Court of Appeal for Ontario

Date: 2017-01-12 Docket: C61377

Judges: Feldman, Rouleau and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Eugene Adomako Appellant

Counsel

Jonathan Dawe, for the appellant Chris DeSa, for the respondent

Heard and released orally: January 12, 2017

On appeal from: The conviction entered on April 24, 2015 and the sentence imposed on June 29, 2015 by Justice T. Ducharme of the Superior Court of Justice.

Endorsement

[1] The appellant appeals his convictions for possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

[2] The appellant challenged the warrantless search of the car where the cocaine was found as contrary to his s. 8 Charter rights. He testified on the voir dire but not on the trial proper.

[3] The trial judge rejected the Charter claim. The appellant submits that the trial judge's reasons for doing so were inadequate and that he erred in his statement of the onus of proof. Crown counsel acknowledges that the trial judge erred when he stated that the onus of proof was on the appellant when the search was warrantless. The Crown maintains however that the record, when viewed as a whole, makes it clear that the error is harmless.

[4] We agree. The trial judge's reasons consisted of findings that he accepted the evidence of the police officers and rejected the evidence of the appellant as to the circumstances of the stop and search of the car. While these reasons essentially make conclusory findings of credibility regarding the appellant and the police officers, we are satisfied that they were sufficient to support his conclusion that there was no Charter breach. A review of the transcript shows a number of circumstances where the evidence of the appellant was not logical, such as where he suggested he could not explain why he turned into a shopping plaza at 9:30 at night when the stores were closed.

[5] Given the trial judge's complete rejection of the appellant's story, we are satisfied that his error in the statement regarding the onus of proof was a harmless one.

[6] The appellant also submits that the trial judge erred by giving insufficient reasons for his findings that the appellant's possession of two quarter-ounce baggies of crack cocaine was for the purpose of trafficking and that the roll of mostly $10.00 bills he had was the proceeds of crime.

[7] In our view, the reasons were sufficient as was the evidence to support the finding of guilt on the possession for the purpose of trafficking count. However, we accept the submission of counsel for the appellant that the conviction for proceeds of crime cannot stand.

[8] The trial judge accepted the opinion of the expert police officer on both issues. However, the expert's evidence on the proceeds issue was only that there was a "possibility" that the roll of bills was proceeds of crime. The trial judge also mentioned the rest of the record but, as counsel pointed out, the other evidence was, at best, ambiguous. None of the paraphernalia needed to sell smaller quantities of crack cocaine were found and $10.00 bills were not consistent with the sale of one-quarter ounce quantities of crack cocaine, based on the evidence of the police expert as to value.

[9] In the result, the appeal is dismissed with respect to the conviction for possession for the purpose of trafficking but allowed with respect to the conviction for the proceeds of crime, which conviction is set aside and an acquittal is entered. As a result, the forfeiture order of the $395.00 is also set aside.

"K. Feldman J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."