Court of Appeal for Ontario

Date: 2019-07-05 Docket: C65628

Judges: Watt, Tulloch and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Raphael Magdales Appellant

Counsel

Ravin Pillay, for the appellant

Sarah Egan, for the respondent

Hearing and Release

Heard and released orally: June 27, 2019

On appeal from: the conviction entered on November 8, 2017 by Justice Alan D. Cooper of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of a single count of trafficking in cocaine, after a brief trial before a judge of the Ontario Court of Justice. The charges arose out of observations made by officers who had the appellant under surveillance and of items seized from automobiles under the control of the appellant and another man searched incident to the arrest of each.

[2] The appellant advances three grounds of appeal against the conviction recorded at trial. He says that the trial judge erred:

i. in finding that the only reasonable inference from the circumstantial evidence adduced at trial was that the appellant trafficked cocaine to another man, the sole occupant of a motor vehicle;

ii. in failing to provide sufficient reasons for his conclusion that the appellant's guilt had been established beyond a reasonable doubt; and

iii. in rendering a verdict that was unreasonable and unsupported by the evidence.

[3] In our view, none of the grounds of appeal advanced warrant our intervention.

[4] The trial judge was well aware that the case for the Crown consisted of circumstantial evidence. After referring to the requirements of R. v. Villaroman, 2016 SCC 33, the trial judge examined the evidence adduced at trial to determine whether, taken as a whole, that evidence excluded all reasonable inferences other than guilt.

[5] In reaching his conclusion about the adequacy of the evidence adduced to satisfy the rigours of Villaroman, the trial judge was cognizant of the absence of any forensic evidence linking the appellant to the bag containing the drugs seized from the alleged purchaser's motor vehicle on arrest and of any forensic evidence linking the alleged drug purchase to the currency found in the appellant's vehicle.

[6] The trial judge considered and rejected the principal reasonable inference advanced on the appellant's behalf at trial as incompatible with guilt. That inference was that the parties, or at least one of them (the purchaser) was lost and the purchaser sought directions from the appellant. This putative inference, which was unsupported by the evidence of either party, might better have been characterized as speculation. It was not incumbent on the Crown to negative every possible conjecture no matter how irrational or fanciful which might be consistent with the innocence of the appellant. Any other reasonable possibility advanced must be based on logic and experience applied to the evidence, or absence of evidence, not on speculation: Villaroman, at para. 37.

[7] It was open to the trial judge to conclude, that taken as whole, the evidence adduced met the Villaroman standard. It follows that this ground of appeal fails.

[8] Nor are we persuaded that the trial judge's reasons are insufficient to permit meaningful appellate scrutiny. This was a simple case. The witnesses were few. Their evidence was uncomplicated. The trial judge correctly identified the critical issue as whether the appellant transferred the baggie of cocaine, found on the floor of the other driver's vehicle on arrest minutes later, to that person. His reasons were brief. He could have said more. But that is not the test. By that standard, almost every set of reasons would get a failing grade. He said enough for our purposes. And that is all that counts.

[9] The final ground of appeal challenges the verdict as unreasonable. This claim we test by considering whether the conclusion reached is supportable on any reasonable view of the evidence adduced at trial: Villaroman, at para. 56. See also, R. v. George-Nurse, 2018 ONCA 515, at para. 26.

[10] For all practical purposes, rejection of the appellant's first ground of appeal determines this ground of appeal. Since we are satisfied that the trial judge's finding of guilt meets the standard required by Villaroman in cases which consist entirely or substantially of circumstantial evidence, we also conclude that the verdict cannot be set aside as unreasonable.

[11] The appeal from conviction is dismissed.

[12] The appellant did not appeal sentence. However, with the concurrence of the respondent, we would extend the time for him to do so, grant leave to appeal and allow the appeal from sentence, and set aside the victim surcharge ordered by the trial judge. The balance of the sentence imposed, including any ancillary orders, shall remain intact.

"David Watt J.A."

"M. Tulloch J.A."

"P. Lauwers J.A."