Court of Appeal for Ontario

Date: October 17, 2017 Docket: C59582

Justices: Pepall, Benotto and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

William Scharf Appellant

Counsel

For the Appellant: Jeffrey Langevin

For the Respondent: Morris Pistyner, Kelvin Ramchand and Jessica Legrand

Heard: October 10, 2017

On appeal from: The conviction entered on July 15, 2014 and the sentence imposed on October 7, 2014 by Justice Kevin Phillips of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Charges and Sentence

The appellant was convicted of possession for the purpose of trafficking cocaine and several offences relating to possession of prohibited weapons. He was sentenced to 5 years for the trafficking and 1 ½ years consecutive for the weapons offences less credit for pre-trial custody. He appeals only his conviction for trafficking and the five year sentence in connection with it.

[2] Facts

The appellant, and his friend Stephen Burns, had been the target of a police investigation. On the day in question, when the appellant was at Burns' home, several police officers approached the home in an unmarked van. The appellant testified that just months earlier, his friend Wayne Drinkwalter had been shot by assailants pretending to be police officers. Consequently, he thought the intruders were members of a "hit squad" out to kill him and Burns. He says that he ran to the bathroom for cover. The evidence of the arresting officers suggested that Burns had preceded the appellant to the bathroom. After securing both Burns and the appellant, the officers found a plastic bag containing 236 grams of cocaine in the toilet.

[3] Crown's Position and Defence

The Crown submitted that the appellant was in possession of the cocaine and attempted to flush it down the toilet. The defence argued that Burns attempted to flush it. Burns said the cocaine was his.

[4] Trial Judge's Finding

The trial judge found that the appellant had possession of the cocaine and had attempted to flush it down the toilet.

[5] Grounds of Appeal

The appellant submits:

(i) the trial judge misapprehended the evidence by finding that he was in the bathroom and in possession of the cocaine;

(ii) the verdict is unreasonable because the trial judge did not explain how he resolved contradictions in the evidence concerning whether he was in the bathroom or not; and

(iii) he had ineffective assistance of counsel primarily because Drinkwalter was not called as a witness.

[6] Court's Response

We do not agree with these submissions.

[7] Misapprehension of Evidence

The trial judge did not misapprehend the evidence that the appellant was in the bathroom. On the appellant's own evidence, he ran there to avoid the intruders. He said multiple times that he was in the bathroom. The trial judge accepted the combined evidence of the police officers to find that the appellant and Burns were in the bathroom together and that the appellant, who was near the toilet, "engaged himself in an effort" to flush the cocaine. The findings of fact and credibility underlying this conclusion are owed deference. They are not contradicted by the evidence and do not render the verdict unreasonable.

[8] Ineffective Assistance of Counsel

The appellant relies on fresh evidence to support his assertion of ineffective assistance of counsel. He submits that his lawyer should have called two witnesses, including Drinkwalter, who would have corroborated his concern that the intruders were not police. The evidence of these witnesses could not have affected the result of the trial. The evidence, therefore, does not meet the Palmer test. Nor does it establish the prejudice required to substantiate an allegation of ineffective assistance: see R. v. White (1997), 32 O.R. (3d) 722. In short, the result of the trial would have been the same had the evidence been admitted at trial. We come to this conclusion for three reasons. First, the appellant's testimony about Drinkwalter's experience was never challenged. Second, the trial judge accepted the evidence that Burns had loudly announced that the house was about to be raided by the "cops". Finally, if the appellant was afraid of the intruders, he would not have left the bathroom door open.

[9] Trafficking Offence

Although not the subject of submissions by the appellant, we do not agree with the trial judge's determination that the act of flushing the cocaine down the toilet amounted to trafficking: R. v. MacDonald, [1963] B.C.J. No. 98; R. v. Pappin, (1970) 12 C.R.N.S. 287. However, the trial judge found as fact that the appellant was in possession of the cocaine in a quantity greater than for personal use. The trafficking offence was therefore made out.

[10] Sentencing

The appellant submits that the sentence of five years for trafficking is outside the range and this court should substitute three years. We do not agree. The trial judge considered the principles of sentencing, identified the appropriate mitigating and aggravating factors, and imposed a sentence that was fit. See also R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581. The appellant has not demonstrated an error in law or in principle that impacted the sentence that would warrant appellate intervention as required by R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 and R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868.

[11] Disposition

For these reasons, the appeal is dismissed. Leave to appeal sentence is allowed, but the sentence appeal is dismissed.

"S.E. Pepall J.A."

"M.L. Benotto J.A."

"I.V.B. Nordheimer J.A."