COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DeMarco, 2020 ONCA 718

DATE: 20201112

DOCKET: C67607

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cynthia Denise DeMarco

Appellant

Cynthia Denise DeMarco, acting in person

Joe Wilkinson, appearing as duty counsel

Anna Martin, for the respondent

Heard: November 3, 2020 by video conference

On appeal from the conviction entered on May 10, 2019 and the sentence imposed on September 30, 2019 by Justice G. Mark Hornblower of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of possession for the purposes of trafficking in heroin and in fentanyl pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2). She was also convicted of possession of methamphetamine contrary to s. 4(1) of the Act. She was sentenced to two years’ imprisonment, concurrently, for each of the trafficking charges and 30 days’ imprisonment, concurrently, for the possession charge.

[2] On the conviction appeal, the appellant asserts that she did not have knowledge or control of the drugs and drug paraphernalia seized from her apartment, making her conviction wrongful.

[3] The trial judge’s reasons are short but complete. The police were investigating the appellant’s boyfriend, Jonathan Hughes, for drug trafficking. She lived with him in an apartment that she rented. The police obtained a search warrant for the apartment and executed it on January 9, 2018. They found sufficient quantities of heroin and fentanyl in Mr. Hughes’ possession to evidence a trafficking operation. They also seized the cellphones of Mr. Hughes and the appellant. The amount of methamphetamine found in the apartment did not substantiate trafficking but only possession. The appellant was present at the time of the execution of the search warrant. Various items of drug paraphernalia and methamphetamine were found in her room, and she was charged along with Mr. Hughes.

[4] Based on expert opinion evidence, the trial judge found “overwhelming evidence that fentanyl and heroine were being trafficked from that residence and that the amount of drugs found therein were for the purpose of trafficking.” He also relied on the combined effect of the surveillance carried out by police in the days before the execution of the search warrant and the drugs and drug paraphernalia they found upon entry, including evidence that two monitors in the apartment were connected to a private surveillance system installed on the exterior walls of the building.

[5] The trial judge considered whether there was any evidence that the appellant was personally in possession of those substances for the purpose of trafficking. He noted:

The fact that Hughes is involved does not necessarily implicate Ms. DeMarco. No drugs were found on Ms. DeMarco. Syringes with methamphetamine, a scale, a rubber band and alcohol wipes were all found on her bed; a night table in her room and in a purse that was in that room. Ms. DeMarco denies any knowledge of the drugs and paraphernalia found in her room, as well as any knowledge of the drugs found [in] Hughes’s possession.

[6] At trial, the appellant admitted that as of December 8, 2017 – a month before the search of her apartment – she was fully aware that Mr. Hughes was trafficking drugs and using her home for that purpose. A text message she sent Mr. Hughes that day (among others) made this clear:

and have fun finding a place to keep your shit and to sell your drugs out of, because I’ll be damned if I’m going to keep heating my fucking house out and putting my freedom in jeopardy …

[7] However, she testified that in the period between December 8, 2017, and the search on January 9, 2018, she and Mr. Hughes had broken up, and he was in rehab and no longer dealing drugs.

[8] The trial judge found the appellant not credible and concluded that the Crown had proven beyond a reasonable doubt that she was aware that Hughes possessed drugs for sale from her residence. He gave a number of reasons for so concluding.

[9] First, the appellant was in her apartment with Mr. Hughes when the police arrived and had to have been fully aware of the drugs in it, as well as the methamphetamine in her room. The trial judge did not believe her testimony that the police had rearranged certain items in her room, including her purse.

[10] Second, the appellant testified that the purpose of the private surveillance system in her apartment was to provide security for the backyard area from which her bicycle had been stolen. However, the trial judge noted, the camera was not focused on that area, and its presence was not advertised in any way that might frighten potential thieves. Instead, the camera was focused on the entry area to the unit, allowing surveillance of who came to the door. To this we would add that the surveillance system was connected to screens in Mr. Hughes’ bedroom and the living room, and that the fire escape door could only be opened from the inside, again consistent with an active drug trade.

[11] Third, police surveillance in the several days before the search warrant was executed showed numerous individuals going to the residence for short visits and leaving shortly thereafter, consistent with the sale of drugs from that residence. At trial, the appellant explained the visits on the basis that the visitors wanted to cheer up Mr. Hughes, who was not particularly well at the time.

[12] Fourth, the appellant testified that the large amount of cash found on Mr. Hughes was to pay overdue rent and a hydro bill. The trial judge found that this testimony was “largely self-serving, or convenient,” and that the presence of such a large amount of cash was consistent with a drug trafficking operation.

[13] The trial judge concluded, based on the evidence summarized above, that the appellant “was aware that Hughes possessed drugs for sale from her residence.” In the trial judge’s view: “That knowledge is sufficient to establish the requisite degree of knowledge and control of the drugs for the purpose of trafficking,” leading to convictions on those charges.

[14] On appeal, duty counsel argues that the text messages on Mr. Hughes’ cellphone evidencing drug transactions were hearsay statements adduced for the truth of their contents and presumptively inadmissible. Trial defence counsel did not object to the admission of these statements.

[15] It is correct that the trial judge referred to Mr. Hughes’ texts to persons other than the appellant and said that they made it clear he was selling drugs in the days before the search (the “Impugned Statement”). However, the Impugned Statement must be read in context. It came as part of the trial judge’s assessment of the credibility of the appellant’s assertion that between December 8, 2017, and January 9, 2018, Mr. Hughes had gone into rehab and to her knowledge was no longer selling drugs. Before making the Impugned Statement, he said, “That explanation, however, flies in the face of reality.” Even if the trial judge erred in considering the texts for the truth of their contents, given the evidence set out above, that error was not overriding.

[16] The appellant has not established that the trial judge made any palpable and overriding error of fact, or any overriding legal error. The conviction appeal is dismissed.

[17] In terms of the sentence appeal, we make three points. First, neither duty counsel nor the appellant made submissions on this at the oral hearing of the appeal. Second, Mr. Hughes pleaded guilty to one trafficking charge in exchange for the withdrawal of the other charges against him and received a sentence of four years. Third, in relation to the appellant, the Crown sought a three-year penitentiary term, expressly noting that she was not the principal actor in the offences. The defence submitted that a two-year sentence would be appropriate, which the trial judge accepted. He reasoned that although the appellant did not play an active role in trafficking the drugs, she provided some degree of safety and security for Mr. Hughes and a place from which he could sell these very serious drugs.

[18] In her written material, the appellant argues that the trial judge failed to give adequate weight to her clean record and her previous history as a law-abiding citizen.

[19] We do not agree.

[20] The trial judge noted that the appellant was a relatively youthful first offender with some prospect of rehabilitation. However, despite being bright and capable, with some academic strengths and positive future goals, she had abused drugs and let herself be led astray by a “negative and criminal peer group.”

[21] The trial judge expressed grave concern about trafficking in fentanyl and its effects in our society as an aggravating factor. In considering the question of proportionality, the trial judge noted his view that the four-year sentence for Mr. Hughes was on the light side.

[22] The trial judge made no error in the sentencing principles he applied. Deference is due to his decision, based on R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 48.

[23] Leave to appeal sentence is allowed but the sentence appeal is dismissed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”