Court File and Parties

CITATION: R. v. Liban, 2010 ONCA 329

DATE: 20100506

DOCKET: C46493

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Mefithu Liban

Appellant

Counsel: Lydia Riva, for the appellant Surinder Aujla, for the respondent

Heard and released orally: May 3, 2010

On appeal from conviction by Justice Gloria Epstein of the Superior Court of Justice dated November 16, 2006.

ENDORSEMENT

[1] The appellant was convicted of trafficking in crack cocaine in a hand-to-hand transaction with an undercover officer. The appellant was arrested within 60 seconds of the take-down signal being given by the officer to the rest of the surveillance team. When the appellant was arrested, he was searched but he did not have on him the marked $20 bill the officer claimed that he used to pay for the crack, nor did he have the baggy with the chunk of crack that the officer said the appellant had and from which he had broken off the piece that he sold to the undercover officer. The arresting officers then searched the area but they still did not find the buy money or the drugs.

[2] The appellant had been under observation by one or more of the officers for all or virtually all of the time both before but most importantly after the alleged transaction. None of the officers saw him discard anything.

[3] There was an abundance of evidence that the appellant was known to the officers and recognized by them. The trial judge was satisfied on the issue of identity. In that context, she considered the anomaly of the missing money and drugs in the baggy, but because of the fact that the officers knew the appellant, she did not find that the missing items raised a reasonable doubt on the identity issue.

[4] However, the trial judge did not address the question whether it had been proved beyond a reasonable doubt that the transaction actually occurred. None of the officers observed the hand-to-hand transaction and specifically Officer McGuinness, who was in a position to see it as he observed the undercover officer and the appellant in the alleyway, did not observe any hand-to-hand movement. Most significantly, however, the failure to find the buy money and the drugs on the appellant or after a search, together with the lack of opportunity for the appellant to dispose of these items, is unanswered evidence that speaks against the transaction having occurred.

[5] We agree with the appellant that on this record, the verdict is an unreasonable one and must be set aside. The appeal is allowed and an acquittal is entered.

Signed: "K. Feldman J.A."

"Paul Rouleau J.A."

"David Watt J.A."