R. v. Samuels, 2007 ONCA 608

Court File and Parties

Citation: R. v. Samuels, 2007 ONCA 608 Date: 2007-09-07 Docket: C44725

Court of Appeal for Ontario O’Connor A.C.J.O., MacPherson and Juriansz JJ.A.

Between: Her Majesty the Queen, Appellant and Vincent Samuels, Respondent

Counsel: Steve Coroza for the appellant David Butt for the respondent

Heard: September 6, 2007

On appeal from the judgment of Justice Wailan Low of the Superior Court of Justice dated October 28, 2005.

Endorsement

Endorsement

1This is a Crown appeal of the respondent’s acquittal at trial by judge alone on a charge of possession of cocaine for the purpose of trafficking.

2The respondent was arrested immediately after he got out of a car he had been driving. The police found a quantity of cocaine hidden in the car. The respondent shared the car with two other individuals and there was no direct evidence connecting the respondent to the cocaine. The theory of the Crown’s case was that the respondent was a supplier of Gayle, a drug dealer from whom an undercover officer had arranged to purchase cocaine. The undercover officer testified to his dealings with Gayle and Gayle’s cell phone conversations with the supplier he addressed as “Sammy.” The Crown position was that Gayle’s statements fixed the respondent with possession of the cocaine and an intention to traffick it.

3The trial judge ruled that Gayle’s statements to Sammy” as overheard by the undercover officer were not admissible under the hearsay exception for joint venturers. R. v. Carter (1982)., 67 C.C.C. (2d) 568 (S.C.C.).

4The trial judge found that step one of the Carter test was not satisfied. She said: “Assuming that the supplier, whether the first or the second agreed to sell to Gayle, I am nevertheless not satisfied beyond a reasonable doubt that the supplier and Gayle had a common purpose. Gayle’s purpose was to acquire. The supplier’s purpose was to sell. That is not a common purpose a fortiori if the purchase is not an offence.”

Analysis

5The respondent concedes that the trial judge erred by taking too narrow a view of what could constitute a common purpose. The relationship of a seller and buyer of drugs is capable of giving rise to a finding of a common purpose to effect the transaction under the first step of the Carter analysis.

6In our view, the trial judge’s error of law in this respect fundamentally flawed her analysis of step one of the Carter test. We are not able to say that Gayle’s statements would have been excluded had the trial judge not made this error. If those statements had been admitted they could have been powerful evidence supporting a conviction.

7We do not accept the respondent’s argument that in arriving at her final decision the trial judge considered the hearsay statements she had earlier ruled inadmissible.

Disposition

8The appeal is allowed, the acquittal is set aside and a new trial ordered.