Court of Appeal for Ontario
Date: 2017-07-05 Docket: C58476
Judges: Weiler, Hourigan and Pardu JJ.A.
Between
Her Majesty the Queen Respondent
and
Kalvin Malcolm Appellant
Counsel
For the Appellant: Gary Grill and Elizabeth Bingham
For the Respondent: Jeremy Streeter
Heard: July 4, 2017
Appeal Information
On appeal from the conviction entered on April 9, 2013, and from the sentence imposed on July 9, 2013, by Justice Myrna L. Lack of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
Background
[1] Kalvin Malcolm appeals from convictions for various drug offences – possession for the purpose of trafficking in crystal methamphetamine and cocaine, possession of marihuana, and possession of proceeds of crime. The drugs and $17,270 in cash were found pursuant to a search warrant in an apartment of which he was the sole resident. The warrant was obtained by the police in relation to alleged criminal activity on the part of the appellant's roommate. The appellant testified that he did not know the drugs were in his apartment and that the cash was derived from legitimate sources.
Grounds of Appeal
[2] He submits that the trial judge erred in three respects:
She erred in finding that there was a sufficient basis in the Information to Obtain to support a reasonable belief that a search of the apartment would afford evidence of a robbery and drug dealing by the appellant's former roommate.
She erred in her assessment of the appellant's credibility.
Her reasons for conviction were insufficient.
[3] We would reject each of these grounds of appeal.
Analysis of Search Warrant
[4] The target of the search was Mr. Rainford, who had lived with the appellant in the apartment. They had been friends since childhood. During the time Mr. Rainford lived with the appellant, there was a home invasion robbery. Both Mr. Rainford and his girlfriend were connected to both the robbery and the apartment searched. A black Acura, like the vehicle used by the appellant, was also connected to the robbery. Although Mr. Rainford moved out some time before May 11, 2011, he continued to visit the property.
[5] The trial judge did not err in concluding that there was a basis upon which the issuing justice could have granted the search warrant.
Credibility Assessment
[6] There is nothing in the record justifying a departure from the deference owed to a trial judge's assessment of credibility. Aspects of the appellant's evidence were far-fetched and demonstrably false. The trial judge's reasons provide an ample basis for appellate review.
Knowledge of Drugs
[7] The appellant was the sole occupier of the apartment. The only substantial issue at trial was whether he knew the drugs were in the apartment. The trial judge rejected his evidence that he did not know the drugs were there and inferred that he knew of the drugs in his kitchen cupboards. This was a conclusion reasonably open to her on the evidence.
Source of Funds
[8] The appellant testified that part of the $17,270 was composed of proceeds from the sale of his car and a down payment he had received of $8500.00 for the sale. The appellant testified that he showed the car to the prospective purchasers and printed a receipt for the purchaser before the purchaser saw the vehicle, or they negotiated terms, even though he did not possess a printer. The trial judge concluded that this was an obvious concoction.
Sentence Appeal
[9] The appellant also appeals from sentence. He submits that the trial judge erred by failing to grant him a conditional sentence. The trial judge rejected a conditional sentence largely because of the appellant's two previous, albeit dated convictions (three years before the events leading to conviction) for breach of recognizance. She was not persuaded that he would abide by the terms of a conditional sentence. The appellant also had prior convictions for possession of a controlled substance for the purpose of trafficking and possession of property obtained by crime for which he had been sentenced to the equivalent of a year in jail. We see no basis for appellate intervention.
Jurisdictional Issue
[10] The Crown concedes that the trial judge did not have jurisdiction to hear Count 3 on the indictment, the possession of marihuana charge, as the amount in issue was less than 30 grams. Under s. 4(5) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this is a summary conviction offence: see R. v. Allen, [2000] O.J. No. 4150 (S.C.). The appeal is allowed to the extent of vacating the conviction on Count 3 of the indictment for possession of marihuana, but the appeal from conviction is otherwise dismissed. Leave to appeal sentence is granted but the appeal is dismissed.
K.M. Weiler J.A.
C.W. Hourigan J.A.
G. Pardu J.A.