Court of Appeal for Ontario

Date: 2018-09-25 Docket: C63236

Judges: Watt, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ganno Abdella Appellant

Counsel

James N. Frost, for the appellant

Jacob Sone, for the respondent

Heard and Released

Heard and released orally: September 25, 2018

Appeal Information

On appeal from the conviction entered on October 21, 2016 and the sentence imposed on March 28, 2017 by Justice Alfred J. O'Marra of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of trafficking heroin and possession of the proceeds of crime. She was sentenced to a term of imprisonment of 26 months less credit of 3 days for time spent in pre-disposition custody.

[2] The appellant challenges her conviction on the grounds that the trial judge erred in three respects, that is to say:

i. by concluding that the Crown had proven the case against her beyond a reasonable doubt;

ii. by engaging in impermissible speculation rather than drawing permissible inferences; and

iii. by failing to consider other evidence that ran contrary to the findings made by the trial judge.

[3] The appellant acknowledges that the trial judge identified the correct principles applicable when the case for the Crown consists wholly or substantially of circumstantial evidence. Where the trial judge failed, according to the appellant, was in finding the onus and standard of proof satisfied by the evidence adduced by the Crown.

[4] We are not satisfied that the conclusion reached by the trial judge was the product of impermissible speculation rather than reasonable inference. In our view, it was open to the trial judge to infer that the appellant was the unknown caller whose communications with the target, Aden, were intercepted under a Part VI authorization. It was also a reasonable inference from the substance of one of those intercepted communications that a prior transaction had taken place between the caller and Aden, even though it was not itself the subject of an interception on any of Aden's phones monitored during the investigation.

[5] In addition to the intercepts, the uncontroverted evidence was that the appellant entered Aden's vehicle on one side of Bloor Street, remained inside for about 30 seconds while the vehicle made a turn in heavy traffic, then got out on the other side of the street. The appellant, who was apprehended as she walked away from the vehicle, had $700 in her hand. For his part, Aden had 6.32 grams of heroin in his sock when he was arrested shortly after the appellant left the car.

[6] The trial judge considered several alternative inferences advanced by defence counsel at trial. After setting out those alternatives, the trial judge concluded:

I do not accept the alternative inferences suggested by the defence as "other plausible theories" or "other reasonable possibilities" based on logic and experience applied to the evidence, or absence of evidence.

[7] In our view, the trial judge was entitled to reject trial counsel's submissions about what counsel characterized as "alternative inferences". We agree that these alternatives were not reasonable inferences arising from the evidence, rather constituted impermissible speculation.

[8] In the result, the appeal from conviction is dismissed. The appeal from sentence is dismissed as an abandoned appeal.

David Watt J.A.

L.B. Roberts J.A.

Gary T. Trotter J.A.