COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm-Evans, 2016 ONCA 28

DATE: 20160114

DOCKET: C55996

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Malcolm-Evans

Appellant

Breana Vandebeek, for the appellant

James D.M. Clark, for the respondent

Heard: January 8, 2016

On appeal from the convictions entered on January 13, 2011 and the sentence imposed on January 14, 2011 by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] After trial by judge and jury, the appellant was convicted of possession of cocaine for the purposes of trafficking and possession of the proceeds of crime under $5,000. He appeals both convictions.

[2] The police conducted surveillance of a multi-unit house in which suspected cocaine trafficking was occurring. The appellant was one of five people arrested after they had departed the building in a car. The arresting police officer, Constable Ranieri, testified that, during the arrest, he saw the appellant reach into his pocket, pull out a clear plastic bag containing what appeared to be crack cocaine, and throw it under the car. The bag contained 26.8 grams of powder cocaine. A search of the appellant disclosed two cell phones and $4,030 in cash. The other males in the vehicle were found in possession of various drugs and drug paraphernalia. Constable Ranieri testified that at least one of the appellant’s cell phones was ringing repeatedly and, when he answered the phone, the callers asked for a “20 piece” or a “10 piece”, which is code for certain quantities of cocaine.

[3] It was the defence theory that the appellant was not involved in the drug trade. The appellant did not testify, but his girlfriend gave evidence for the defence. She said that she lived at the target residence, that no drug dealing took place in her apartment, and that she had given the appellant $2,400 in cash the evening before his arrest to cover rent and supplies for a new apartment unit.

[4] The appellant raises four grounds of appeal.

[5] First, relying on the Supreme Court’s decision in R. v. Baldree, 2013 SCC 35, [2013] S.C.R. 520, the appellant argues that the trial judge erred in admitting evidence of the intercepted drug purchase calls. The calls, he says, were hearsay and presumptively inadmissible. The appellant submits that, despite the lack of any objection at trial, the evidence ought not to have been admitted.

[6] We reject this ground of appeal.

[7] Unlike the circumstances in Baldree, which involved evidence of a single drug purchase call and no other evidence connecting the accused to drug dealing, in this case there were multiple calls, which the Baldreecourt (at paras. 71, 94 and 120) recognized may establish reliability. In addition, in this case, there was significant confirmatory evidence that the appellant was a drug dealer. The necessity requirement for the admission of hearsay is also met: the callers hung up quickly and used coded language. There was no realistic possibility of identifying the callers and obtaining their evidence for use at trial.

[8] Further, the lack of objection at trial to the admissibility of the drug purchase calls is important. Constable Ranieri was cross-examined on the fact that he failed to keep a full record of how many calls were received, or what exactly the callers said. This was relevant to the overall reliability of his testimony, which included the important evidence of seeing the appellant throw cocaine under the car. In these circumstances, it is difficult to accept that defence counsel at trial failed to object to the admission of the evidence of the cell phone calls through oversight.

[9] Moreover, even without the evidence of the content of the cell phone calls, the case against the appellant was overwhelming. As we have said, the appellant did not testify, and there was no evidence that contradicted the police officer’s description of the appellant’s possession and attempted disposal of a bag of cocaine. It was not suggested to Constable Ranieri that he had either not made, or had fabricated, his observations. The evidence of at least one and possibly two of the appellant’s cell phones ringing steadily was admissible in any event. According to the uncontradicted evidence of a police expert witness who also testified at trial, in the circumstances, this was indicative of drug dealing.

[10] The remaining grounds of appeal relate to alleged insufficiencies in the jury charge with respect to the trial judge’s instructions on reasonable doubt, and the assessment of the defence evidence and the credibility of witnesses.

[11] More particularly, the appellant argues that the trial judge erred in telling the jury that reasonable doubt was “closer to absolute certainty than it is to the balance of probabilities”, without defining for them how much closer it is to absolute certainty. In this regard, the appellant contends that the trial judge should have told the jury that proof beyond a reasonable doubt falls “much” closer to absolute certainty than to proof on a balance of probabilities. In addition, in describing the standard of proof, the trial judge failed to use the word “sure”, in describing the level of certainty required for a finding of guilt. Further, he erred by telling the jury not to “go sifting through the evidence looking for a reasonable doubt here and a reasonable doubt there”.

[12] We also reject these arguments.

[13] There was no objection to the charge on reasonable doubt at trial. The issues now raised take phrases used by the trial judge out of context. On a review of the entire charge, we are satisfied that there was no “reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply”: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 41.

[14] The appellant also asserts, relying on this court’s decision in R. v. B.D., 2011 ONCA 51, that the trial judge erred in not giving a W.(D.) instruction with respect to the defence evidence: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. We disagree.

[15] In our view, a W.(D.) instruction in respect of the defence evidence was not required in this case. This was not a case, like B.D., where the jury had to make credibility findings on a vital issue that seemed to require an either/or choice between conflicting evidence: See R. v. Dayes, 2013 ONCA 614, at paras. 54-56.

[16] The evidence of the appellant’s girlfriend was particularly relevant to the proceeds of crime charge – it went to whether there was an alternative explanation for the cash found on the appellant. Her testimony did not bear on whether the appellant was in possession of a bag of cocaine when he was arrested. Moreover, even on her evidence, the amount of the funds found in the appellant’s possession ($4,030) was not fully accounted for.

[17] We note that the charge given on the funds found in the appellant’s possession actually favoured the appellant. The charge did not highlight for the jury the failure of the defence evidence to fully explain the amount of the funds in the appellant’s possession. If a W.(D.) instruction specific to the defence evidence had been given, this discrepancy may well have been underscored, to the appellant’s potential detriment.

[18] Finally, we do not give effect to the appellant’s argument that the trial judge erred by failing to provide the jury with sufficient guidance on the assessment of witnesses’ credibility and/or demeanour. None of the alleged deficiencies are material in the context of the entire charge given in this case.

[19] Accordingly, the appeal is dismissed.

“E.A. Cronk J.A.”

“M. Tulloch J.A.”

“K. van Rensburg J.A.”