CITATION: R. v. Bodenstein, 2011 ONCA 737
DATE: 20111124
DOCKET: C53989
COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mark Bodenstein
Appellant
Vincenzo Rondinelli, duty counsel, for the appellant
Croft Michaelson, for the respondent
Heard and released orally: November 15, 2011
On appeal from the conviction entered by Justice I.V.B. Nordheimer of the Superior Court of Justice on July 13, 2010.
ENDORSEMENT
[1] The appellant appeals his conviction for trafficking in cocaine in association with a criminal organization. He argues that the transaction in question was a one-time occurrence and that it had nothing to do with his and the other participant’s membership in the Hells Angels.
[2] The trial judge addressed this issue thoroughly in his reasons. The following facts were factors that led the trial judge to conclude that the transaction was “in association with” the Hells Angels:
The appellant and the police agent were both full patch members of the Hells Angels;
They met on a social cruise function held by the Hells Angels;
The police agent obtained the appellant’s pager number through the Toronto Clubhouse; and
The wiretaps indicated that there were to be further transactions.
[3] The trial judge’s legal reasoning on this issue was subsequently referred to with approval by this court in R. v. Drecic, 2011 ONCA 118, at para. 3. This ground of appeal fails.
[4] The appellant also submits that the trial judge erred in admitting the expert testimony of Sergeant Davis regarding the Hells Angels. Again, we do not agree.
[5] It is clear from the trial judge’s reasons that he did not make improper use of the expert’s opinion. In particular, he stated at p. 1637 of the Reasons in the Appeal Book:
“The defence takes issue with Detective Sergeant Davis as an expert and with his opinion. On the first point, I note that there was no direct attack against Detective Sergeant Davis’ qualifications. In any event, having reviewed his curriculum vitae, I am satisfied that he is properly qualified as an expert in the activities, organization and objectives of motorcycle gangs in general and the Hells Angels in particular. On the second point, I am satisfied that Detective Sergeant Davis’ opinion meets all of the requirements set out in R. v. Mohan, [1994] 2 S.C.R. 9. In particular, his opinion is relevant and it is necessary to assist me as the trier of fact in determining the issue to which his opinion is directed.”
[6] Even if Sergeant Davis’ opinion should not have included his conclusion on the ultimate issue of criminal organization, there is no harm in this case because the trial judge found that the totality of the evidence heard overwhelmingly demonstrated that the Hells Angels motorcycle club is a criminal organization.
[7] The appellant also submits that he was acting only as an agent of the police agent. This argument, however, is belied by the plea of guilty to trafficking in cocaine.
[8] Although there was no sentence appeal, the appellant submits that he should have been given more credit for pre-trial custody. This issue was fully canvassed and considered by the trial judge and there is no basis to interfere with his decision on the issue.
[9] In the result, the appeal is dismissed.
Signed: “K. Feldman J.A.”
“Janet Simmons J.A.”
“David Watt J.A.”