COURT OF APPEAL FOR ONTARIO DATE: 20220622 DOCKET: C69244
Judges: Trotter, Sossin and Favreau JJ.A.
BETWEEN
Her Majesty the Queen Respondent
AND
Nicholas Baksh Appellant
Counsel: Maija Martin and Stephanie Brown, for the appellant Ian Bell, for the respondent
Heard: June 1, 2022
On appeal from the convictions entered by Justice Shaun S. Nakatsuru of the Superior Court of Justice, dated December 9, 2020.
Favreau J.A.:
[1] The appellant, Nicholas Baksh, was found guilty of four counts of drug trafficking. The convictions arose from the trafficking of cocaine to an undercover police officer on four occasions.
[2] The appellant was also found guilty of three firearm offences. These convictions arose from an unlicensed loaded firearm found in the car occupied by the appellant when he was arrested on the trafficking charges.
[3] The appellant appeals his convictions on the following three grounds: [1]
- The trial judge erred in improperly using similar act evidence across the trafficking counts;
- The trial judge erred in preventing the appellant’s trial counsel from cross-examining one of the arresting officers on prior findings of discreditable conduct; and
- The verdicts on the firearm offences were unreasonable because they were based on circumstantial evidence of the appellant’s knowledge and possession despite the availability of other reasonable inferences.
[4] For the reasons below, I would dismiss the appeal.
A. The trial judge did not improperly rely on similar act evidence
(1) Background relevant to the four trafficking convictions
[5] The four charges of trafficking arose from the sale of cocaine to an undercover officer, Detective Constable (“DC”) Singer. The officer made arrangements with and purchased cocaine from a trafficker on April 10, April 18 and May 9, 2018. On June 1, 2018, DC Singer arranged a fourth purchase but, before the transaction was completed, the appellant was arrested at the location where DC Singer was scheduled to meet the trafficker. At the time of the arrest, the police found no cocaine in the appellant’s possession.
[6] At trial, the only issue on the trafficking charges was the identity of the trafficker. Specifically, the issue on the first three counts was whether DC Singer purchased the cocaine from the appellant. On the fourth count, the issue was whether the appellant was the person with whom DC Singer arranged to purchase cocaine on June 1, 2018.
[7] DC Singer testified that he purchased cocaine from the same person on April 10, April 18 and May 9, 2018, and that he arranged to purchase cocaine from the same person on June 1, 2018. He further testified that he recognized the appellant in court as the same person he dealt with on the first three occasions. He also testified that he communicated with the trafficker using the same cell phone number on all four transactions.
[8] The trial judge found that DC Singer was a credible and reliable witness. He found that DC Singer’s evidence was internally consistent and plausible, and that he had a good recollection. The trial judge noted that DC Singer’s evidence was based on observations made on more than one occasion, thereby making it more reliable. However, the trial judge also acknowledged the frailties of identification evidence and stated that DC Singer’s “observations and recollection of who the trafficker is must be scrutinized carefully”. With this caution, the trial judge addressed each transaction separately for the purpose of reviewing the evidence confirming that DC Singer dealt with the same person on all four occasions and that the appellant was that person.
Count 1 – April 10, 2018
[9] On the first count, the trial judge reviewed DC Singer’s evidence that he was able to see the appellant for a few minutes during the transaction. The trial judge noted that, while DC Singer had a “reasonable opportunity to look at the trafficker in order to make a good identification, standing alone, identification of the trafficker as [the appellant] on this occasion by the undercover officer has a number of shortcomings”. The trial judge then reviewed other evidence that he found satisfied him beyond a reasonable doubt that the appellant was the trafficker DC Singer dealt with on April 10, 2018, which included:
- DC Singer’s evidence was that he dealt with the same person on all four occasions, and therefore his opportunities to observe the trafficker were not limited to April 10, 2018, and all occasions were relatively close in time.
- The verbal and text communications between DC Singer and the trafficker showed that “there was a mutual understanding by both buyer and seller that they are the same two individuals on all four occasions”.
- When DC Singer met the trafficker on April 10, 2018, he was driving a silver Honda Civic, with a licence plate associated with the residence where the appellant’s parents lived. The appellant’s mother was the owner of the vehicle, which she allowed the appellant to drive. Based on the mother’s evidence and the surveillance evidence, the trial judge was satisfied that the appellant “practically lived, if not actually lived” at that residence at the relevant time, and that he therefore had access to the vehicle. In addition, the appellant was driving the vehicle in question when he was arrested. Based on the evidence surrounding the vehicle, the trial judge concluded that it was a “natural and logical inference” that it was the appellant who was driving the vehicle at the April 10, 2018 meeting with DC Singer.
- The phone number DC Singer used to communicate with the trafficker on April 10, 2018, was associated with a cellphone found in the vehicle in which the appellant was arrested on June 1, 2018. After the police found the phone, DC Singer called the number he had used to set up all four drug transactions and the phone rang instantly. While the other officer who was holding the phone at the time did not answer or check the incoming number, the trial judge accepted that this evidence should be given some weight because it “would be an unlikely, though not an impossible coincidence that someone else called at the exact same time”.
[10] Based on all these circumstances, the trial judge concluded that, when he considered “the whole of the evidence properly admissible on count number 1”, the “only reasonable inference” was that the appellant was the trafficker.
Count 2 – April 18, 2018
[11] On the second count related to the transaction on April 18, 2018, the trial judge again reviewed DC Singer’s opportunity to identify the appellant. He concluded that there were issues with DC Singer’s identification of the appellant on this occasion too because, while DC Singer had a “close look at the trafficker”, his opportunity to observe him was “brief” and his “description of the trafficker was short and there were no unique or outstanding identifiers”.
[12] On that basis, the trial judge turned to “other factors” which he found supported the inference that the appellant was the trafficker on April 18, 2018. These included factors similar to those on which he relied for the April 10, 2018 transaction:
- DC Singer’s evidence was that the trafficker was the same person he dealt with on the first transaction. The transaction had occurred just over a week before and DC Singer was not impeached on this evidence in cross-examination.
- While the trafficker did not use the silver Honda Civic on this occasion, he was in another car that the police saw leaving the appellant’s residence shortly before the transaction. This car was driven by a man who generally fit the description of the person with whom DC Singer met.
- During the transaction, the trafficker returned to a topic of conversation he had started when he first met DC Singer on April 10, 2018. On that occasion, the trafficker told DC Singer to “get his boys to call him”. On April 18, 2018, the trafficker asked DC Singer if he “had told his boys to call”. The trial judge was satisfied that this evidence supported a finding that DC Singer had dealt with the same person on both occasions, finding that “it is only if the same person, who is involved on both dates, would it be logical that this topic be returned to by the trafficker”.
- DC Singer set up this transaction using the same phone number he used to set up the first transaction.
Count 3 – May 9, 2018
[13] On the third count, the trial judge noted that the interaction between DC Singer and the appellant was very brief, lasting approximately 10 seconds. In addition, the interaction involved a car-to-car handoff, which did not give DC Singer much of an opportunity to observe the trafficker. However, again, the trial judge was satisfied that the Crown had proven that the trafficker from this transaction was the appellant based on other evidence, including the following:
- The trafficker’s behaviour showed that he was familiar with DC Singer. He clearly recognized DC Singer’s car without requiring any information about it. He also handed over the cocaine without first receiving any money, which the trial judge found would not have made sense if the trafficker was not familiar with DC Singer because “the officer could have easily driven off with drugs without paying for them”.
- The trafficker was driving the same silver Honda Civic that was used during the first transaction and that was associated with the appellant’s residence. Based on surveillance evidence, the police observed someone wearing similar clothes to those worn by the trafficker arriving at the residence in the silver Honda Civic after the transaction.
Count 4 – June 1, 2018
[14] The appellant was arrested on June 1, 2018, at the time and location that DC Singer and the trafficker arranged to meet. The police arrested the appellant on site before the transaction took place.
[15] As indicated above, there was no dispute that the appellant was the person the police arrested. The issue for the trial judge was whether the appellant was the person who had agreed to sell drugs to DC Singer on this occasion despite the fact that the police found no drugs on his person at the time of the arrest.
[16] Based on all the evidence available, the trial judge was satisfied beyond a reasonable doubt that the appellant was the trafficker. He relied on the following evidence in reaching this conclusion:
- At that time of the arrest, the appellant was driving the same silver Honda Civic he had driven on two out of three prior occasions.
- The appellant pulled his car into a parking spot close to DC Singer’s car, thereby showing that he recognized the car.
- The transaction was arranged using the same phone number as the previous transactions and this phone number was associated with the phone the police found in the silver Honda Civic after the arrest.
[17] In all these circumstances, the trial judge concluded: It would be a wild and implausible coincidence that [the appellant] would innocently just show up in the same silver Civic at the exact place and time the trafficker was communicating where Detective Constable Singer said he would.
(2) The trial judge did not commit any errors in using cross-count evidence
[18] The appellant argues that the trial judge erred in relying on similar act evidence across the drug trafficking counts. The appellant submits that the trial judge was not permitted to rely on similar act evidence without first conducting an inquiry pursuant to r. 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, and, had he done so, he would have concluded that this was not an appropriate case for the admission of similar act evidence. The appellant argues that this error led the trial judge to impermissibly rely on propensity reasoning in finding him guilty of the drug trafficking charges.
[19] In my view, the trial judge committed no such errors.
[20] As a general rule, evidence of similar acts of misconduct is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. This general exclusionary rule applies to evidence of similar acts unrelated to the charges at trial and similar acts related to other counts at trial: R. v. Tsigirlash, 2019 ONCA 650, at para. 23. In Handy, at para. 37, the Supreme Court explained the rationale for this exclusionary rule:
The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible[.]
[21] While evidence of prior misconduct beyond the scope of the charge is generally inadmissible, the court in Handy recognized a “narrow exception” to this rule of exclusion in circumstances where “previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”: at para. 41.
[22] Where the Crown seeks to rely on similar act evidence, whether across counts or based on acts that are unrelated to the charges, the Crown is required to bring an application to admit the evidence pursuant to r. 30 of the Criminal Proceedings Rules. On such an application, the Crown bears the onus of demonstrating that the similar act evidence meets the narrow exception for admissibility: Tsigirlash, at paras. 26-27.
[23] These are the general principles that apply to the admissibility of similar act evidence. However, in this case, the threshold issue that arises is whether the evidence the trial judge relied on across the four drug trafficking counts is properly characterized as similar act evidence. In my view, contrary to the arguments made by the appellant, it is not, and this is not a case in which the trial judge was required to conduct a similar act evidence inquiry.
[24] While the trial judge relied on some of the same evidence across the different counts, he did not do so for the purpose of embarking on impermissible propensity reasoning. Rather, he considered evidence across the counts that was relevant to identifying the trafficker on all counts. In other words, he did not rely on the evidence for the purpose of reasoning that, because the appellant was the drug trafficker on one occasion, he was more likely to be the drug trafficker on other occasions. Rather, the trial judge relied on the continuity of the evidence across the four drug trafficking counts, which served to confirm DC Singer’s identification of the trafficker as the appellant on each occasion.
[25] This evidence included:
- The fact that the same silver Honda Civic, which was associated with the appellant’s family and residence, was used on three occasions during which transactions were planned or executed, including at the time of the appellant’s arrest.
- The use of the same phone number for each transaction, and the fact that the cellphone found in the silver Honda Civic at the time of the arrest rang instantly when DC Singer called that number.
- The evidence that the trafficker recognized DC Singer and his car from one transaction to the next.
[26] Not all instances of reliance on evidence across counts amounts to impermissible similar act evidence or evidence that raises a risk of propensity reasoning: see e.g., R. v. Settle, 2021 ABCA 221, at paras. 34-36; R. v. Giesbrecht, 2019 MBCA 35, 373 C.C.C. (3d) 70, at paras. 73-77. Whether the evidence is properly characterized as similar act evidence depends on the use to which the evidence is put: see e.g., R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, at paras. 29, 33; R. v. deKock, 2009 ABCA 225, 454 A.R. 102, at para. 36. In this case, the trial judge did not rely on the evidence to reason that the appellant was the trafficker because he behaved in the same or similar ways on each occasion. Rather, the trial judge relied on specific pieces of evidence linked to the trafficker – his car, his cellphone and his apparent familiarity with DC Singer – as confirmatory of DC Singer’s identification of the appellant as the trafficker.
[27] It is worth noting that, at the outset of his decision, the trial judge recognized that he was required to consider each count separately and to avoid propensity reasoning:
Finally, on this multi-count information, I must be mindful that each count must be considered separately; that is, the evidence on one count cannot be used to prove another count. Any propensity reasoning is prohibited.
[28] When the trial judge stated that “the evidence on one count cannot be used to prove another count”, he went further than necessary in stating the principle at issue. As reviewed above, evidence can be relevant to more than one count without qualifying as similar act evidence. Nevertheless, this aspect of his decision, and similar statements made throughout his decision, demonstrate that he was alert to the pitfalls of misusing evidence from one count to the other for the purpose of propensity reasoning.
[29] Accordingly, I would give not effect to this ground of appeal.
B. The trial judge did not err in limiting cross-examination of the arresting officer
[30] The appellant argues that the trial judge impermissibly prevented his lawyer from cross-examining one of the arresting officers about the officer’s prior misconduct. I would not give effect to this ground of appeal.
[31] At trial, the appellant’s trial counsel sought to cross-examine one of the arresting officers, DC Galiotos, about comments made by Block J., of the Ontario Court of Justice, regarding his conduct in another case, R. v. Upper, 2019 ONCJ 969.
[32] In Upper, the accused testified that DC Galiotos knelt on his neck and back, punched him in the eye repeatedly and demanded “Where is the stash?”: at para. 22. In his decision, Block J. accepted the accused’s evidence, rejected DC Galiotos’s denial that this occurred and made the following findings, at para. 25:
I reject this evidence as a fiction concocted as an ex post facto explanation for the injury to the defendant. I accept the evidence of Mr. Upper. I find that he was punched by Galiotos for no reason related to legitimate police purposes. I find Galiotos an incredible witness.
[33] During the trial in this case, trial counsel started cross-examining DC Galiotos on Block J.’s conclusions in Upper. After a few exchanges about the circumstances of that case and parallel proceedings involving the police complaints process, trial counsel said, “Let me tell you … what [Justice Block] said and see if you agree with me”. As trial counsel began describing the facts of the case, Crown counsel objected on the basis of the decision in R. v. Ghorvei (1999), 46 O.R. (3d) 63 (C.A.).
[34] Following a relatively lengthy exchange on this issue, the trial judge directed that he would not allow trial counsel to ask questions about whether DC Galiotos agreed or disagreed with Block J.’s findings on his credibility, but that trial counsel could ask questions surrounding the circumstances of the events leading to Block J.’s findings:
I think [the Crown’s] objection to the question as framed by [trial counsel] is proper. Although in the course of submissions, I think [trial counsel] has changed the direction of his questioning. Certainly, it’s my view that, you know, as Ghorvei states that … one can’t simply cross-examine upon … previous findings of … non-credibility or even dishonesty, by other judges absent something more in terms of linking. On the other hand, of course, you know, prior discreditable conduct by any witness, whether a police officer or not, is relevant to credibility but I think as the way the cross-examination was going, … it was improperly framed, certainly it is improper to simply ask the officer to comment on a finding made by Justice Block whether he agrees or disagrees. All that being said, … as reframed, I think [trial counsel] wants to get at … relevance. So I think what we’ll do at this point is we’ll call the officer back in and we’ll hear the question again and we’ll see – or a different question and … we’ll take it question by question in terms of where it’s gonna go from here.
[35] Subsequent to this ruling, trial counsel asked two or three very general questions about the circumstances underlying the Upper decision and the impact it had on DC Galiotos. Trial counsel then moved on to DC Galiotos’s conduct in this case and did not come back to the circumstances or findings in Upper.
[36] The appellant argues that the trial judge impermissibly limited cross‑examination of DC Galiotos that was relevant to his credibility. I disagree.
[37] In Ghorvei, at para. 29, this court made clear that a witness can be cross‑examined on the underlying misconduct that may have given rise to a finding that a witness’s evidence was not credible. However, at para. 31, this court limited the appropriate scope of that cross-examination:
In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case.
[38] It is evident from the trial judge’s ruling on this issue that he was only concerned with the questions on cross-examination that directly related to Block J.’s findings about DC Galiotos’s conduct and credibility. Otherwise, the trial judge directed that trial counsel could ask questions about the facts and circumstances leading to those findings and that he would deal with the questions asked on a case-by-case basis. As such, the trial judge’s ruling is consistent with this court’s decision in Ghorvei.
[39] Both the appellant and the respondent referred to the Superior Court’s decision in R. v. Holloway, 2021 ONSC 6136, where Harris J. discussed the extent to which Ghorvei prohibits certain lines of questioning. On the basis of the reasons in Holloway, both parties suggested that Ghorvei should not be read as imposing a prohibition on asking witnesses questions about prior negative credibility findings. Instead, the parties suggested that Ghorvei should be read as requiring some degree of evidentiary foundation before such questions can be asked, although they disagreed about how much of a foundation was necessary.
[40] In my view, it is not necessary to decide the precise scope and limits of cross-examination permitted and precluded by Ghorvei in this case. The determination of this issue is not determinative of the appeal. Ultimately, after the trial judge made his ruling, trial counsel only asked two or three more questions related to the circumstances in Upper and then moved onto other matters. The trial judge’s ruling only narrowly circumscribed trial counsel’s ability to cross-examine DC Galiotos. Trial counsel could have gone far beyond the scope of the questions he asked regarding the underlying conduct giving rise to Block J.’s adverse credibility findings about DC Galiotos in Upper, but he chose not to do so. Moreover, given that there were no Charter applications and that the circumstances of the appellant’s arrest were peripheral to the issues at trial – unlike the circumstances in Holloway – the trial judge’s ruling regarding the one question he precluded trial counsel from asking on cross-examination would not have had any impact on the outcome at trial.
C. The firearm verdicts were not unreasonable
[41] At the time the appellant was arrested on June 1, 2018, the police found a loaded Glock 17 under the front passenger seat of the silver Honda Civic. On that basis, the appellant was charged with three counts related to the possession of an unlicensed loaded firearm.
[42] While the evidence in support of these counts was circumstantial, the trial judge was satisfied that, based on the evidence as a whole, the only reasonable inference was that the appellant was in possession of the firearm. In reaching this conclusion, the trial judge relied on the following evidence:
- The gun was found in a Lacoste bag under the front passenger seat. A photo of the area taken before the police found the gun showed that the strap of the bag was visible. The trial judge found that the bag was therefore “not totally hidden”, which was some evidence that the appellant knew about the gun.
- The bag in which the gun was found was unzipped. The gun was loaded and had a laser sight turned on. The gun was within the appellant’s reach. The trial judge held that the gun was too valuable and dangerous for someone other than the appellant to have placed it within his reach under the passenger seat without his knowledge.
- When the police conducted a search of the appellant’s residence, they found ammunition in the appellant’s bedroom that could be used in the gun found in the car. The trial judge held that a logical inference is that the “bullets and gun belong to [the appellant]”.
- The trial judge accepted evidence from the appellant’s mother, who owned the car in which the gun was found, that she had no knowledge of the gun. The trial judge stated that he was “sure she would be shocked to find a gun there” and that “[c]learly, she did not put it there”.
[43] Based on these circumstances, the trial judge was satisfied that there was no other reasonable inference than that the appellant placed the gun where it was found and that he therefore had knowledge and control of it. The trial judge concluded, “It is entirely speculative and irrational that some other person had put the gun there without [the appellant’s] knowledge”.
[44] The appellant argues that the firearm-related verdicts are unreasonable because there were other reasonable inferences available to the trial judge. For example, the appellant suggests that, because the appellant’s mother owned the car and other members of his family used the car, the appellant was not the only person with access to the car who could have stored the firearm under the passenger seat.
[45] In my view, there is no merit to this argument.
[46] As the court held in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, where a case is based on circumstantial evidence, the question on appeal “becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”.
[47] Contrary to the suggestion made by the appellant, the trial judge did not just rely on the fact that the firearm was under the front passenger seat of the car occupied by the appellant to conclude that the appellant was in possession of the firearm. The trial judge reviewed all the evidence relevant to these charges, including the visibility of the strap of the bag in which the firearm was found, the fact that the firearm was loaded and appeared to be ready for use and the fact that the ammunition discovered in the appellant’s bedroom could be used with the firearm. The trial judge considered the suggestion that someone else may have placed the gun under the passenger seat without the appellant’s knowledge and explained why this was “entirely speculative and irrational”. He also specifically explained why there was no basis for an inference that the appellant’s mother may have placed the gun in that location.
[48] In the circumstances, the trial judge’s conclusion that there was no other reasonable inference than that the appellant was in possession of the gun was well supported by the record and entirely reasonable. Accordingly, I see no basis for finding that the verdicts on the firearm charges were unreasonable.
D. Disposition
[49] I would dismiss the appeal.
Released: June 22, 2022 “G.T.T.”
“L. Favreau J.A.”
“I agree. Gary Trotter J.A.”
“I agree. Sossin J.A.”
[1] While the notice of appeal states that the appellant also seeks leave to appeal sentence, that issue was not pursued in written and oral submissions. Therefore, the appellant’s request for leave to appeal sentence is dismissed as abandoned.
