R. v. Speak, 2007 ONCA 317

CITATION: R. v. Speak, 2007 ONCA 317

DATE: 20070427

DOCKET: C44822

COURT OF APPEAL FOR ONTARIO

SHARPE, BLAIR and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

TIMOTHY SPEAK

Appellant

Michael Dineen for the appellant

Moiz Rahman for the Crown

HEARD: April 26, 2007

On appeal from the conviction imposed by Justice John F. McCartney of the Superior Court of Justice dated August 9, 2005.

APPEAL BOOK ENDORSEMENT

[1] We agree that the trial judge misapprehended the evidence as to the date on which Dubois gave the key to the appellant’s apartment building to the police. However, we do not agree that this was a misapprehension on a material fact that could have affected the trial judge’s assessment of this as corroborating Dubois’ evidence. The trial record does not support the speculative suggestion now advanced that Dubois obtained the key to bolster his deal with the police.

[2] The trial judge properly identified the serious danger posed by Dubois as a witness, but also identified several items of evidence corroborating Dubois’ evidence. In addition to the key, there was evidence of phone calls between Dubois, Siciliano and the appellant which corroborated Dubois’ evidence as to the appellant. Accordingly, we reject the submission that the trial judge erred in his approach to Dubois’ evidence.

[3] Nor do we accept the argument that the trial judge failed to consider whether the appellant had the mens rea necessary for a conviction on the criminal organization counts. It followed from the trial judge’s findings on the conspiracy counts that the appellant knew he was acting in association with a group of three or more persons, who were engaged in a long standing scheme of trafficking in cocaine for their mutual benefit and gain. In the circumstance of this case, this was sufficient to comply with the requirement for conviction under s. 467.12.

[4] On the conviction for possession of the punch dagger, the appellant did not contest at trial that the weapon was found in his apartment. He raised no argument at trial that the inference could not be drawn that he was in possession and control and he effectively conceded this count if the trial judge found it to be a prohibited weapon. Accordingly, we would not give effect to this ground.

[5] The respondent concedes that counts 2, 8 and 10 should be stayed on the Keinapple principle. We would alter the appeal to that extent but otherwise, the appeal is dismissed.