COURT OF APPEAL FOR ONTARIO
FELDMAN, BLAIR and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
COLIN SIMPSON
Appellant
John Kaldas for the appellant
Fergus O’Donnell and Chris de Sa for the respondent
May 29, 2007
On appeal from the judgment of Justice Susan Himel of the Superior Court of Justice dated October 14, 2005, with reasons reported at [2005] O.J. No. 5056.
INTRODUCTION
1The appellant appeals his convictions for trafficking in a controlled substance, possession for the purpose of trafficking, and possession of property obtained by crime on the grounds that the trial judge misapprehended the evidence and improperly admitted hearsay evidence. This appeal mainly examines the relationship between the traditional exception to the hearsay rule of a co-conspirator’s declaration and the more modern principled exception to hearsay evidence.
BACKGROUND
2In late October and early November 2002, the police conducted three undercover drug purchases. Shortly after the completion of the third drug purchase, a search warrant was executed on an apartment where the appellant was found.
3When he was arrested, the appellant had some of the photocopied police buy money and just over 100 grams of marijuana on his person. In the apartment bedroom, the police found a quantity of cocaine, a scale, a cell phone, a pager, and mail addressed to the appellant. The Crown alleged that the appellant was the supplier to the drug dealer, Rhys Williams, who in turn sold cocaine to the undercover officers.
4At trial, the undercover officer who completed the third purchase testified that she had conversations with Mr. Williams in which Mr. Williams indicated that he had to obtain drugs from his “guy” whom she believed to be his supplier. She also testified that Mr. Williams then phoned the appellant and attended at the premises the appellant rented. Surveillance officers confirmed that Mr. Williams had to be “buzzed” into the building because he did not have a key.
5Mr. Williams was not called as a witness. He was initially charged as a co-accused, but resolved his charges. The trial judge pointed out in her reasons for judgment that there was no explanation given as to why he was not called.
6The appellant testified that he formerly lived at the residence that was searched but had moved out some time earlier and that Mr. Williams was taking over the lease.1 He denied being a drug dealer, and stated that he had only stopped by the apartment for a drink and to smoke a marijuana cigarette. Mr. Williams, he said, had paid him in cash for expenses related to the apartment, which explained the presence of the drug buy money on his person.
7I will refer to additional aspects of the background below where it is relevant to the issue being considered. In the end, and for the reasons that follow, I would allow the appeal and order a new trial.
ISSUES
8Two discrete issues were argued on this appeal:
Did the trial judge err when she found that the appellant had powdered cocaine in his pocket when he was arrested?
Did the trial judge err by relying on the common law co-conspirators’ exception to the rule against hearsay when the principled approach would have warranted exclusion because necessity was not established?
1. Mistakes of Fact:
9In her reasons for judgment and reasons for sentence, the trial judge indicated on several occasions that the appellant had powdered cocaine in his pocket when he was arrested. The evidence was only that Mr. Williams had cocaine in his pocket upon his arrest.
10Crown counsel acknowledges that the trial judge did err in this respect. However, he submits that the case was so overwhelming against the appellant that it did not result in any trial unfairness, nor did it
