CITATION: R. v. Silva, 2009 ONCA 542

DATE: 20090703

DOCKET: C47672

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Silva

Appellant

Craig F. McLean, for the appellant

John North, for the respondent

Heard and released orally: June 24, 2009

On appeal from the conviction entered by Justice J.F. Kennedy of the Superior Court of Justice on January 12, 2007 and from the sentence imposed by Justice Kennedy on August 27, 2007.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of trafficking cocaine and was sentenced to three years’ imprisonment. A forfeiture order was also made in respect of the appellant’s vehicle. The appellant appeals against his conviction and seeks leave to appeal his sentence in relation to the forfeiture order.

[2] In our view, both the conviction and the sentence appeal must be dismissed for three reasons.

[3] First, in connection with the conviction appeal, the appellant challenges the admissibility of certain statements made by his co-accused, Andy Caron. In our view, the challenged statements by Caron were properly admissible against the appellant as declarations made in furtherance of the conspiracy that the trial judge found existed. When the statements are examined in the context of the prior dealings between Caron and the undercover police officer, the record supports the inference that the statements were intended to explain to the undercover police officer – as a prospective purchaser in a large drug transaction – why the delivery arrangements for the drugs differed from those that applied in the past. In this way, Caron sought to ensure that he did not lose his customer. Viewed in this light, the impugned statements were made for the purpose of advancing the objectives of the conspiracy: see R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 47.

[4] Second, we do not accept the appellant’s contention that the trial judge erred in his use of Caron’s post-arrest videotaped statement. On our reading of his reasons, the trial judge’s use of this statement was confined to the assessment of Caron’s credibility. It was open to the trial judge to use this statement for this purpose.

[5] Third, in oral argument before this court, the appellant did not press the other grounds of appeal outlined in his factum in respect of the conviction appeal. Nor did he pursue his sentence appeal relating to the forfeiture order.

[6] For the reasons given, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.