Court of Appeal for Ontario

Date: 2001-12-03 Dockets: C33156 and C32541

Re: Her Majesty the Queen (Respondent) v. Ebere Chibuike and Franklin Godwin (Appellants)

Before: McMurtry C.J.O., Rosenberg and Goudge JJ.A.

Counsel: Gregory Lafontaine, for the appellant Chibuike Jean Claude Dubuisson, for the appellant Godwin Fergus ODonnell, for the respondent

Heard: November 22, 2001 Released Orally: November 22, 2001

The appellant Chibuike appeals from the conviction imposed by Justice Patrick D. White dated June 21, 1999

The appellant Godwin appeals from the conviction imposed by Justice White dated June 21, 1999 and from the sentence imposed by Justice White dated July 16, 1999

Endorsement

[1] The appellant Godwin’s appeal was premised on the trial judge having accepted his testimony that he only learned that the package contained drugs on January 12. However, for reasons that he gave, the trial judge rejected that testimony. There was a body of circumstantial evidence that together with the intercepted conversations supported the trial judge’s conclusion that the appellant Godwin was involved with the co-accused Chibuike in the importation of the drugs from Thailand.

[2] As to the submission that the trial judge misused the appellant Godwin’s access to the disclosure, we are satisfied that when the reasons are read as a whole, it is apparent that the trial judge had rejected Godwin’s evidence without relying on the impermissible inference. Before making the impugned comment, the trial judge gave extensive reasons for finding that Godwin’s testimony was implausible.

[3] With respect to the convictions for attempted possession for the purpose of trafficking, we are satisfied that the Kienapple rule does apply and that the conviction must be stayed in relation to both Godwin and Chibuike having regard to the unique factual context in which a single act underlay the charges of conspiracy to import, importing, and the attempted possession for the purpose of trafficking. In view of this conclusion, we need not determine whether such an offence of attempt to possess for the purpose of trafficking exists in law.

[4] We are not persuaded that the offence of conspiracy to possess for the purpose of trafficking does not exist in law. The fact that, in virtually all cases, the same evidence would also lead to a conviction for conspiracy to traffic is no basis for failing to give effect to the clear words of s. 465 of the Criminal Code. There is nothing inherently implausible in the offence of conspiracy to possess for the purpose of trafficking.

[5] As to the appellant Chibuike’s argument that there should have been a directed verdict, we are satisfied that there was a large body of evidence, even without Godwin’s testimony, upon which a trier of fact could reasonably convict. A compelling inference arises from the Crown’s case that, prior to the actual importation, the appellant Chibuike had been in contact with the person who sent the drugs and that he had participated with Godwin in the arrangements to import the drugs.

[6] Accordingly, the appeals of Godwin and Chibuike are dismissed except that the convictions for attempt to possess for the purpose of trafficking are stayed.

Signed: “R.R. McMurtry C.J.O.” “M. Rosenberg J.A.” “S.T. Goudge J.A.”