COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louro, 2013 ONCA 770

DATE: 20131219

DOCKET: C56829

Doherty, MacPherson and Tulloch JJ.A.

Her Majesty the Queen

Respondent

and

Valdemar Louro

Appellant

Lambert K. Kwok and Faisal Mirza, for the appellant

Rick Visca, for the respondent

Heard and released orally: December 12, 2013

On appeal from the conviction entered by Justice McLeod of the Ontario Court of Justice, dated December 19, 2012.

ENDORSEMENT

[1] This is an appeal from conviction on charges of trafficking in cocaine and possession of the proceeds of that trafficking. The Crown alleged that the appellant was the “back end” supplier of cocaine to a man named Williamson. Williamson dealt directly with the undercover officer. Williamson testified at the appellant’s trial, but professed to have no recollection of the relevant events. The undercover officer also gave detailed evidence of the transaction. The appellant chose not to testify.

[2] There are three grounds of appeal.

(1) Issue #1 – The trial judge misapprehended the evidence in finding as a fact that Williamson did not have the cocaine in his possession before meeting with the appellant.

[3] The trial judge thoroughly reviewed the evidence. On the evidence he accepted, particularly the evidence of the undercover officer as confirmed in many respects by the surveillance, the trial judge concluded that there was no air of reality to the suggestion that Williamson had the cocaine in his possession before meeting with the appellant and that his interactions with the appellant prior to delivering the cocaine to the undercover officer were all part of some “ruse”.

[4] It was open to the trial judge to come to that conclusion on this evidence. There is no misstatement of the evidence in the trial judge’s reasons. Nor, in our view, is there anything to support the submission that he failed to consider material evidence. The trial judge’s thorough review of the evidence suggests the contrary.

(2) Issue #2 – Was there evidence to support the conviction of the appellant on the charge of possession of the proceeds of crime?

[5] The trial judge found that the appellant and Williamson were engaged in a conspiracy to traffic in cocaine. The trial judge found that Williamson sold cocaine to the undercover officer in furtherance of that agreement and received cash from the undercover officer. It follows from those findings that the appellant was, as a matter of law, in possession of the proceeds of the sale just as much as Williamson was in possession. The conviction on this count flowed directly from the conviction on the count of trafficking.

[6] We note that at trial no separate submissions were made on this count and the trial judge did not give separate consideration to this count. The manner in which counsel and the trial judge proceeded is consistent with the view that the parties accepted that liability on this count depended on the finding on the trafficking count.

(3) Issue #3 – Did the trial judge fail to consider exculpatory evidence at stage one of the “Carter” analysis?

[7] This argument is essentially the same as the first argument advanced by the appellant. In our view, there is no basis in this record to conclude that the trial judge did not consider all of the evidence relevant to the question of whether the alleged conspiracy existed.

[8] The appeal is dismissed.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”