Court of Appeal for Ontario

CITATION: R. v. Lucia, 2010 ONCA 533

DATE: 20100723

DOCKET: C49948

BEFORE: Doherty, Gillese and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristelle Francesca Lucia

Appellant

COUNSEL:

Gregory Lafontaine, for the appellant

Brian G. Puddington, for the respondent

Heard and released orally: July 21, 2010

On appeal from the conviction entered by Justice M. F. Woolcott of the Ontario Court of Justice, sitting without a jury, on September 26, 2008 and the sentence imposed by Justice Woolcott on March 31, 2009.

ENDORSEMENT

[1] The appellant appeals her convictions for possession of cocaine for the purpose of trafficking and possession of an imitation weapon for a purpose dangerous to the public peace. She was also convicted of dangerous driving but does not appeal that conviction. She applies for leave to appeal her custodial sentence of 36 months less three months credit given for time while on release awaiting trial and sentence while on strict conditions and four days pre-trial custody.

[2] On the appeal against conviction, the appellant submitted five grounds of appeal as follows:

(1) Her arrest was unlawful and is contrary to the Charter and the evidence obtained from a search of her car incidental to her arrest should have been excluded.

(2) The evidence of the two calls taken by the police on her cell phone which had been seized after her arrest should not have been admitted.

(3) The evidence of a police officer concerning the language of the drug culture used by the caller on the cell phone should not have been admitted.

(4) The trial judge erred in her assessment of the credibility of the appellant’s mother who was a witness called by the Crown.

(5) The verdict in respect of the weapon dangerous was unreasonable.

[3] The appellant argues that the police did not have reasonable and probable grounds to arrest her. The arrest was preceded by extensive police surveillance of the appellant based on information received from three confidential informants upon whom the trial judge found it reasonable for the police to place reliance. Information from the informants indicated that the appellant was engaged in the trafficking of crack cocaine from a Toyota automobile owned by her mother. The police also relied on prior knowledge of the appellant’s association with known drug users and a suspected drug dealer in the Kitchener area.

[4] On the night of her arrest, the appellant and her automobile were subject to several hours of police surveillance. During this time, the appellant was observed in short meetings in her car with two known crack users and two other males. The trial judge accepted the evidence of the arresting officer that the short meetings in her car had a strong indicia of drug deals having taken place. The trial judge concluded that the knowledge of the aforementioned information of the arresting officer gave reasonable and probable cause to arrest the appellant for possession of cocaine for the purpose of trafficking.

[5] We see no error in the trial judge’s conclusion. The arrest was lawful and the drugs, the pellet gun, the cell phone and other items found in the car were properly admitted in evidence. That said, the other grounds of appeal, even if they had merit, would not justify setting aside the convictions.

[6] We propose to deal only with the two grounds of appeal that were advanced in oral argument relating to the evidence of the telephone calls.

[7] After the arrest, the appellant’s cell phone rang on two occasions and was answered by one of the police officers. The caller on each of the calls was inquiring about the purchase of crack cocaine. In our view, the evidence was not tendered for the truth of the statements made by the caller on the telephone but as circumstantial evidence of the nature of the business carried on by the appellant. The evidence was therefore admissible.

[8] The officer, who testified as to the meaning of certain street terminology used by the caller on the cell phone, was an experienced officer in the drug investigation field. No objection was taken by defence counsel at trial to this evidence and there was no cross-examination by defence counsel of the police officer on this evidence. We see no basis to give effect to this ground of appeal.

[9] We turn to the sentence appeal. The appellant argues in this court that we should set aside the sentence of 36 months and substitute a conditional sentence of two years less a day which would permit the appellant to carry on her successful retail fashion business, which has prospered during the period of time she has been on bail both before trial and prior to the argument of the appeal. Counsel emphasizes that she has done well in other areas and has engaged in a number of community charitable initiatives in the Kitchener-Waterloo area. Counsel also raises concern for the appellant concerning a bipolar condition in respect of which there was evidence before the trial judge at the time of sentencing. However, the trial judge concluded the evidence in support of this diagnosis was questionable.

[10] We see no basis to interfere with the custodial sentence. The evidence established that the appellant was involved for some time in the trafficking of crack cocaine. It is clear that this was a purely commercial enterprise. The offences of which she has been convicted are extremely serious – not only the cocaine offence but also the offence for dangerous driving and the offence for possession of a weapon dangerous. The sentence in this case properly reflects the need for denunciation and deterrence.

[11] In the result, the appeal against conviction is dismissed and leave to appeal sentence is granted but the appeal from sentence is dismissed.

“Doherty J.A.”

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”