Court of Appeal for Ontario

Date: 2017-07-21 Docket: C63150

Judges: Hoy A.C.J.O., Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Kevin Douglas Appellant

Counsel

Kevin Douglas, acting in person

Amy J. Ohler, appearing as duty counsel

Tanit Gilliam, for the Crown

Heard: July 11, 2017

On appeal from the conviction entered on August 8, 2016 and the sentence imposed on November 17, 2016 by Justice Dale Parayeski of the Superior Court of Justice.

Reasons for Decision

[1] Following a trial, the appellant was convicted of possession of cocaine for the purpose of trafficking (approximately 110 grams) and possession of proceeds of crime ($650). He was sentenced to two years' less a day imprisonment, less 24 days' credit for pre-sentence custody, plus three years' probation. He appeals against conviction and requests leave to appeal sentence.

[2] The appellant was one of three men found lying on top of two beds in a motel room after police, acting under a search warrant, breached the door to the room. Police had had the room under surveillance for two days prior to executing the search warrant and had observed numerous brief comings and goings to and from the room and an adjacent room during the surveillance period, which comings and goings included visits by known drug users.

[3] Although the appellant was not positively identified as one of the men engaging in what appeared to the police to be drug transactions during the surveillance period, one of the surveillance officers testified that he observed all three men eventually found in the motel room while the officer was on surveillance.

[4] Police found substances confirmed by certificates of analysis to be cocaine and cash on the two other occupants of the room (14.7 grams and 12.2 grams of cocaine, and $1,085 and $320 in cash, respectively) and one of the other men had a key to the motel room. No drugs were found on the appellant's person but police found two bundles of cash, secured by elastics in his pockets, $440 in a rear pocket and $210 in a front pants pocket.

[5] Police also found three baggies of what appeared to be crack cocaine under a cup on a table adjacent to the bed where the appellant was lying (21.7 grams in total); two bags of what appeared to be either cocaine or crack cocaine under one of the beds in the room (86.6 grams in total) and one bag of what appeared to be crack cocaine (1.2 grams) in a small bag in plain view on another table in the room. Other items found in the room included a scale with a white powder residue on it and several phones.

[6] Apart from the cocaine found on the other two occupants of the room, none of the suspected drugs ("the balance of the substances in the room") were tested.

[7] The main issue on the conviction appeal is whether the trial judge erred in relying on lay opinion evidence from a police officer to establish that the balance of the substances in the room were cocaine when those substances had not been analyzed. In the alternative, if the trial judge was entitled to make that finding, the appellant submits that the trial judge erred in finding the appellant was in possession of the balance of the substances in the room and proceeds of crime.

[8] The appellant contends that while it may be possible in some cases to prove a substance is a narcotic without a certificate of analysis, this is not one of those cases. In this case, there were differences in the colour, texture and packaging of the balance of the substances in the room as compared to the substances found on the two other occupants of the room that were subjected to analysis. The police officer who testified he believed the balance of the substances were cocaine is not a chemist and was not in a position to positively confirm their character.

[9] As for the issue of possession, most of the balance of the substances in the room were not in plain view. In all the circumstances, it was unreasonable for the trial judge to conclude that the appellant had sufficient knowledge of those substances and sufficient control of the room and the substances to warrant a finding of possession.

[10] We do not accept these submissions.

[11] Although we think it should be the rare case in which a trial judge makes a finding that a substance is a particular narcotic in the absence of a certificate of analysis, we are satisfied, based on the totality of the circumstantial evidence in this case, that it was open to the trial judge to do so.

[12] As we have said, samples of the substances found on the two other occupants of the motel room were confirmed to be cocaine by certificates of analysis. A police officer who had participated in more than 100 undercover cocaine purchases testified that the non-tested substances smelled like cocaine and had the appearance, texture(s) and colours for cocaine and were packaged as cocaine often is, in ziplock bags. Based on the whole of the evidence, including the surveillance evidence that placed the appellant in the motel room for more than a fleeting period; the evidence of the comings and goings to the room; the presence of what appeared to be drugs and drug-related paraphernalia throughout the room; the experienced police officer's lay opinion concerning the nature of the balance of the substances in the room; and the cash in each of the occupant's pockets; it was open to the trial judge to conclude, as he did, that the occupants of the room, including the appellant, were part of a drug-dealing enterprise and that the substance they were dealing was cocaine. This same evidence and this finding supported the trial judge's further finding that the appellant was in possession of the balance of the substances in the room.

[13] Viewed as a whole, the record provided a sufficient basis for the trial judge to make the findings of guilt.

[14] The conviction appeal is therefore dismissed.

[15] Taking account of the quantity of cocaine involved, in our view, the sentence imposed was fit and we see no error in principle that would justify intervention by this court. Leave to appeal sentence is granted but the sentence appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"David Brown J.A."