DATE: 20050419
DOCKET: C41010 and C41106
COURT OF APPEAL FOR ONTARIO
GOUDGE, FELDMAN AND BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
William J. Parker, Q.C.
For the appellant
(respondent on cross-appeal)
Respondent
(Appellant on cross-appeal)
- and -
PETER BRUCE LAWSON
Moiz Rahman
For the Crown, respondent
(appellant on cross-appeal)
Applicant/Appellant
(Respondent on cross-appeal)
Heard: March 10, 2005
On appeal from the conviction by Justice Peter Cumming of the Superior Court of Justice dated September 26, 2003, reported at [2003] O.J. No. 3782, and on appeal from the sentence imposed by Justice Peter Cumming dated December 1, 2003, reported at [2003] O.J. No. 5040.
GOUDGE J.A.:
[1] On September 26, 2003, after a trial before Cumming J. sitting alone, the appellant was convicted of conspiracy to import cocaine into Canada between May 24, 1996 and July 24, 1997. He was also convicted of making a false statement on January 11, 1996 to procure a false passport, a charge to which he had pleaded guilty. On December 1, 2003 he was sentenced to eight years in jail for conspiracy, and six months concurrent on the passport conviction.
[2] The appellant appeals from his conspiracy conviction. He argues that the trial judge erred in finding sufficient evidence directly admissible against him to prove his probable membership in the conspiracy, and in deciding on his credibility at this step rather than the last step of the analysis as required by R. v. Carter (1982), 1982 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.). The appellant also argues that the trial judge erred in failing to caution himself about the reliability of the hearsay evidence tendered against him at the final step of the Carter analysis, and finally that the trial judge misconstrued certain pieces of evidence.
[3] The Crown cross-appeals his sentence, arguing that it is manifestly unfit in the circumstances.
[4] For the reasons that follow I would dismiss both the appeal and the cross-appeal.
[5] The case against the appellant was that he conspired with Angus Rodger and Robin Cornish and others unknown to import some 100 kilograms of cocaine by concealing it in the appellant’s boat and sailing it from the Caribbean to Canada. Neither Rodger nor Cornish were indicted and neither gave evidence. There was no explanation for their absence from the trial.
[6] In brief outline the evidence for the Crown was as follows.
[7] The principal Crown witness was Corporal (now Sergeant) Lambert, an undercover RCMP officer. He testified to a number of meetings with Rodger at which the conspiracy was discussed. In September 1996 Rodger invited Lambert on a boat cruise in the Toronto harbour and told him that they would be joined by the two sailors who were going to bring the cocaine into Canada by boat. Cornish and the appellant were the two who accompanied them on the harbour cruise.
[8] Lambert subsequently agreed to advance $25,000 to Rodger to help finance the planned importation. Between October 1996 and July 1997, Lambert met with Rodger nearly a dozen times to check on what was happening with his “investment”.
[9] On July 3, 1997, Lambert had one such meeting with Rodger in Etobicoke. Rodger reported that there had been a problem with the planned shipment. He explained that the appellant and a few others had been taken into custody in Trinidad while preparing the appellant’s boat for departure and the Trinidad police had then searched the boat unsuccessfully for drugs. A few weeks earlier, just such a scene had been observed by another undercover RCMP officer who testified to this surveillance in Trinidad. He also testified that on examining the boat himself, he observed that the Trinidad authorities had drilled a hole in the concrete engine floor base through which he could see a large cavity. The officer testified that in his estimation, two bags each holding fifty kilograms of cocaine could be stored in the cavity.
[10] On July 24, 1997, Rodger arranged a meeting with Lambert in Mimico to allow the appellant and Cornish to explain what had happened to cause the delay. The appellant explained to Lambert that he had been arrested in Trinidad and felt someone had “ratted out on him”. He said that the Trinidad authorities had drilled out the boat and that although they found the compartment where “the stuff” was to be stored, they did not find anything. The appellant told Lambert that had the authorities waited just one more week they would have found the entire shipment.
[11] The appellant gave evidence and admitted making these statements to Lambert but said that he did so because Rodger had asked him to shortly before the meeting. He said Rodger told him about the $25,000 loan and was worried something would happen to him because he had promised Lambert a shipment of cocaine and had not delivered. The appellant testified that he provided his story to Lambert to save Rodger’s “rotten neck” and not to implicate himself in the conspiracy, in which he denied any involvement.
[12] The trial judge followed the three-step process laid out in Carter, supra. He first found that the Crown had established beyond a reasonable doubt the existence of a conspiracy to import cocaine involving Rodger, Cornish and others. He then found that on evidence directly admissible against the appellant, the Crown had proven on a balance of probabilities that the appellant was a member of that conspiracy. In the course of doing this, the trial judge found the appellant not to be credible and disbelieved his explanation for the statements he made to Lambert on July 24, 1997. Finally, the trial judge concluded that, on the totality of the evidence, including the hearsay statements of Rodger made in furtherance of the conspiracy, the Crown had proven the charge against the appellant beyond a reasonable doubt.
ANAYLSIS
[13] In this court the appellant concedes the first step in the Carter analysis. Rather, he focuses on the second step. He argues that the trial judge erred in finding on a balance of probabilities, on evidence directly admissible against the appellant, that he was a member of the conspiracy, and further erred in making a credibility assessment of the appellant at this stage.
[14] I disagree. There was ample evidence directly admissible against the appellant which linked him to the conspiracy involving Rodger and Cornish. He was observed readying his boat for sailing in Trinidad, playing the very role in the conspiracy described by Rodger. He admitted creating false passport documents, using the same fictitious guarantor as Cornish had in his own falsified application, which justifies the inference that he sought to travel without detection of his involvement. Similarly, his purported sale of his boat to himself under a fictitious name supports the inference that he was doing what he could to hide his role. And his presence on the boat cruise in Toronto fits with the conspiracy as described to Lambert.
[15] Although far from highly probative of his membership, the appellant’s observed contact with an individual in Holland could be said to be consistent with his involvement in the conspiracy (as the trial judge found), because Rodger told Lambert he was sending the appellant to Holland. While the particular conspiracy involved neither Holland nor this individual, the evidence that the appellant appeared to follow Rodger’s operational direction is at least consistent with his participation in the conspiracy arranged by Rodger.
[16] Even if the trial judge was wrong to rely on this as evidence to support his finding of the appellant’s participation, there was, as I have described, ample other evidence to support this conclusion. Most importantly, this included the appellant’s statements to Lambert on July 24, 1997. They explicitly implicate him in the conspiracy unless saved by his explanation for making them. This explanation thus required the trial judge to assess the appellant’s credibility at this point. For very cogent reasons, the trial judge found the appellant not credible and his explanation unbelievable. This finding is unassailable, given the appellant’s admitted falsification of passport documents, his lying to the police on being interrogated, and his farfetched explanation both for purporting to sell his boat to himself under another name and for giving the statement on July 24, 1997.
[17] Once the trial judge concluded that this explanation must be entirely rejected, the appellant’s statements provide overwhelming support for the conclusion that the appellant was a participant in the conspiracy. The appellant’s attack on this finding is unsustainable. Moreover, the trial judge’s assessment of the appellant’s credibility was necessary at the second step of the Carter analysis because of the evidence that had to be considered there. Having made that assessment, there was no need for the trial judge to repeat the exercise at the final step of the Carter analysis.
[18] Nor is there any validity to the appellant’s complaint that at the final step the trial judge did not sufficiently scrutinize the ultimate reliability of the evidence admissible against the appellant, particularly the hearsay evidence of Rodger. The appellant does not contest the threshold reliability of Rodger’s hearsay evidence. Nor did he do so at trial. Indeed there was nothing at trial to raise the kind of serious and real circumstantial concerns going to reliability that this court has said must be shown by an accused to justify a voir dire on the threshold reliability of the hearsay evidence of a co-conspirator. See R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.).
[19] Ultimately, the trial judge clearly found the evidence, including Rodger’s hearsay evidence, to be reliable and sufficient to prove the appellant’s guilt beyond a reasonable doubt. He reviewed that hearsay evidence in detail. As this court said in Chang, supra, the ultimate reliability of the hearsay evidence of a co-conspirator is safeguarded by the very steps of the Carter process. It is further safeguarded in this case by ample corroboration. For example, when Rodger told Lambert that the appellant’s boat was having engine trouble, the boat was seen out of the water, the appellant was seen working on it and the engine was seen apparently being repaired outside the boat. The appellant was observed travelling south and spending time there when Rodger said he would be. And the appellant’s own admission to Lambert on July 24, 1997 is clear evidence of the conspiracy as described by Rodger. The trial judge therefore did not err by accepting as ultimately reliable the hearsay evidence of the appellant’s co-conspirator and finding the appellant guilty beyond a reasonable doubt.
[20] Finally, in his factum the appellant raises a number of instances where it is said that the trial judge misconstrued the evidence. However, none were pressed in argument and there is no basis for such an assertion.
[21] In summary, the conviction appeal must be dismissed.
[22] The cross-appeal of sentence can be shortly dealt with.
[23] The Crown argues that the sentence was unfit given the appellant’s role in the conspiracy and the apparently large quantity of cocaine that was to be imported.
[24] I disagree. The trial judge carefully considered the appellant’s circumstances and the relevant sentencing principles. He was fully alive to the role played by the appellant and that he was not simply a courier but an active participant, although not a principal, in the conspiracy. Balancing these considerations with the mitigating factors arising from the appellant’s personal circumstances, the trial judge imposed a term of eight years in prison. Given the deference to be shown by this court to the sentencing judge I cannot find that sentence to be unfit.
[25] Leave to appeal sentence is granted but the sentence appeal is dismissed.
RELEASED: April 19, 2005 “STG”
“S.T. Goudge J.A.”
“I agree K. Feldman J.A.”
“I agree R. A. Blair J.A.”