COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sansalone, 2013 ONCA 226

DATE: 20130410

DOCKET: C54341

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincenzo Sansalone

Appellant

Gregory Lafontaine, for the appellant

Nicholas E. Devlin and Jeanette Gevikoglu, for the respondent

Heard: March 27, 2013

On appeal from the conviction entered on July 22, 2011 by Justice R. Clark of the Superior Court of Justice, sitting without a jury, and the sentence imposed by Justice Clark on September 15, 2011.

By the Court:

[1] The appellant was convicted of conspiracy to traffic in 4-Hydroxybutanoic acid (GHB). He was sentenced to five years’ imprisonment, after one year’s credit for pre-trial custody and stringent conditions of pre-trial release. He appeals from his conviction and, if leave be granted, from the sentence imposed.

A. Conviction Appeal

[2] In his factum, the appellant advanced three grounds in support of his conviction appeal. He argued that: (1) the trial judge erred in his assessment of the credibility of the Crown’s main witness, David Atwell, a police agent; (2) the trial judge further erred by finding that the certiorari judgment of this court in R. v. Sansalone, 2010 ONCA 281, had binding effect at this trial; and (3) the verdict is unreasonable. We reject these arguments.

(1) Trial Judge’s Credibility Assessment

[3] During oral argument, the appellant’s multi-facetted attack on the trial judge’s assessment of Atwell’s credibility narrowed considerably. In the end, the appellant advanced only two complaints. He contended, first, that the trial judge erred in his evaluation of Atwell’s credibility by relying on the absence of any demonstrated inconsistencies between Atwell’s testimony at the appellant’s trial and his evidence at the separate trial of the majority of the conspirators in the conspiracy to traffic GHB (approximately 8 accused persons).

[4] We disagree.

[5] The trial judge provided clear and detailed reasons for his conclusion that Atwell’s testimony at the appellant’s trial regarding the appellant’s involvement in the conspiracy was both credible and reliable. He specifically addressed the shortcomings and frailties of Atwell’s evidence identified by the appellant’s trial counsel and counsel for the appellant’s co-accused, including Atwell’s status as a witness with a criminal history and his self-interest as a paid police agent. The trial judge also repeatedly directed himself that Atwell’s evidence should be approached with caution. Further, he explicitly accepted the submission of the appellant’s co-accused that “[t]he fact that convictions have resulted from [Atwell’s] testimony in other cases cannot be used as corroborative evidence.”

[6] The trial judge observed, correctly, that much of Atwell’s testimony was confirmed by surreptitious recordings of the conversations and meetings to which he attested and, in respect particularly of the appellant, the reliability of his testimony was confirmed by Atwell’s notes made shortly after the events in question and delivered to the police. The trial judge found as a fact that the two pertinent meetings took place and that the appellant was present at and participated in both, in the manner recounted by Atwell. Having considered the various weaknesses in Atwell’s testimony emphasized by defence counsel, the trial judge concluded that Atwell was “careful when it came to observing and recording the events” about which he testified at the appellant’s trial.

[7] The trial judge’s lengthy reasons confirm that his mention of the lack of any demonstrated inconsistencies between Atwell’s testimony at the appellant’s trial and his evidence at the trial of the other conspirators was but one of numerous factors considered by him in his comprehensive assessment of Atwell’s credibility. His impugned remarks must be viewed in this context. Fairly read, the comments at issue were simply an observation that, contrary to the defence submissions, there were few inconsistencies in Atwell’s testimony at this trial. The record amply supports this conclusion.

[8] The appellant’s second complaint about the trial judge’s credibility assessment concerns his reference to the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), [1894] 6 R. 67 H.L. (Eng.) as an additional consideration relevant to the evaluation of Atwell’s trial testimony.

[9] This complaint, in our view, must fail. Even if the trial judge’s invocation of the Browne v. Dunn principle was inappropriate on the facts of this case, his reasons indicate that he nonetheless cautioned himself that there was cause “to be wary” of Atwell’s evidence, including his status as a paid police agent. Thus, notwithstanding any defence failure to comply with Browne v. Dunn during Atwell’s cross-examination, the trial judge did not exclude evidence or make any determination based on this failure. On the contrary, he proceeded to evaluate Atwell’s evidence in the sceptical and cautious manner urged by the defence.

(2) The Verdict is Reasonable

[10] We also reject the appellant’s remaining grounds of appeal from conviction. As his counsel readily acknowledged, the appellant’s assertion that the verdict is unreasonable was advanced merely to protect his future right of appeal on this issue. The argument was neither developed nor vigorously asserted before this court.

(3) Binding Nature of R. v. Sansalone

[11] Finally, the appellant’s challenge to the trial judge’s reliance on this court’s certiorari-related decision in R. v. Sansalone is misconceived. That decision involved an appeal to this court by the appellant from the dismissal of his application to quash his committal for trial. In dismissing the appeal, this court was concerned with a question of statutory interpretation, namely, whether the definitions of “sell” and “traffic” under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 were sufficiently broad to capture the activity of facilitating the payment for drugs after delivery, so as to establish participation in a “conspiracy” to traffic drugs for the purpose of ss. 465(1)(c) and 467.12(1) of the Criminal Code, R.S.C. 1985, c. C-46. This court’s ruling on this issue was the determination of a question of law. Accordingly, as the trial judge recognized, this court’s decision was clearly binding on the trial court as a matter of legal principle.

[12] Nothing in this court’s previous decision in R. v. Sansalone determined whether the appellant, in fact, engaged in the activities in question so as to render him a member of the alleged conspiracy to traffic GHB. That was a decision for the trial judge.

[13] And that was precisely the inquiry that the trial judge carried out. Having done so, he was satisfied, on the criminal standard of proof, that the appellant was a member of the conspiracy charged. Nothing in the trial judge’s reasons suggests that he misapprehended the import of this court’s decision in R. v. Sansalone or that he failed to conduct the analysis of the evidence that was his task alone to undertake.

[14] For the reasons given, the conviction appeal is dismissed.

B. Sentence Appeal

[15] The appellant raises one issue on his sentence appeal. He submits that the trial judge erred by treating as an aggravating factor on sentencing the fact that GHB “is commonly used to put into the drinks of unsuspecting third parties, mainly women, so as to render them unable to effectively resist others who seek to take sexual advantage of them”. This statement, the appellant says, finds no support in the evidentiary record at this trial.

[16] We also reject this submission.

[17] The trial judge appreciated, as acknowledged by the Crown at trial, that GHB is used for various purposes. His sentencing reasons contain a discussion of the nature of GHB, a drug that appellate courts have recognized as “a notorious date-rape drug”: see for example, R. v. Strickland, 2012 BCCA 276, at para. 14. The appellant does not dispute this characterization of the nature of GHB.

[18] It is implicit in the unchallenged identification of GHB as “a notorious date-rape drug” that one of its uses is for the criminal purpose of facilitating non-consensual sex with third-party victims, including women. In his reasons, the trial judge simply took account of this potential wrongful use of the drug.

[19] We see no error by the trial judge. He was alert to the fact that the appellant was not the actual vendor of the drug, who might be said to “know [that the drug] is going to be administered to an unsuspecting third party”. Nonetheless, he held that the appellant must “accept responsibility for the nature of the transaction to which ... he willingly lent his assistance”.

[20] We agree. In facilitating payment for the GHB, the appellant was a willing participant in a conspiracy to utilize the GHB in whatever manner might follow, including its potential use as a date-rape drug.

[21] It must also be emphasized that the quantity of GHB seized in this case was enormous: approximately 600 litres. Indeed, this court was informed that, at the time of trial, this GHB seizure was the largest of its kind in Canadian history. The sheer volume of GHB seized, coupled with its acknowledged potential for this particular illegal use, were proper and necessary considerations on sentencing.

[22] In our view, the trial judge made no error in his sentencing analysis and the sentence imposed is entirely fit.

[23] Accordingly, we grant leave to appeal sentence, but dismiss the sentence appeal.

Released:

“APR 10 2013” “Janet Simmons J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”