Supreme Court


Use of

curative proviso

appropriate where trier of fact would inevitably convict

Border officers discovered and seized cocaine found hidden in concealed compartment of pickup truck accused attempted to drive from United States into Canada. Only issue at trial was whether accused knew of cocaine in truck. Trial judge rejected accused’s testimony that acquaintance asked him to drive truck and convicted him of importation and possession for purposes of trafficking of 50 kg of cocaine. Trial judge relied on amount and value of cocaine, between $1.5 million and $1.75 million; expert evidence from police officer pertaining to customs and habits of drug couriers, including fact he had never encountered blind courier; evidence that accused had detached fob that controlled access to concealed compartment from key chain before handing keys to border officer and other circumstantial evidence to conclude that accused knew of cocaine. Majority of Court of Appeal dismissed accused’s appeal. Accused’s further appeal dismissed. Trial judge erred in relying on officer’s testimony. Impugned testimony not legally relevant since guilt or innocence of accused persons officer encountered in past legally irrelevant to guilt or innocence of accused. Nor was testimony necessary. Determining whether accused knew about drugs was not beyond knowledge and experience of trial judge and was not technical or scientific in nature. Testimony was inadmissible. Criminal Code s. 686(1)(b)(iii) curative proviso can only be applied where no reasonable possibility verdict would have been different had error not been made. Use of curative proviso appropriate where error harmless or trivial or where evidence so overwhelming that, notwithstanding that error not minor, trier of fact would inevitably convict. Trial judge demonstrated that accused’s evidence was complete contrivance and need not be considered. Without accused’s evidence or officer’s impugned evidence, remaining admissible circumstantial evidence overwhelmingly established accused’s guilt. In applying second branch of curative proviso in context of circumstantial case, it was not necessary to parse each item of evidence in search of possible innocent explanation; it was necessary to look at whole of admissible evidence in assessing strength of case.

R. v. Sekhon (Feb. 20, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35180) 112 W.C.B. (2d) 45.

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