Court of Appeal for Ontario

Date: 2017-06-23 Docket: C61146

Judges: Strathy C.J.O., Benotto and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Kyle Innocent Appellant

Counsel:

• Alexander Ostroff, for the appellant
• Xenia Proestos, for the respondent

Heard: June 19, 2017

On appeal from the convictions entered on October 17, 2014 by Justice Alexander Sosna of the Superior Court of Justice.

Reasons for Decision

A. Introduction

[1] At the conclusion of oral submissions, we advised counsel the appeal was being dismissed with reasons to follow. These are those reasons.

B. Background

[2] The appellant was asleep in the back seat of a car that was stopped by police on Highway 401 for speeding. He had been travelling with three men from Toronto to Montreal. Brandon Daniels was driving, Christopher Cambronne was in the passenger seat, and Brian Simpson-Fry was in the back seat next to the appellant.

[3] At the time, the appellant was subject to a recognizance and there were outstanding warrants for his arrest. When stopped, he gave the police a false name. One of the officers observed the appellant's arm resting on a red and blue duffle bag between the rear seats. The officer also smelled marijuana and noticed what appeared to be a burnt marijuana cigarette on the floor in front of the appellant. When the officer asked him about it, the appellant picked the marijuana cigarette up, but then swallowed it. The appellant then attempted to run, but was subdued and arrested by the officers, at which point he said "I am stupid. I am going to do eight years for this. I'm on parole". The officers found $545 on the appellant and another $400 in the area where he had attempted to run.

[4] All four occupants of the vehicle were arrested for possession of marijuana. During a search incident to arrest of Simpson-Fry, the police found crack cocaine, a clear bag of marijuana, and a digital scale. The red and blue duffle bag contained a bag of white powder, a grey grocery bag of white powder, and a small bag containing marijuana. Later at the detachment, the police searched a black camera bag found partially jammed under the rear of the front passenger seat. This was found to contain $2,280 in cash and seven clear plastic bags containing white powder and a hard white substance. The totality of the seizure was later calculated as 1.2 kilograms of cocaine, less cutting agents, which weighed 653 grams.

[5] The four men were charged with possession of cocaine for the purpose of trafficking. The appellant was also charged with various counts of wilfully obstructing a peace officer and failure to comply with a recognizance.

[6] Simpson-Fry pleaded guilty to his charges on August 27, 2013. At the appellant's trial, Simpson-Fry testified the drugs were his. The Crown withdrew all charges against the other passenger, Cambronne, and the driver, Daniels, in exchange for statutory declarations wherein they said only the appellant brought bags into the car.

[7] At his trial, the appellant pleaded guilty to the related charges, but pleaded not guilty to possession of cocaine for the purpose of trafficking and failure to comply with a recognizance by possession of drugs. He took the position that the evidence of Daniels and Cambronne was unreliable and submitted his evidence, together with that of Simpson-Fry, raised a reasonable doubt.

[8] The trial judge found the appellant was not a credible witness. Based on the evidence he accepted and his credibility analysis, the trial judge convicted the appellant.

[9] The appellant appeals, alleging the trial judge erred in his credibility analysis, misapprehended the evidence, and came to an unreasonable verdict.

C. Analysis

(1) Credibility Assessment

[10] The appellant submits the trial judge erred in accepting the evidence of Daniels and Cambronne by: (i) finding it to be conflicting credible evidence without undertaking a reasoned analysis; (ii) finding their testimony was consistent with their declarations when this amounted to "oath helping"; and (iii) finding their testimony to be consistent with one another when one said only the appellant had brought bags into the car and the other said both the appellant and Simpson-Fry had done so.

[11] We do not accept these submissions. The trial judge's findings of credibility are entitled to deference. It was open to him to reject the appellant's testimony and accept the testimony of Daniels and Cambronne. The trial judge undertook a reasoned analysis and relied on more than just the evidence of Daniels and Cambronne in rejecting the appellant's evidence. In particular, he referred to the appellant's false identification to the police, the burned marijuana cigarette on the floor of the car, the fact the appellant swallowed the marijuana cigarette, his attempt to flee, and his comments to the police when caught.

[12] The trial judge cautioned himself in accordance with R. v. Vetrovec, [1982] 1 S.C.R. 811, and concluded the evidence of Daniels and Cambronne was reliable and credible. With respect to oath-helping, the trial judge accepted the evidence of Daniels and Cambronne not just because it was consistent with their declarations, but because "individually and collectively [their testimony] was not undermined or weakened in cross-examination."

[13] Lastly, it was open to the trial judge to accept the evidence of Daniels that the appellant was the only one who brought bags into the car.

(2) Misapprehension of Evidence

[14] The appellant points to three aspects of the evidence that he alleges the trial judge misapprehended: (i) how long the appellant had known one of the passengers and how the drive to Montreal was arranged; (ii) how many bags were found in the car; and (iii) the reasons for the appellant's question to the driver about "riding dirty". The appellant testified that he fell asleep in the back seat, woke up to find the driver was speeding and asked if they were "riding dirty." He said his question was because he was concerned the car was stolen, not because of any concern about contraband. The trial judge concluded this evidence was "sheer fiction" and rejected it.

[15] We are not persuaded the trial judge misapprehended the evidence. It was open to him to accept the evidence that the appellant arranged for Daniels to drive him to Montreal. The trial judge was entitled to rely on the agreed statement of facts, which confirmed there were two bags found in the car. As for the "riding dirty" comment, it was open to the trial judge to disbelieve the appellant's testimony that he was referring to matters other than the existence of drugs in the car.

(3) Unreasonable Verdict

[16] The appellant submits there was insufficient evidence to convict him. We do not agree. The trial judge summarized his findings of fact in detail, correctly directed himself as to the inferences that can be drawn from circumstantial evidence, and concluded based on the entirety of the evidence the Crown had proven the charges beyond a reasonable doubt. The trial judge's findings and the circumstantial evidence support the finding of guilt.

D. Disposition

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

"G.R. Strathy C.J.O."

"M.L. Benotto J.A."

"B.W. Miller J.A."