COURT OF APPEAL FOR ONTARIO

CITATION: R. v. An, 2015 ONCA 799

DATE: 20151120

DOCKET: C58774 & C58307

MacPherson, Tulloch and Pardu JJ.A.

C58774

BETWEEN

Her Majesty the Queen

Respondent

and

Richard An

Appellant

C58307

AND BETWEEN

Her Majesty the Queen

Respondent

and

Justin Li-Tin-Po

Appellant

Patrick Metzler, for the appellant, Richard An

Patrick Ducharme and Christopher Tarach, for the appellant, Justin Li-Tin-Po

Ian Bell and Brendan Gluckman, for the respondent

Heard: November 17, 2015

On appeal from the conviction entered by Justice Michael Block of the Ontario Court of Justice on December 6, 2013.

ENDORSEMENT

[1] The appellants, Richard An and Justin Li-Tin-Po, appeal their convictions for trafficking cocaine and possessing the proceeds of crime. They were convicted following a three-day trial. They argue on appeal that the convictions are unreasonable and cannot be supported by the evidence.

[2] The appellants were arrested as part of a police investigation called Project Daring. As part of this project, the police targeted and arrested another man, Rory Smith, on June 16, 2010. Approximately one kilogram of cocaine was found on his person and in his home. Based on intercepted text messages, phone calls, and police surveillance, the police believed he was supplied with the cocaine on June 15, 2010, and was to pay the balance owed to his supplier on June 17, 2010.

[3] After Smith’s arrest, police used his cell phone to communicate with the suspected supplier. They arranged to meet on the evening of June 17 on Melissa Crescent, in Whitby, where the drug transaction occurred two days prior.

[4] On June 17, the appellants were arrested in a car on Melissa Crescent. The appellant An was driving and the appellant Li-Tin-Po was in the passenger seat. Between their seats was the main cell phone used to communicate with Smith. This number was saved as “Jus” in Smith’s cell phone. Also in the car was a second cell phone used to communicate with Smith around the time of the June 15 meeting. This number was identified in Smith’s cell phone as “J Boy”. There were four other cell phones in the car with the appellants. In the back seat, the police found $10,050 in a gym bag.

[5] The trial judge found, based on the circumstantial evidence, that the two defendants supplied cocaine to Smith on June 15 through a courier. Smith was observed carrying a blue and white bag after that meeting. The trial judge found it “highly likely” that this bag was the same bag found containing cocaine in Smith’s garage. This meeting took place on Melissa Crescent. The “Jus” and “J Boy” cell phones found in the appellants’ possession were used for the exchange on June 15 and also to organize the meeting for payment on June 17. He determined that there was no other rational explanation available on the evidence before him. Further, the circumstances surrounding the gym bag left no potential explanation other than that the sum was the proceeds of crime.

[6] A verdict is unreasonable or cannot be supported by the evidence when the verdict is one that a properly instructed jury acting judicially could not reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2001] 1 S.C.R. 381, at para. 36. This is equally applicable to the judgment of a judge sitting without a jury: Biniaris, at para. 37.

[7] In our view, the finding of guilt was reasonable.

[8] The evidence considered as a whole supports the conclusion that the drug transaction took place on June 15 at Melissa Crescent. The bag containing cocaine and found in Smith’s garage on June 16 is likely the same blue and white bag that the police observed Smith with when he returned home from the Melissa Crescent meeting.

[9] The timing and content of Smith’s text messages leave no doubt as to the nature of this meeting. Only the Melissa Crescent meeting is consistent with the text messages between Smith and “J Boy”. Expert evidence led by the Crown also established that “Jus” and Smith were discussing a cocaine transaction in text messages from June 13 to June 15.

[10] The text messages show that “Jus” sent his courier to bring Smith a “whole” – one kilogram of cocaine – on the evening of June 15. Smith was arrested with approximately one kilogram of cocaine.

[11] Shortly after the Melissa Crescent meeting, “Jus” inquired how much money Smith had sent. Smith indicated that he had paid the courier $14,000 and would pay the remainder on Thursday. This is strong evidence supporting the finding that the June 15 Melissa Crescent meeting was a drug transaction.

[12] On June 17, a Thursday, “Jus” initiated a conversation with Smith, asking him: “Time?” The police, posing as Smith, proposed the same spot. The text messages indicate that “Jus” thought this may mean the “Mall”. The police then specify “Melissa”. When “Jus” questions this, the police specify “ya where I met your boy.” There is then agreement on Melissa. Though “Jus” is initially confused and perhaps unfamiliar with the location being proposed, it is important to note that the police never provided a further description of “Melissa” that would have led the appellants to Melissa Crescent in Whitby. Any uncertainty is then removed when the police refer to the past meeting with the courier.

[13] The appellants arrived at the scheduled time and place. The police observed the appellants and believed they were texting while waiting for Smith to arrive. Text messages between “Jus” and Smith’s cell phone correspond with the police observations of the appellants’ location and activities.

[14] The appellants were found with the “Jus” and “J Boy” phones in the car, along with four other phones and the money. The “Jus” phone was between the driver and passenger seats, and the “J Boy” phone was in the center console. The presence of six cell phones and over $10,000 in cash in the car provides further support for the conclusion that the appellants were involved in trafficking cocaine.

[15] The appellants question whether physical possession of the cell phones and knowledge of the texts can be attributed to either appellant when there was another person in the car. The Crown cites Sharpe J.A. in R. v. Dell (2005), 2005 CanLII 5667 (ON CA), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35, for the proposition that, “when considering the reasonableness of a verdict, an appellate court is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct.”

[16] The appellants’ failure to provide an innocent explanation at trial undermines the alternative inferences they now advance in their submissions. Neither appellant called a defence to challenge the Crown’s theory and evidence.

[17] The cell phones, the money, and, in particular, the text messages, established a strong circumstantial case. The conclusion that the two were parties to the June 15, 2010 trafficking of cocaine to Smith and that they were in possession of the proceeds of crime was reasonable.

[18] Finally, the appellants also argued on appeal that the trial judge misapprehended various pieces of evidence. A misapprehension of the evidence will constitute a miscarriage of justice if the trial judge was mistaken as to the substance of material parts of the evidence, and those errors played an essential part in the reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. The Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4, emphasized that Morrissey described a stringent standard. The misapprehension must go to the substance rather than to the

detail, and must be material rather than peripheral to the reasoning of the trial judge. The errors must play an essential part in the reasoning process resulting in a conviction.

[19] It is acknowledged by the Crown that the trial judge erred in describing the location of the “J Boy” phone in the car. He said it was on the right front dash, when it was actually in the center console. He also erred in saying that Smith brought the bag into his garage after the Melissa Crescent meeting on June 15, 2010. Police observed Smith entering the front door of his house. We do not believe that these mistakes were material to the trial judge’s reasoning.

[20] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”

“G. Pardu J.A.”