R. v. Hobbs (K.P.), 2010 NSCA 53

R. v. Hobbs (K.P.) (2010), 291 N.S.R.(2d) 340 (CA);

    922 A.P.R. 340

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.023

Kevin Patrick Hobbs (appellant) v. Her Majesty The Queen (respondent)

(CAC 302995; 2010 NSCA 53)

Indexed As: R. v. Hobbs (K.P.)

Nova Scotia Court of Appeal

Bateman, Saunders and Fichaud, JJ.A.

June 16, 2010.

Summary:

On April 8, 2005, the accused was arrested at Halifax airport after a police dog sniffed narcotics from his checked suitcase. His ticket indicated that he was going to Vancouver and returning the next day. The suitcase was searched. Traces of narcotics were found on the outside of the suitcase, on the accused's clothes and on the inside of a heat-sealed plastic bag containing $32,000 in cash. The outside of the plastic bag did not reveal traces of narcotics. The accused was charged with both possession of and transportation of criminally obtained goods, namely, the $32,000. The evidence also established that the accused had no employment or visible means of income other than his stated evidence that he was a poker player. He had rented a house which contained a marijuana grow operation. In 2006, the accused pleaded guilty in New York State to felony possession of marijuana and received a period of incarceration. The accused testified that he was going to a "big" poker tournament at a B.C. casino and that the entry fee was $2,000. A casino representative testified that there was no "big" tournament at the casino in April 2005. There were "mini tournaments" with an entry fee of $100 or less.

The Nova Scotia Supreme Court, in a judgment reported (2008), 270 N.S.R.(2d) 54; 865 A.P.R. 54; 2008 NSSC 226, convicted the accused, stating as follows: "I accept the evidence of the Crown witnesses and it together with the inferences drawn from the proven facts, coupled with [the accused's] attempts to mislead the Court convinced me beyond a reasonable doubt that the accused is guilty as charged".

The Nova Scotia Supreme Court, in a judgment reported (2008), 285 N.S.R.(2d) 52; 905 A.P.R. 52; 2008 NSSC 424, sentenced the accused to nine months' imprisonment for each offence (concurrent) plus two years' probation. A conditional sentence was inappropriate. The accused, now self-represented, appealed against conviction and sentence. He sought leave to adduce fresh evidence on the appeal to establish that he had ineffective representation by trial counsel. The accused also claimed, for the first time on appeal, that his s. 8 Charter rights were violated by an unreasonable search and seizure. Finally, the accused claimed that his sentence was demonstrably unfit and that the trial judge erred in failing to impose a conditional sentence.

The Nova Scotia Court of Appeal dismissed the appeal. The court provisionally admitted the fresh evidence to assess the incompetent trial counsel claim, but denied leave to adduce the fresh evidence as it was not credible in the sense that it was not reasonably capable of belief. The accused was effectively represented by counsel at trial. He was denied leave to raise a Charter claim for the first time on appeal. There was no error in imposing the nine month sentence.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - An accused appealed his convictions on the ground of ineffective trial counsel and sought leave under s. 683(1) of the Criminal Code to admit fresh evidence on appeal to substantiate that claim - Primarily, the accused claimed that counsel failed to follow his instructions to advance a s. 8 Charter challenge to the admissibility of evidence obtained in a dog sniff search of his luggage - Counsel responded that a s. 8 Charter challenge was discussed, but that he was specifically instructed not to bring it because the accused did not want the trial judge to become aware that he and his associates were under surveillance for some time or the reason for the surveillance - The Nova Scotia Court of Appeal provisionally admitted the fresh evidence to consider the incompetent trial counsel claim, but denied leave to admit the evidence on the ground that it was not credible in the sense that it was not reasonably capable of belief - The court accepted that the decision not to advance a s. 8 Charter challenge was a tactical decision, for good reason, to avoid the risk of the Crown introducing compromising evidence as to why, when and how the police had the accused and his associates under surveillance - See paragraphs 29 to 51.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused was convicted of both possession of and transportation of criminally obtained goods after $32,000 in cash was found following a dog sniff search of his luggage at the airport - At trial, the accused had made a tactical decision not to challenge the search under s. 8 of the Charter, to avoid the Crown introducing compromising evidence as to why, when and how the police had the accused and his associates under surveillance - The Nova Scotia Court of Appeal denied the accused leave to raise the s. 8 Charter issue for the first time on appeal - A high threshold (exceptional circumstances) was demanded before permitting argument on an issue not raised at trial - The test was particularly high where the accused sought to raise a Charter issue for the first time on appeal, as "Charter issues were too important to be dealt with in a factual void" - The court denied leave for three reasons: (1) the accused chose not to raise the Charter issue at trial; (2) the law had not radically changed since the accused's trial; and (3) the evidentiary record at trial was incomplete and insufficient to allow the court to determine the search issue - The court stated that "the [accused] should not be entitled to re-try the issue simply because he doesn't like the result" - See paragraphs 52 to 63.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Civil Rights - Topic 8584 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The accused was arrested on April 8, 2005, and, on August 18, 2005, was charged with possession and transportation of criminally obtained goods, namely, $32,000 in cash - In July 2005, the accused was arrested in a hotel room in New York State - Found in that room was 100 pounds of marijuana, US $178,000 and CDN $2,305 - On December 20, 2006, the accused pleaded guilty in New York State to a felony possession of marijuana - He was sentenced to jail - The Crown wanted to have evidence of the July 2005 New York State events admitted in the Canadian case - Also, the Crown sought to admit evidence of discovery of a marijuana grow operation in a home rented by the accused - The Crown's theory was that the $32,000 was generated through the sale of illicit drugs - The trial judge ruled that the evidence was admissible - While the proposed evidence was evidence of propensity, it was relevant to the issue of the accused's knowledge of the source of the $32,000 and to establish the criminal origin of the $32,000 - The probative value of the evidence outweighed its prejudicial effect - The Nova Scotia Court of Appeal affirmed the admission of the evidence - See paragraphs 64 to 73.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5862 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotics offences - [See Criminal Law - Topic 5862 ].

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or goods obtained by crime - On April 8, 2005, the 28 year old accused was arrested at Halifax airport after a police dog sniffed narcotics from his checked suitcase - His ticket indicated that he was going to Vancouver and returning the next day - The suitcase was searched - Traces of narcotics were found on the outside of the suitcase, on the accused's clothes and on the inside of a heat-sealed plastic bag containing $32,000 in cash - The outside of the plastic bag did not reveal traces of narcotics - The accused was convicted of both possession of and transportation of criminally obtained goods, namely, the $32,000 - The accused had no employment or visible means of income other than his stated evidence that he was a poker player - He had rented a house which contained a marijuana grow operation - In 2006, he pleaded guilty in New York State to felony possession of marijuana and received one year's imprisonment - The accused continued to deny his guilt and was not remorseful, as was his right - The trial judge rejected a conditional sentence as inappropriate and sentenced the accused to nine months' imprisonment on each charge (concurrent) followed by two years' probation - Although he had no prior record, he was not a stranger to the world of drugs and drug trafficking - A conditional sentence would not adequately address the principles of deterrence and denunciation respecting commercial drug trafficking - Given the risk of recidivism, serving his sentence in the community would endanger the community - The Nova Scotia Court of Appeal dismissed the accused's sentence appeal - The trial judge committed no error and "correctly concluded that a conditional sentence was inappropriate" - See paragraphs 89 to 95.

Criminal Law - Topic 5972

Sentence - Money laundering or proceeds of crime - [See Criminal Law - Topic 5862 ].

Cases Noticed:

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 40].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, leave to appeal denied (2006), 359 N.R. 392; 258 N.S.R.(2d) 400; 824 A.P.R. 400 (S.C.C.), refd to. [para. 40].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 40].

R. v. Hurley (G.D.) (2010), 401 N.R. 232; (2010), 350 Sask.R. 1; 2010 SCC 18, refd to. [para. 40].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 43].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 54].

R. v. A.M. (2008), 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 54].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 55].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 55].

R. v. Vidulich, [1989] B.C.J. No. 1124 (C.A.), refd to. [para. 56].

R. v. Ullrich (1991), 9 B.C.A.C. 304; 19 W.A.C. 304; 69 C.C.C.(3d) 473 (C.A.), refd to. [para. 57].

R. v. Shunamon (1990), 99 N.S.R.(2d) 275; 270 A.P.R. 275 (C.A.), refd to. [para. 58].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 58].

R. v. Fertal (G.D.) (1993), 145 A.R. 225; 55 W.A.C. 225; 85 C.C.C.(3d) 411 (C.A.), refd to. [para. 62].

R. v. Trabulsey (K.) et al. (1995), 80 O.A.C. 43; 97 C.C.C.(3d) 147 (C.A.), refd to. [para. 62].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 67].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 90].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 90].

Counsel:

Kevin Patrick Hobbs, on his own behalf;

Ann Marie Simmons, for the respondent;

Michael Wood, Q.C., and Betony Rowland (student), for Brian F. Bailey.

This appeal was heard on May 19, 2010, at Halifax, N.S., before Bateman, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On June 16, 2010, Saunders, J.A., delivered the following judgment for the Court of Appeal.