Court of Appeal for Ontario

CITATION: R. v. Cardwell, 2010 ONCA 445

DATE: 20100615

DOCKET: C50969

Moldaver, Gillese and LaForme JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Chauncey Cardwell

Appellant

In Writing

Chauncey Cardwell, appellant in writing

Morris Pistyner, for the respondent in writing

On appeal from conviction by Justice T. David Little of the Superior Court of Justice for the possession of cocaine for the purpose of trafficking, dated June 12, 2009, and from sentence, dated June 12, 2009.

Reasons for Decision

By The Court:

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking and sentenced to seven months imprisonment (in addition to one month credited for pre-trial custody). He appeals in writing from conviction and sentence. Although given the opportunity to do so, the appellant has filed no written argument.

[2] The appeal from conviction is essentially fact driven. The appellant denied being in possession of the cocaine that the police claim he disposed of as he was running across the street to a waiting cab. According to the appellant, after he and his co-accused entered the cab, his co-accused, who was seated in the back seat, opened the rear door of the cab and threw the cocaine onto the street. The appellant, who was in the front seat, opened the front passenger door and threw a small amount of marijuana underneath the cab. He testified that the police had to move the cab to retrieve it. He denied having anything to do with the cocaine the police found on the street some distance from the cab.

[3] The appellant’s version of the events conflicted with the evidence of the police. Constable Parker testified that the appellant threw something onto the street as the appellant was running towards a waiting cab. Constable Parker retrieved the item and it turned out to be a bag containing 29 grams of cocaine. Upon searching the appellant, Constable Parker located a small bag containing two grams of marijuana. He denied finding the marijuana under the cab. He was asked no questions in cross-examination about having to move the cab to retrieve the marijuana – an event that was mentioned for the first time by the appellant in his testimony.

[4] Constable Parker’s partner, Senior Constable Anglin, did not see the appellant throw the bag that contained the cocaine. He did, however, confirm his partner’s evidence as to the location on the street where the bag was found.

[5] The trial judge accepted the evidence of the police officers and rejected the appellant’s testimony. In accepting the evidence of Constable Parker and Senior Constable Anglin, the trial judge was alive to various discrepancies in their evidence but found the discrepancies to be immaterial. The fact that the officers had to refer to their reports to refresh their memory was, in his view, of little significance and “likely due to the passage of time.” The trial judge accepted Constable Parker’s evidence that the marijuana was not found under the cab as the appellant claimed but instead, was found on his person. In this regard, he noted that neither Constable Parker nor his partner was cross-examined on the need to move the cab to retrieve it “because it did not happen.”

[6] The trial judge rejected the appellant’s testimony. In doing so, he pointed out that the appellant changed his testimony, claiming initially that he had seen his co-accused throw the cocaine out of the cab and then stating that this was an assumption on his part. The trial judge characterized the appellant’s evidence as “an after-the-fact fabrication.” In this regard, he no doubt took into account the appellant’s failure to cross-examine the officers about the need to move the cab to retrieve the marijuana – an event which, as noted, was mentioned for the first time during the appellant’s testimony.

[7] In our view, the trial judge’s reasons disclose no error. His credibility findings are supported by the evidence and we see no basis for interfering with them.

[8] Accordingly, the appeal from conviction is dismissed.

[9] The appeal from sentence is also dismissed. The sentence has been served and to that extent, the appeal is moot. In any event, the sentence was fit in the circumstances.

Signed: “M. J. Moldaver J.A.”

“H. S. LaForme J.A.”

“ E.E. Gillese J.A.”

RELEASED: “MJM: JUNE 15, 2010