being impaired was an essential element of the offence.

I refer particularly to a paragraph of the reasons of Ritchie J., speaking also for the Chief Justice and for Martland J., at p. 763:

The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of the opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.

In the case at bar, such a rebuttable presumption has arisen. No evidence having been tendered by the accused, it is not possible to find that he had an honest belief amounting to a non-existence of mens rea and the Court of Appeal was in error in its conclusion.

The quality of respondent’s conduct is not to be determined by the existence or non-existence of a binding civil agreement as to the purchase of LSD between him and the constable. That is not the test. In Poitras v. The Queen[21], where the question was to determine the exact meaning of “trafficking” under the Narcotic Control Act, Dickson J., speaking for the majority, wrote at p. 653:

It was argued on behalf of the appellant that the words “to buy” do not appear in the definition of “trafficking” under the Narcotic Control Act; therefore, a mere purchaser does not traffic and an agent for the purchaser comes under the same protective umbrella. I do not agree. One cannot apply the civil law of “agency” in this context. “Agency” does not serve to make non-criminal an act which would otherwise be attended by criminal consequences. Even if the appellant could be said to be the “agent” of Constable Arsenault for the purposes of civil responsibility, his acts may, none the less, amount to trafficking in narcotics or aiding in such trafficking.

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If, as the trial judge would seem to have found, the evidence was consistent with the accused delivering or selling or trading in drugs or offering to do so, the fact that he may have been acting as an agent for Arsenault would not exculpate him.

In my view, the result in R. v. Custeau was the proper one and this notwithstanding the error committed by the Court of Appeal of Ontario and underlined by the Court of Appeal of British Columbia in the case at bar, mescaline having been described as a controlled drug when it is a drug mentioned in the Regulations under the Act which cannot be sold without a prescription.

I would allow the appeal, set aside the Order of the Court of Appeal of British Columbia and restore the judgment at trial together with the sentence imposed thereat.

Appeal allowed, LASKIN C.J. and SPENCE J. dissenting.

Solicitor for the appellant: D.S. Thorson, Ottawa.

Solicitor for the respondant: K. Lowes, Vancouver.