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Monday, January 14, 2019 @ 10:33 AM  

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Appeal by the Crown from the respondent’s acquittal on charges of conspiracy to traffic in cocaine and marihuana. The trial evidence established that H and P were involved in the transport of illegal drugs from Quebec to Newfoundland. The respondent trafficked the drugs locally. He acquired his supplies of cocaine and marihuana from N, with whom he had a long-standing friendship. The appellant returned the proceeds from his trafficking to P which were then transported by H to Quebec. The uncontroverted evidence, agreed to by the respondent, established that he communicated with all three of the men on matters related to acquiring the drugs from N and remitting the sales proceeds to P. The respondent also testified that he knew the details of the conspiracy and agreed to play a role in it. The trial judge focused on the fact that the respondent was not involved in the initial plan to transport drugs to Newfoundland and concluded that there was a conspiracy which had an unlawful objective, but that the respondent was not a party to the agreement to conspire.

HELD: Appeal allowed. The judge erred in applying the law of conspiracy to the undisputed evidence against the respondent. The evidence, which was accepted by the judge, showed that the respondent was fully aware of the plan to bring cocaine and marihuana into Newfoundland for the unlawful objective of selling them locally. He agreed to sell and did sell these drugs. The respondent’s membership in the conspiracy was established by his knowledge of the conspiracy and his agreement to join it by agreeing to further its unlawful objective of selling the drugs locally. The fact that he was not an original member of the conspiracy did not prevent him from becoming a member later. The agreed evidence and his own testimony led to the inevitable conclusion that the respondent was a member of the conspiracy. The judge failed to appreciate the difference between being a party to a conspiracy and being a conspirator. The judge’s finding that the respondent agreed to participate in the conspiracy by trafficking the drugs was actually a finding that he was a member of the conspiracy. But for the judge’s misapprehension of conspiracy law and consequent application of the wrong law to the facts, he would have found the respondent guilty of conspiracy.

R. v. Noseworthy, [2018] N.J. No. 372, Newfoundland and Labrador Court of Appeal, C.W. White, L.R. Hoegg and F.P. O'Brien JJ.A., December 3, 2018. Digest No. TLD-January142019001