Court of Appeal for Ontario

Date: 2019-01-14 Docket: C63691

Judges: MacPherson, Roberts and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Everald Brissett Appellant

Counsel

For the Appellant: Peter Thorning and Deepa Negandhi

For the Respondent: Brian Puddington and Kelvin Ramchand

Heard: January 8, 2019

On appeal from: The conviction entered by Justice Michael Code of the Superior Court of Justice on February 3, 2017, and from the sentence imposed on March 31, 2017.

Reasons for Decision

Background

[1] Three accused, Everald Brissett, Courtney Benjamin and Gary Morris, were charged with various drug related offences. Their joint trial proceeded before Code J. of the Superior Court of Justice over nine days in January 2017.

[2] At the conclusion of the trial, the trial judge convicted the appellant of possession of cocaine for the purpose of trafficking and acquitted him of possession of proceeds of crime. Benjamin was convicted of possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking. Morris was acquitted of possession of cocaine for the purpose of trafficking.

[3] The appellant received a sentence of ten years' imprisonment.

[4] The appellant appeals the conviction and the sentence.

Conviction Appeal

[5] The appellant appeals the conviction on two grounds.

Ground 1: Unreasonable Verdict

[6] First, the appellant contends that his conviction was unreasonable. The basis for this submission is the alleged inconsistency between the appellant's conviction and Morris' acquittal given the proximity, in time and location, of their involvement with the large drug stash found in apartment 1004 at 3101 Weston Road. He emphasized that it was unreasonable for the trial judge to rely on the appellant's possession of a key to an apartment containing drugs with a street value close to a million dollars to assist in proving his possession while disregarding the fact that Morris used a key to enter the apartment while carrying seven kilograms of cocaine.

[7] We do not accept this submission. As the Supreme Court of Canada noted in R. v. Sinclair, 2011 SCC 40, at para. 22, unreasonable verdicts are "exceedingly rare". In our view, this appeal is far removed from deserving this label.

[8] Although the appellant and Morris were reasonably closely connected, in time and place, to the events that led to the charges against them (they were not together when they were arrested), and although they both possessed keys and had access to a stash house holding valuable drugs, there is a crucial difference in their situations.

[9] Morris testified at the trial and gave an innocent explanation for his conduct and for his possession of the key. The trial judge believed his testimony. Morris was described as an unsophisticated witness. According to the trial judge, his testimony "was not only plausible. It had the ring of truth." Accordingly, the trial judge concluded that he was a "blind courier" and, therefore, "the essential element of knowledge has not been proved".

[10] The appellant did not testify at the trial. He called a witness – Ervin Malcolm, who was with him at the door of the stash apartment when they were both arrested – who testified that only he had the directions and key to the apartment and that the appellant was just "coming along for the ride". The trial judge pointed out that Malcolm's evidence was contradicted by the video surveillance cameras in the apartment building and by the police evidence that it was the appellant who had the key to the apartment. In the end, the trial judge described Malcolm and his testimony in this fashion:

My reasons for completely rejecting Ervin Malcolm's exculpatory account are both its internal improbability and the external contradiction of that account. It is hard to imagine a more complicated and improbable story.

I am satisfied that Ervin Malcolm was not a truthful witness. I completely reject his account.

[11] In conclusion, the trial judge believed the testimony of an accused who testified. He acquitted that accused, as he was bound to do. The trial judge rejected the evidence of a witness called by the defence and accepted the Crown evidence against the accused. He convicted that accused. There is nothing unreasonable about the trial judge's conclusion relating to the appellant's conviction.

Ground 2: Charter s. 11(b) Application

[12] Second, the appellant submits that the trial judge erred by dismissing his Charter s. 11(b) application.

[13] The time from the indictment to the trial was 36 months. The trial judge deducted one month as conceded defence delay, four months for other defence delay, and four months as exceptional circumstances, for a net delay of 27 months. This delay was inside the 30-month presumptive ceiling for trials in superior courts fixed in R. v. Jordan, 2016 SCC 27, at para. 46. The appellant asserts that the trial judge erred with respect to both four-month subtractions.

[14] The appellant challenges the four-month defence delay attribution on the basis that this delay was caused by the unavailability of a different co-accused's counsel to start the trial four months before it actually commenced. The appellant says that he should not be penalized, when he was ready, because of a delay caused by a co-accused.

[15] We are not persuaded by this submission. The trial judge's reasoning on this point was:

The only other period of "defence delay" was the four months in this Court, from September 2016 to January 2017, when Mr. Rusonik was not available for trial. Once again, I did not attribute this period of delay personally to Mr. Rusonik's client Morris. I attributed it to the case as a whole, as "defence delay" under the Jordan framework. Mr. Rusonik and his client have acted responsibly throughout, asking to hear from only two witnesses at the preliminary inquiry, making numerous realistic admissions, and consenting to committal in a timely way. They then waited patiently in this Court until the other accused arrived after their somewhat slower committals. Furthermore, Mr. Rusonik was the only counsel who was retained and on the record from the beginning in this Court. When he needed four months of delay in this Court, in order to clear his calendar, the other accused acquiesced in this delay and did not raise s. 11(b) concerns, presumably because they needed the further delay in order to complete their own retainers and prepare for trial. In all these circumstances, it would have been inappropriate to treat this four months of "defence delay" as applying narrowly to the accused Morris, as opposed to the case as a whole.

[16] We agree with this conclusion: see R. v. Albinowski, 2018 ONCA 1084, at paras. 37-39.

[17] The trial judge's second four-month subtraction was for the "exceptional circumstance" that the appellant sought, appropriately but quite late, the testimony of two additional police witnesses at the preliminary inquiry: Jordan, at paras. 69-75. We see no basis for interfering with the trial judge's conclusion on this issue. In the face of a late request, scheduling was a real issue for these two officers because of prior commitments and the security detail required for the Pan American Games in Toronto. This was an unexpected discrete event that the Crown could not reasonably be expected to remedy: Jordan, at para. 69. We do not accept the appellant's submission that the Crown should have remedied the problem by severance. This potential remedy was not requested and was not realistic at this juncture.

[18] Ultimately, the trial judge reached this conclusion:

Having found that the total period of relevant delay in this case is 27 months and, therefore, below the 30 month presumptive ceiling in Jordan, it would be a "rare" case where a s. 11(b) violation could still be found. The present case is not that "rare" case, given that the only periods of unjustified delay were relatively short, as explained above. In these circumstances, the case did not take "markedly longer than it reasonably should have."

[19] We agree with this conclusion.

Sentence Appeal

[20] The appellant contends that a sentence of ten years' imprisonment is unfit.

[21] We disagree. The amount of cocaine involved in the appellant's role in the drug operation was huge – 15.6 kilograms. He had a previous conviction, albeit dated, for possession of cocaine for the purpose of trafficking.

Disposition

[22] The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.