COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stephens, 2016 ONCA 262
DATE: 20160408
DOCKET: C57080

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Omar Stephens
Appellant

Bernadette Saad, for the appellant
Sandy Thomas, for the respondent

Heard: April 7, 2016

On appeal from the conviction entered on July 11, 2012 and the sentence imposed on May 1, 2013 by Justice Lois B. Roberts of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of one count of trafficking in cocaine by Roberts J. of the Superior Court of Justice on July 11, 2012. The trial judge imposed a conditional sentence of 24 months less five days, followed by one year of probation on May 1, 2013. The appellant appeals the conviction and sentence.

[2] The conviction arose from a drug transaction with an undercover police officer in the Glenholme Ave. and Clovelley Ave. area of Toronto. The Crown’s case was that a known drug user with a long criminal record, Kathleen Barry, had given a small quantity of cocaine (1.3 grams) to the appellant who in turn gave it to another man, George Corbiere, who then transferred it to a police officer, Detective Constable Dion Monahar, who paid $100 for it. The part of the transaction involving the appellant, Corbiere and Monahar took place with all three men standing in close proximity outdoors in an area adjacent to a low-rise apartment building.

[3] The appellant testified that he did not know that the small package given to him by Barry contained cocaine. Barry testified and confirmed the appellant’s testimony on this point.

[4] The trial judge disbelieved the appellant’s and Barry’s testimony:

Frankly, I found that Ms. Barry was an incredible and unreliable witness.

While he may have been duped by his affection for Ms. Barry, Mr. Stephens ultimately showed by his admissions that he was not blind to what was going on with Ms. Barry and her friends. He was a knowing and active participant in the delivery of the crack cocaine.

I find that Mr. Stephens took an active role in the transaction with D.C. Monahar. He delivered the drugs to Mr. Corbiere and was part of the chain of distribution of the drugs to the purchaser.

[5] The trial judge believed Monahar’s testimony, including, crucially, that the appellant was present and actively participated in the three-way transfer of the cocaine in the outdoor area near the apartment building and that the cocaine was in a clear plastic baggy.

[6] The appellant appeals his conviction on several grounds.

[7] First, the appellant contends that the trial judge reversed the burden of proof on the key issue of whether a napkin or tissue may have been present at the scene. The appellant testified that he did not know what he was transferring because the substance was hidden under wrapping.

[8] We do not accept this submission. The trial judge explicitly accepted Monahar’s testimony that the cocaine was inside a clear plastic baggy. Moreover, she said this about the appellant’s testimony on this issue:

I do not accept Mr. Stephens’ evidence that he did not know that the package contained drugs, nor does his evidence leave me with a reasonable doubt. First, I do not believe that the package was wrapped in a napkin, tissue or a paper towel. Mr. Stephen’s evidence was very unreliable on this extremely important point: as already noted, he started by saying that the package was wrapped in a paper towel, went so far as to describe it as being wrapped in a particular napkin from a particular restaurant, and then ended up saying it was wrapped in a tissue with which one would blow one’s nose.

[9] We see no error in the way the trial judge treated this issue.

[10] Second, the appellant submits that the trial judge erred by arriving at conclusions on new issues not raised at trial and not supported by the facts, including that the appellant was involved in a romantic relationship with Barry, observations about the appellant’s demeanour (sweating) in the courtroom on a date originally scheduled for judgment, finding that the appellant observed Barry doing drugs at a party, and concluding that there must have been some communication between the appellant and Barry after the charges were laid.

[11] In our view, there was evidence to support all of these conclusions. In any event, they were at the extreme perimeter of the issues at the crux of the trial – namely, did the appellant participate in the transaction outside the apartment and did he know that the substance involved in the transaction was cocaine?

[12] Third, the appellant asserts that the conclusions by the trial judge on the two charges, possession for the purpose of trafficking (guilty) and possession of the proceeds of crime, namely $100 (not guilty) are logically irreconcilable and therefore the conviction on the former charge is unreasonable.

[13] We disagree. The evidence on the trafficking count was very strong. It included not only Monahar’s clear evidence about the appellant’s role in the transaction, but also Officer Duncan’s corroborating testimony. The evidence on the proceeds count was weaker. Although $100 was found on the ground, it was unclear how it got there. Accordingly, the trial judge entered an acquittal on the proceeds count. In short, the evidence established beyond a reasonable doubt that the appellant possessed the cocaine, knowing that it was cocaine. The evidence did not conclusively establish that he possessed the $100.

[14] The appellant appeals his sentence. He submits that the 24 month less five day sentence was too long in comparison with Corbiere’s six month conditional sentence, that the electronic monitoring and community service components of the sentence were harsh and unnecessary, that probation was unwarranted, and that credit should have been given for the long and strict bail with which he complied pre-trial.

[15] We are not persuaded by this submission. The appellant could easily have received a custodial sentence in a provincial, or even federal, institution given that the drug involved was cocaine. A conditional sentence with electronic monitoring followed by probation and community service was neither unfit nor unreasonable.

[16] The appeal is dismissed.

“J.C. MacPherson J.A.”
“J. MacFarland J.A.”
“H.S. LaForme J.A.”