Court of Appeal for Ontario

Citation: R. v. Nartey, 2010 ONCA 729 Date: 2010-11-02 Docket: C50839

Before: Rosenberg, Cronk and Epstein JJ.A.

Between: Her Majesty the Queen (Respondent) and Jesse Nartey (Appellant)

Counsel: Stephen F. Gehl, for the appellant Carol Shirtliff-Hinds, for the respondent

Heard and released orally: October 21, 2010

On appeal from the conviction entered by Justice D.G. Carr of the Ontario Court of Justice, dated March 9, 2009.

ENDORSEMENT

[1] The appellant attacks his convictions for trafficking and possession of the proceeds of crime on the ground that the trial judge misapprehended the evidence on which he relied to ground the convictions and, as a result, the verdicts are unreasonable. We disagree.

[2] As properly acknowledged by the appellant’s counsel, an exacting standard of review applies to the determination of whether a misapprehension of evidence argument has merit. Under this standard, it is incumbent on the appellant to demonstrate that the evidential misapprehension at issue is material rather than peripheral to the reasoning of the trial judge. In addition, the identified error must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction.

[3] This was a circumstantial case involving a straightforward, hand-to-hand drug deal. The evidence relied on by the trial judge to establish the appellant’s culpability as a party to the transaction included evidence that: (1) the appellant was the driver of the car used to arrive at the location of the drug deal and was present in or near the car when the transaction occurred; (2) on arrival of the undercover police officer at the scene, the appellant queried the identity of the officer and was assured by his friend and associate that the officer was “good”; (3) importantly, within minutes of the drug deal, a police officer observed what he believed to be the funds used by the police to make the drug buy being handed to the appellant. Shortly thereafter, the same funds – which had earlier been photocopied by the police – were discovered on the appellant’s person following his arrest.

[4] This evidence, by itself, was more than sufficient to ground these convictions. The reasons of the trial judge reflect no misapprehension of this evidence.

[5] The appeal, therefore, is dismissed.

“M. Rosenberg J.A.” “E.A. Cronk J.A.” “Gloria Epstein J.A.”