Court File and Parties

CITATION: R. v. Jean, 2010 ONCA 885

DATE: 20101221

DOCKET: C51875-C51206

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Malcolm Jean (a.k.a. Frantzy Jean)

Appellant

C51206

Her Majesty the Queen

Respondent

and

Pistis Nkosi Kapend

Appellant

Counsel: Jonathan Dawe, for the appellant, Jean Bruce F. Simpson, for the appellant, Kapend Geoffrey Roy, for the respondent

Heard and released orally: December 16, 2010

On appeal from the convictions entered by Justice C.A. Kehoe of the Ontario Court of Justice on June 8, 2009 and the sentences entered on November 2, 2009.

ENDORSEMENT

[1] The Crown acknowledges that on the trial judge’s findings, the convictions can only be supported on the basis that the appellant, Jean, entered the vehicle to purchase drugs from the appellant, Kapend, and his friend, Blackwood, the co-owner of the vehicle. Blackwood was convicted at trial, but he is not an appellant. His appeal from conviction was dismissed as abandoned earlier this year.

[2] The Crown further concedes that on the trial judge’s findings, the convictions can only be supported on the basis that the transaction was completed and Jean was in possession of the entirety of the drugs hidden in the container (10.5 grams) when the police arrived. On the trial judge’s findings, Kapend and Blackwood were in possession for the purpose of trafficking when they sold the entirety of the drugs to Jean and he was in possession for the purpose of reselling some or all of those drugs at some later time. There was evidence that 10.5 grams of cocaine was an amount that was consistent with trafficking and not mere possession.

[3] The Crown acknowledges that the theory it is now required to defend based on the trial judge’s findings is inconsistent with the theory of the Crown at trial. At trial, the Crown contended that Jean, Kapend and Blackwood were joint co-venturers in a trafficking operation involving the entire amount of the drugs found in the container.

[4] In our view, the evidence cannot reasonably support the inference that Jean had knowledge of the cocaine secreted in the container that was found on the backseat in close proximity to Jean. There is no evidence that Jean ever handled the container. There was nothing about the appearance of the container that would arouse any suspicion. It was a product that would normally be found in a motor vehicle. Nor is there anything in the other circumstances relied on by the Crown that would raise the probative value of the evidence beyond the level of suspicion. In our view, a trier of fact could not reasonably find that Jean knew of the cocaine secreted in the container. Absent proof of knowledge, the conviction on the charge of possession of cocaine for the purpose of trafficking cannot stand.

[5] The Crown concedes that if the finding that Jean was in possession of the entire amount of the cocaine having just purchased it from Kapend and Blackwood cannot stand, then the conviction of Kapend on the basis that he was one of the sellers in a joint venture with Blackwood also cannot stand. We agree with that concession. On this record, there is no evidence that Jean had any knowledge that the container was in the backseat, much less that cocaine was hidden in the container. While the circumstances are suspicious, suspicion is not enough. A reasonable trier of fact could not, in our view, conclude that Kapend knew that there was cocaine secreted in the container found in the backseat of the vehicle. His conviction cannot stand.

[6] In the result, both convictions are quashed and acquittals are entered.

“Doherty J.A.”

“J. Simmons J.A.”

“E.E. Gillese J.A.”