R. v. S.H., 2020 SCC 3

In case court erred leading to unfair trial of accused, such miscarriage of justice cannot be cured and re-trial is the only remedy.

The Appellant was charged with possession of Cocaine, Oxycodone and marijuana for the purpose of trafficking along with six other people, at a rural residence near Bradford, where police has executed a search warrant at the appellant’s office. At this officer of appellant, Officer 1 and Officer 2 discovered an ounce of cocaine in a small safe in a basement and more than 45 marijuana plants growing outside the house. As a result, the Appellant was charged with possession of various drugs for trafficking along with C.H., appellant’s son who was also alleged to be involved in the drugs case where a phone was found in which vital evidence was gathered therefrom. The Appellant and His son were communicating through medium of Emails and Texts which were inadmissible under section 31.1, 31.2, 31.3 of the Canada Evidence Act.

Thereafter, Crown’s In Chief Consisted of the testimony and out of four Officers only two Officers attended the property to execute the search warrant. Amongst these, Officer 1 released the other five people present at the property at the time of search in which they denied to have knowledge of any involvement in the items seized. And the Crown did not call for any Evidence of the same. It was when the case was reopened that the Crown recalled the case by summoning Officer 2 to give the evidence. Officer 2 couldn’t verify whether the appellant was possessing the drugs because nothing was disclosed. He confirmed that police also failed to seize the cell phone at the time of search and appellant confessed to possess pills and the Marijuana Bag after Officer 2 told that the police will “Rip Apart” the house.

Defense Counsel pleaded that the case had insufficient evidence of proof on appellant possessing drugs and also insufficiency of proof of residence. By this, the defense counsel characterized that there was no proof of residence and it breaches the rule laid down by House of Lords in Browne v. Dunn (1893) by just reliance on hearsay objection in closing argument. And Trial Judge erred in the law by permitting the court to reopen the case and curative proviso cannot rectify this error because there was no evidence against the appellant which was overwhelming. The linking of an involved number with the appellant and his son was also pleaded to be not satisfactory and as a result such evidence was kept aside by the Crown as it was inappropriate to consider on appeal.

When the case reached the Supreme Court, the majority bench looking at the case observed that on the basis of evidence mentioned, it is essential to reopen the case and that evidence led prior to the re-opening was overwhelming. Court re-affirmed the verdict of Court of appeal and said that it did not err in putting curative proviso to use to sustain convictions.

In addition, the bench also observed that the Crown’s burden to establish grounds of a retrial is high and in the light of this, the trial judge failed to hold Voir Dire to determine the admissibility of the appellant’s disclosure of his mobile phone number to Police Officer and failed to disclose of the ending number “6847” as evidence. As a consequence, the bench also noted that such evidence is not admissible in the view that the trial judges erred in allowing the Crown in Splitting in case which led to unfair Trial and Miscarriage of justice for the accused persons that cannot be cured. Hence, a new trial was ordered to ensure justice.