Court of Appeal for Ontario
CITATION: R. v. Dixon, 2014 ONCA 835
DATE: 2014-11-25
DOCKET: C56016
BEFORE: Feldman, Epstein and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Scott Dixon
Appellant
COUNSEL:
Vincenzo Rondinelli, for the appellant
Tanit Gilliam, for the respondent
HEARD: October 7, 2014
On appeal from the convictions entered on June 18, 2012 by Justice Donald J. Taliano of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant was charged with nine counts of drug-related offences. He was acquitted of three counts and convicted of six. He appeals four of the six convictions: conspiracy to traffic, trafficking, and two counts of possession for the purpose of trafficking cocaine. For the reasons that follow, we dismiss the appeal.
Conspiracy (Count 6)
[2] The appellant was convicted of conspiring with Antonio Gallo to traffic cocaine. The Crown relied on a series of intercepted communications to establish an agreement to sell cocaine. The trial judge found that the interceptions proved that Gallo and the appellant had a working relationship in the drug trade and that they had agreed to work together to sell cocaine.
[3] The appellant submits that the trial judge erred in finding an agreement to sell cocaine. At its highest, the appellant argues, the interceptions show an “attempt” to agree to sell cocaine, not an agreement to sell. He points to the following exchange:
Appellant: …okay well give me a call tomorrow and I’m gonna go down and see my other friend so maybe between all of us we can…
Gallo: …you give me a call
Appellant: I wonder if we sell the nine…
[4] The appellant submits that words such as “I wonder” and “call tomorrow” indicate that no agreement had been reached.
[5] This excerpt is a short portion of 46 pages of intercepted communications between the appellant and Gallo. Read in their entirety, it is clear that they were in the business of selling cocaine, and had agreed to acquire, share and sell cocaine. They discussed supply connections in Colombia, movement through the airport, a recent police “bust”, prices and their customers. It was open to the trial judge to conclude that there was an agreement to traffic.
Trafficking (Count 7)
[6] The trial judge found the appellant guilty of trafficking based on ten separate transactions involving individuals who, in various ways, were involved in the drug trade with the appellant. The trial judge admitted the statements of these individuals based on the co-conspirators exception to the hearsay rule. He said that the statements were admissible “on the basis of R. v. Carter 1982 CanLII 35.” The statements were used in evidence against the appellant.
[7] The appellant submits that the trial judge erred in law in admitting the statements without providing an analysis as to how the declarants’ statements came within the exception to the hearsay rule.
[8] The trial judge is presumed to know the law. He was alive to the Carter requirements for he had, earlier in the judgment, referred to the principle. There was evidence on which the trial judge could conclude that the declarants were members of a conspiracy, along with the appellant, and the statements could be used against him.
Possession for the Purpose (Count 8)
[9] The trial judge found that the appellant took delivery of a kilogram of cocaine for the purpose of selling it. The appellant argues that, because the cocaine that was the subject of this count was never seized, he cannot be convicted of possession. The substance must, it is submitted, be tested and proved to be cocaine.
[10] Here there was extensive circumstantial evidence upon which the trial judge could conclude the substance was, in fact, cocaine. The appellant makes statements in the intercepted communications including:
• The stuff is good…a bit chalky
• You know what you cook
• I know it’s good
• Sniffers love it
• Smokers love it
[11] The appellant was in the drug business. He said he had a substance with the above attributes. There was evidence upon which the trial judge could conclude it was in fact cocaine.
Possession for the Purpose (Count 9)
[12] An apartment occupied by the appellant alone was searched pursuant to a warrant. The police seized drug paraphernalia including 14.4 grams of cocaine, a digital scale, debt lists and a money counter. The trial judge found as fact that the appellant was the sole occupant in control of the apartment and possessed the cocaine for the purpose of trafficking.
[13] The appellant submits that in doing so the trial judge “took judicial notice” that the items seized were for use in the drug trade. This, it is submitted, could not be done in the absence of expert testimony.
[14] In the context of the evidence as a whole, including the evidence of officers from the drug squad, the trial judge drew the common sense inference that the seized items were only consistent with drug trafficking. It was open to him to make that finding.
[15] The appeal from all of these convictions is therefore dismissed.
“K. Feldman J.A.”
“Gloria Epstein J.A.”
“M.L. Benotto J.A.”