SCC Decision in R v Jackson
The Supreme Court of Canada (“SCC”) released its decision in the case of R v Jackson,  3 SCR 514 this morning. It also dismissed all twenty applications for leave.
The SCC affirmed Mr. Jackson’s conviction for illegally producing marijuana. Mr. Jackson’s challenge rested on his assertion that his conviction amounted to an unreasonable verdict within the meaning of s. 686(1)(a)(i) of the Criminal Code, RSC 1985, c C-46. To succeed, Mr. Jackson needed to demonstrate that no properly instructed jury (or trial judge, in this case) acting judicially could reasonably have found him guilty. Specifically, he argued that he had been convicted on the basis of his mere presence at the scene of a crime, and that this constituted an unreasonable conclusion by the trial judge. Mr. Jackson’s appeal came from the Quebec Court of Appeal, which also affirmed his conviction, with one judge dissenting.
The SCC was unable to reach unanimity on this case. Fish J., writing for the majority, held that while the proposition that mere presence at the scene of a crime is insufficient grounds for conviction is correct, it was not a proposition on which Mr. Jackson could rely given the facts of his case. Fish J. pointed to the reasons of the trial judge in concluding that Mr. Jackson’s conviction was founded on the cumulative weight of his presence at the scene, the rejection of his explanation for his presence there, the nature of the offence, the context in which it was commissioned, other circumstantial indicia.
The facts as summarized by Fish J. emphasize the wealth of circumstantial evidence against Mr. Jackson. He was arrested on the site of a secluded marijuana plantation, along with four others, in a remote area of a forest. The entire site was dedicated to the production of marijuana on a commercial scale and bore no evidence of other legitimate business or recreational activity. At the time of his arrest, Mr. Jackson had been there fore at least two days. He was found asleep in a camouflaged tent, which contained fertilizer and growing equipment, and was wearing boots when he emerged from the tent. Mr. Jackson did not challenge any of these findings by the trial judge.
Fish J. held that it was open to the trial judge to conclude that Mr. Jackson’s presence at the scene of the crime could only be consistent with his culpable involvements in the production of marijuana.
Deschamps J., on behalf of herself and LeBel J., wrote a strong dissent. She emphasized the broad investigative powers granted to police for (among other things) the purpose of gathering evidence to be used by Crown prosecutors in proving the commission of crimes beyond a reasonable doubt. The Crown cannot obtain convictions by means of
vague allusions or associations; not even the cumulative effect of many such allusions or associations can turn a lack of evidence into evidence that a properly instructed judge, acting judicially, might rely on to convict the appellant.
Deschamps J. held that there was a lack of evidence to ground a conviction in this case. She interpreted the trial judge’s reasons differently than the majority; in her view, his reasons support the contention that Mr. Jackson was convicted solely on the basis of his presence at the scene of the crime. Deschamps J. emphasized that the trial judge’s reasons repeatedly stressed the importance he attached to Mr. Jackson’s presence at the scene of the crime; the trial judge stressed the location of the scene, the presence of 5 people combined with equipment suitable for operation by 5 people, and the presence of fertilizer and equipment in Mr. Jackson’s tent. He rejected Mr. Jackson’s testimony, holding that if Mr. Jackson, as he testified, did not want to get involved with what was happening at the scene, he should and could have chosen to leave.
Deschamps J. pointed out there was no direct evidence establishing Mr. Jackson’s participation in the crime. There were no visual observations by the police, his fingerprints were not found on any of the objects used to grow, propagate or harvest the plants, and none of his co-accused made statements to the effect that he had taken part. The presence of the fertilizer in his tent and the fact that Mr. Jackson put on boots (which he claims were not his) when he exited the tent at the time of his arrest are insufficient to establish beyond a reasonable doubt that Mr. Jackson was producing marijuana or aiding and abetting in its production.
Moreover, while the judge stressed that the equipment at the site was consistent with the presence of 5 people, the evidence showed that there were only 3 tents, an unspecified number of mattresses and sleeping bags, a few pieces of clothing, one flashlight, one air pistol, and 3 pairs of scissors (among a few other pieces of equipment). Deschamps J. held there was absolutely nothing in the evidence to justify the finding that the equipment was consistent with the involvement of 5 people. She would also have disregarded that Mr. Jackson’s longtime friend and fellow countryman was also found at the scene and clearly guilty of the offence, pointing out that no Canadian is guilty by association. Overall, Deschamps J. found that there was a lack of evidence that could be used to establish the essential elements of the offence. She found that the judge had not analysed the elements of the offence, and that had he done so, he would have had to conclude that the appellant’s unexplained presence was not evidence of his participation in the crime. Given these reasons, she would have allowed the appeal and entered an acquittal.