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EVIDENCE - Methods of proof - Circumstantial evidence - Inferences

Thursday, July 15, 2021 @ 11:54 AM  

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Appeal by Boyer from conviction for trafficking in marijuana, laundering proceeds of crime and possession of proceeds of crime, and conspiracy. The charges resulted from a lengthy police investigation into a drug trafficking operation, whereby individuals would travel from Vancouver to Halifax with large quantities of marijuana in suitcases. The investigators amassed evidence identifying certain individuals as couriers, and illustrating the arrangements for and movement of marijuana, secreted in the couriers’ suitcases, on flights from Vancouver to Halifax. The Crown’s theory was that Boyer was a director involved in the management of, but removed from the day-to-day activities of the trafficking operation. A July 2015 daytime undercover surveillance of Boyer’s residence and a series of September 2015 phone conversations between Boyer and alleged co-conspirator Lockett, and between Lockett and courier Germaine were central to the Crown’s cased against Boyer. Boyer did not dispute the existence of the operation but challenged the circumstantial nature of the case and the Crown’s theory he was higher up the conspiracy ladder, with a more senior role as a director of the operation. Boyer argued the verdict was unreasonable.

HELD: Appeal allowed. The appellant was acquitted. The verdict was unreasonable. The surveillance evidence and the evidence of the telephone conversations did not directly connect Boyer to the conspiracy. Boyer’s guilt was not the only reasonable explanation for the observations made during the surveillance. The record, however, did not reveal any other evidence that could connect Boyer to the receipt of sums of money. It was also not clear how the judge found Boyer to be a probable member of the conspiracy. The judge did not explain how the evidence he was prepared to accept connected to and informed his conclusion that Boyer was probably part of the conspiracy. There was nothing in the phone conversation with Boyer which tied Boyer to Halifax, and no mention of Halifax during that conversation. The call represented evidence capable of bearing other reasonable inferences that were inconsistent with Boyer’s guilt. The record indicated numerous possibilities for “H” were suggested to the judge in closing submissions other than Halifax, but his reasons did not make clear they were considered, much less rejected. This was significant, as the finding “H” meant Halifax was the single fact that established Boyer’s involvement in a conspiracy taking place in Halifax. There was no meaningful link between what the judge articulated as facts and how they then informed his conclusions. The judge did not appear to have made room for, considered or rejected other reasonable inferences. Considered objectively, the evidence was equally consistent with Boyer having had some other type of connection to or relationship with the people the Crown claimed were his co-conspirators.

R. v. Boyer, [2021] N.S.J. No. 254, Nova Scotia Court of Appeal, C.A. Beaton, D.P.S. Farrar and A.S. Derrick JJ.A., June 15, 2021. Digest No. TLD-July122021007