Court of Appeal for Ontario

Date: 20211018 Docket: C67628

Before: Fairburn A.C.J.O., Doherty and Watt JJ.A.

Between: Her Majesty the Queen Respondent

And: Peter Cowan Appellant

Counsel: Chris Rudnicki, for the appellant Victoria Rivers, for the respondent

Heard: October 8, 2021 by video conference

On appeal from the conviction on a charge of possession of cocaine for the purpose of trafficking entered by Justice R. Khawly of the Ontario Court of Justice on August 16, 2019; and on appeal from the sentence of nine months imposed on November 8, 2019.

Reasons for Decision

[1] The appellant was convicted of possession of cocaine for the purposes of trafficking and received a sentence of 9 months. He appeals his conviction. If the conviction appeal fails, the appellant seeks leave to appeal his sentence and, if leave is granted, appeals his sentence. He asks the court to impose a conditional sentence.

The Conviction Appeal

[2] This was a simple single-issue trial. The appellant admitted he was in possession of a significant amount of cocaine when he was arrested. He also admitted that it had been packaged for resale. He testified, however, that all of the cocaine was for his personal use. Counsel argued the appellant should be convicted of the included offence of possession of cocaine.

[3] The appellant was arrested and found in possession, both on his person and in his vehicle, of about 64 grams of cocaine. Most of the cocaine had been separated and packaged into about 65 baggies, each containing a street-level quantity of that drug. In short, the quantity and the packaging of the cocaine found in the possession of the appellant strongly suggested he was in possession of the cocaine for the purposes of resale.

[4] Three days before his arrest, the appellant was under video surveillance by his employers, who suspected him of theft. The video surveillance captured the appellant meeting with several individuals in his vehicle at various locations. Generally speaking, each individual was in the appellant’s vehicle for a minute or two before leaving.

[5] In his evidence, the appellant acknowledged he used crack cocaine. He admitted he had possession of the cocaine seized from his person and vehicle. The appellant testified he purchased the cocaine from a dealer with whom he had some prior connection. The cocaine was already packaged in individual baggies ready for resale. The dealer explained to the appellant he had repossessed the drugs from one of his sellers when the seller had defaulted on payment. The dealer was driving north from Toronto to Muskoka and did not want to take the drugs with him in his vehicle. The dealer offered all of the cocaine to the appellant at a substantially reduced price.

[6] The appellant testified he purchased the drugs and took possession of them in their individual baggies. The drugs were, however, exclusively for his personal use.

[7] The appellant explained that the several meetings captured on the video surveillance related to his shoe resale business. Some involved the sale of shoes and others involved collecting money owed on the previous sale of shoes.

[8] The video surveillance appeared to show that two of the several people who met with the appellant in his vehicle may have been purchasing shoes. The appellant was a shoe hoarder and had literally hundreds of pairs of shoes in his apartment. The Crown did not allege any illegality relating to the appellant’s acquisition or resale of the shoes.

[9] The grounds of appeal on conviction arise out of the trial judge’s application of the burden of proof.

[10] When, as in this case, the appellant testifies and denies the allegation, the trial judge should approach the burden of proof by asking the three questions laid down in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (SCC):

• Does the trial judge believe the accused’s explanation?
• If the trial judge does not believe the accused’s explanation, does that explanation leave the trial judge with a reasonable doubt?
• If the evidence of the accused is not believed and does not leave the trial judge with a reasonable doubt, has the Crown proved guilt beyond a reasonable doubt based on the evidence the trial judge does accept?

[11] Counsel agree that, on the evidence, the outcome of the case turned on the answer to the first two questions posed in W. (D.). Counsel agree, and so do we, that if the evidence of the accused was rejected and did not leave the trial judge with a reasonable doubt, the remainder of the evidence established beyond any doubt that the appellant had possession of the cocaine for the purposes of trafficking.

[12] The trial judge indicated he did not believe the appellant’s evidence. He then turned to the second question posed in W. (D.) and asked whether the appellant’s evidence “could reasonably be true”.

[13] The phrase “could reasonably be true” should be avoided. It can imply that the accused carries the onus of demonstrating the existence of a reasonable doubt: see R. v. Rattray, 2007 ONCA 164, at para. 13. The ultimate question on appellate review is not, however, whether the trial judge used an inappropriate phrase, but whether the trial judge correctly applied the burden of proof.

[14] With respect to the first question – did the trial judge believe the accused – counsel for the accused at trial candidly and correctly acknowledged that the appellant’s denial that he had possession of the cocaine for the purposes of resale strained credulity in all of the circumstances. She urged the trial judge, however, to take into account the appellant’s apparent mental disorder when assessing his evidence.

[15] As has repeatedly been stated, this court must defer to credibility assessments made at trial. We see no error in the manner in which the trial judge assessed the credibility of the appellant’s evidence. The trial judge tested that evidence against the trial judge’s notions of common sense, human experience and logic. Triers of fact are required to do exactly that: R. v. Calnen, 2019 SCC 6, at para. 112.

[16] We do not agree that, in assessing the appellant’s evidence, the trial judge invoked negative stereotypes based on the appellant’s economic circumstances and lifestyle. Nor did the trial judge introduce “new considerations not arising from the evidence” into his fact-finding. The trial judge focused on the evidence. In his view, the appellant’s explanation as to how he came to be in possession of a significant amount of cocaine, packaged for resale, but intending to use all of the cocaine himself, was incredible.

[17] With respect to the second question posed in W. (D.) – does the accused’s evidence leave the trial judge with a reasonable doubt – we are satisfied, despite the inappropriate language used by the trial judge, that, on this record, the trial judge’s conclusion the appellant’s evidence could not reasonably be true was tantamount to a finding that he was not left with a reasonable doubt based on that evidence.

[18] The conviction appeal is dismissed.

The Sentence Appeal

[19] The appellant is not a Canadian citizen, although he has been in Canada for 26 years. He is subject to deportation on account of this conviction. The parties agree the trial judge misapprehended the potential likelihood of deportation if the appellant received a sentence of 6 months or more. They also agree that this misapprehension of a significant collateral consequence warrants a de novo assessment of the fitness of the 9-month sentence imposed by the trial judge.

[20] At the time of trial, the statutory minimum in place prohibited the granting of a conditional sentence. This court struck down the mandatory minimum in R. v. Sharma, 2020 ONCA 478. The appellant submits that a conditional sentence can and should be imposed.

[21] Crown counsel acknowledges that a conditional sentence is now available, but submits that the sentence was nonetheless fit. In the alternative, Crown counsel submits that if the sentence is varied, it should be varied to something slightly less than 6 months, to be followed by a period of probation.

[22] The appellant is, for all intents and purposes, a first offender. The circumstances of the offence indicate the appellant was engaged in low-level trafficking. His personal circumstances strongly suggest the appellant’s mental disabilities played a central role in the appellant ending up selling drugs from his vehicle. In our view, a conditional sentence with appropriate terms can serve the ultimate purpose of sentencing and properly reflect a consideration of the applicable sentencing principles.

[23] At the request of the court, counsel drafted suggested terms should the court decide to impose a conditional sentence. We are in substantial agreement with those terms.

[24] The sentence is varied to a conditional sentence of 12 months on the following terms. The appellant will:

a. Keep the peace and be of good behaviour; b. Appear before the court as directed; c. Report to a supervisor within 1 week after this court’s decision is released and thereafter as directed by the supervisor; d. Remain in Ontario, unless written permission to leave Ontario is first obtained from the court or the supervisor; e. Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation; f. Reside at an address approved by the supervisor; g. For the first 7 months of this order, remain in his residence at all times except, (i) between the hours of 12:00 p.m. to 4:00 p.m. on Sundays in order to acquire the necessities of life; (ii) for any medical emergencies involving the appellant or any member of his immediate family; (iii) while going directly to and from court appearances, religious services and legal, medical or dental appointments; and (iv) while going directly to, from and while at a place of work approved by the supervisor. h. For the last 5 months of this order, remain in his residence between the hours of 10:00 p.m. and 5:00 a.m., except for medical emergencies involving the appellant or a member of his immediate family; i. Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the supervisor and complete them to the supervisor’s satisfaction; j. Sign release forms as required to enable the supervisor to monitor the appellant’s attendance and completion of any assessments, counselling or rehabilitative programs; and k. Do not possess any weapons, as defined by the Criminal Code.

Conclusion

[25] The conviction appeal is dismissed. Leave to appeal sentence is granted, the appeal is allowed, and the sentence is varied in accordance with these reasons.

“Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”