COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearle, 2016 ONCA 954

DATE: 20161216

DOCKET: C61098

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Pearle

Appellant

Brad Greenshields, for the appellant

Milica Potrebic, for the respondent

Heard: December 13, 2016

On appeal from the conviction entered on May 7, 2015 and the sentence imposed on May 7, 2015 by Justice J. Elliott Allen of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, Rene Pearle, was convicted of two counts of possession of cocaine for the purpose of trafficking by Allen J. of the Ontario Court of Justice in Kitchener. He was sentenced to three years and nine months’ imprisonment after credit for time served.

[2] On one count, the Crown alleged that on September 27, 2013 the appellant arranged by telephone to meet with Luis Hinojosa at an address in Cambridge known as “The Cabin” where Hinojosa sold the appellant two ounces of cocaine that the appellant possessed for the purpose of trafficking. The Cabin was a flophouse in Cambridge frequented by local drug dealers and users.

[3] On the second count, the Crown alleged that on October 1, 2013 the appellant purchased one ounce of cocaine from Hinojosa in the visitors’ parking lot of a townhouse complex on Manhattan Circle, again for the purpose of trafficking.

[4] The appellant appeals the convictions on two grounds.

[5] First, the appellant submits that both convictions are unreasonable.

[6] With respect to both counts, the appellant asserts that there was no evidence that any substance linked to the appellant was cocaine. No cocaine was seized in either location and, as a result, there was no Certificate of Analysis that any substance exchanged on either occasion was cocaine. If any substance was exchanged on either day, it was, says the appellant, as likely to be methamphetamine as cocaine because of their similar prices. Accordingly, the trial judge could not conclude that the Crown had proved beyond a reasonable doubt that the appellant had possessed cocaine.

[7] We are not persuaded by this submission. The Crown case against the appellant was entirely circumstantial. Accordingly, the test is the one stated by Cromwell J. in R. v. Villaroman, 2016 SCC 33, at paras. 55 and 56:

Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence [Cases and citations omitted].

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine,at para. 22.The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”

[8] The Crown case against the appellant, although circumstantial, included many intercepted communications between the appellant and Hinojosa, police surveillance, physical evidence and expert testimony. The content of the phone conversations, including the meaning of coded language as interpreted by an expert witness, and the appellant’s locations flowing from these conversations, lead us to the conclusion that the two convictions are far from unreasonable.

[9] In our view, there is overwhelming evidence that the substance in issue in the relevant transactions was cocaine. On October 8, when he was arrested, the appellant was in a hotel room with cocaine, 98 unused “dime” baggies, two used “dime” baggies with cocaine residue, his cell phone and debt lists. Silva, the appellant’s girlfriend, was seen earlier in the hotel room. She was seen leaving the premises in a van and was arrested shortly thereafter; she had cocaine in a Ziploc bag, similar to the baggies in the hotel room, on her person. A few days later, Hinojosa was arrested; he had almost a kilogram of cocaine in his residence and a safe at a separate location.

[10] The reality is that at the relevant times there was a great deal of contact between the appellant and Hinojosa and, to a lesser extent, Silva. The presence of cocaine in communications and in locations was pervasive. There is nothing to suggest that the subject matter of all this activity was methamphetamine, not cocaine. The appellant’s attempt to inject the former substance as a second plausible theory based only on one question and answer put to the expert in cross-examination is, in our view, “fanciful … speculation”: Villaroman, at para. 37.

[11] Second, the appellant contends that three of the intercepted telephone calls between Hinojosa and, respectively, Doug Comeau, Silva and the appellant (text message) were improperly admitted into evidence and relied on by the trial judge without consideration of, and a ruling on, the test in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938.

[12] We agree that the trial judge should have made a ruling on this issue and that he erred by saying in his judgment, with respect to one of the calls: “This is not some exception to the hearsay rule. It is direct evidence of how much Hinojosa was charging for one.”

[13] However, this error is of no moment. Even without the three communications in issue, the other evidence, described above, overwhelming establishes that the substance being possessed for the purpose of trafficking was cocaine.

[14] The appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”