Court of Appeal for Ontario
Feldman, Simmons and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Leighton Hopkinson
Appellant
Counsel:
Joseph Di Luca, for the appellant
Iona Jaffe, for the respondent
Heard: November 14, 2014
On appeal from the convictions entered on March 27, 2013 and the sentence imposed on May 1, 2013 by Justice Donald J. Halikowski of the Ontario Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant was convicted of trafficking in cocaine and possession of cocaine. He received concurrent sentences of 21 months. He appeals both convictions and the sentence.
2The appellant appeals his convictions on two grounds: insufficient reasons and unreasonable verdict. The latter submission is based on the position that the case was circumstantial and guilt was not the only reasonable inference from the evidence.
3In our view, the reasons for judgment, while brief, were sufficient to explain the route the trial judge took to conviction. A fair reading of paragraph 18 of the reasons makes it clear that in referring to the evidence listed in paragraph 14, he was including only the evidence listed under (c) in that paragraph which was admissible on the trial proper, and not the other evidence that he used to justify the arrest.
4We are also satisfied that the trial judge did not err in concluding, based on all the evidence including the evidence of the apparent hand to hand transaction, the finding of money that was accepted to be consistent with a drug trafficker’s cash proceeds, and the movements of the appellant before the apparent drug transaction, that the appellant had trafficked in cocaine to Mr. Kistodial. The fact that the officer did not actually observe anything transferred in the apparent hand to hand transaction did not undermine the trial judge’s finding, as that was not the only piece of evidence that formed the basis of the conviction.
5In addition, there was no evidence that was inconsistent with the conclusion of the trial judge. For example, there was no air of reality to the defense theory that Mr. Kistodial was the seller and not the buyer of the cocaine, given that when he was arrested 4 minutes after the transaction, no money was found on him.
6We also see no error in the conviction for possession of the piece of cocaine found in the appellant’s car. The trial judge made no error in concluding beyond a reasonable doubt that the appellant had possession and control of that piece of cocaine.
7We also would not interfere with the sentence imposed. We agree with the Crown that the trial judge’s reference to rehabilitation was not a driving factor to increase the sentence, but just a hoped-for by-product of the sentence. In our view, given the record of the appellant, the sentence imposed was fit.
8The appeal is therefore dismissed.
“K. Feldman J.A.”
“J. Simmons J.A.”
“S.E. Pepall J.A."