Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240513 DOCKET: C69849

van Rensburg, Thorburn and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Gianluca Salvati Appellant

Counsel: Mayleah Quenneville, for the appellant Geoffrey Roy, for the respondent

Heard: April 23, 2023

On appeal from the convictions entered on September 29, 2020 by Justice Patrick J. Monahan of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of multiple drug offences, one count of possession of proceeds of crime, and one count of breaching a bail recognizance. He appeals against his convictions only. At the hearing, we dismissed his appeal with reasons to follow. These are those reasons.

[2] The appellant’s grounds of appeal can be grouped into two main categories. The first set of grounds relate to his convictions on the drug offences and the possession of proceeds of crime count. The second set consists of a challenge to his conviction on the breach of recognizance charge. We will address both sets of grounds in turn.

A. The drug and possession of proceeds of crime convictions

[3] The appellant was arrested during the execution of a residential search warrant. After obtaining the warrant, the police watched the house and waited for the appellant to come home. He eventually arrived with two other people and entered the house. The police entered the residence to execute the warrant a short while later.

[4] They found the appellant upstairs, and six other people on the main floor. In the upstairs bathroom, they found a Ziploc bag in plain view on the vanity, containing several smaller baggies of cocaine, crack cocaine and fentanyl, as well as a small digital scale. They also found a cell phone on the bathroom floor. When the police arrested the appellant and searched him incident to the arrest, they found more than $2,000 cash on his person. This was the basis for the possession of proceeds of crime count.

[5] The appellant’s position at trial was that the evidence did not prove that he had constructive possession of the drugs the police found in the upstairs bathroom. He acknowledged that if his possession of these drugs was established, it could be inferred that he had possessed them for the purpose of trafficking. It was also common ground at trial that the inference that the cash found on the appellant’s person was proceeds of crime depended on the Crown proving his possession of the drugs found in the bathroom.

[6] The only bathrooms in the house were on the second floor and in the basement. The police found a health card and a bail recognizance in the appellant’s name in one of the basement bedrooms.

[7] Two of the six people on the main floor of the house were also arrested after they were found to have drugs on their person. One also had a digital scale, and the other had a handgun.

[8] The Crown’s theory was that after the appellant entered the house, he went upstairs to use the toilet, and put his bag of drugs on the bathroom vanity. This theory was based on six main bodies of evidence.

[9] First, the appellant was the only person in the house who was upstairs when the police entered. Second, “human waste” was observed in the upstairs bathroom toilet, suggesting that it had recently been used. Third, the first officer who went up to the second floor, DC Petrakis, testified that he first saw the appellant standing at the threshold of the bathroom door, and believed the appellant was coming out of the bathroom. Fourth, DC Petrakis testified that after he and the appellant made eye contact, the appellant turned as if he was trying go into the bathroom. Fifth, DC Neill, who was the second officer to go upstairs, testified that when he first saw the appellant, which was after DC Petrakis had taken him to the floor and was handcuffing him, the belt buckle of the appellant’s pants was undone. Sixth, Det. Margetson, who was qualified to give opinion evidence about the “modus operandi of [drug] traffickers and distributors”, testified that he would not expect someone to leave a bag of drugs in plain view in a common area of a house.

[10] The defence position was that it was a reasonable alternative possibility that some other person had gone upstairs to use the bathroom before the police arrived and had left the bag of drugs on the vanity, and that the appellant then went upstairs for some other reason, and did not know about or have control over the bag of drugs in the bathroom.

[11] The trial judge concluded that “the inescapable inference” arising from the evidence as a whole was “that [the appellant] must have put the drugs on the vanity of the second-floor washroom”.

[12] The appellant challenges this factual finding on several related bases. His primary position is that the verdicts against him on the possession charges were unreasonable because the evidence did not rule out the defence’s proposed alternative scenario beyond a reasonable doubt. In the alternative, he argues that the trial judge gave insufficient reasons for his factual findings. In support of both of these arguments, the appellant contends that the trial judge misapprehended certain evidence and reversed the burden of proof.

[13] We would not give effect to any of these arguments.

[14] Starting with the trial judge’s alleged misapprehensions of the evidence, we are not persuaded that any such misapprehensions have been established.

[15] We appreciate that DC Petrakis’s evidence alone did not rule out the possibility that the appellant had been coming out of a nearby upstairs bedroom, rather than out of the bathroom. We also agree that Det. Margetson’s evidence about the usual practices of drug dealers left open the possibility that one of the other people in the house might have accidentally left the bag of drugs in plain view in the bathroom.

[16] However, the trial judge correctly instructed himself that his task was to consider the circumstantial evidence as a whole. He carefully examined the possibility that DC Petrakis had been mistaken when he formed the belief that the appellant had been coming out of the bathroom, rather than out of a bedroom, but concluded that this latter scenario could be dismissed as “implausible and inconsistent with the totality of the evidence”. In making this finding, he expressly adverted to Det. Margetson’s evidence that people make mistakes and do things that are unexpected. The trial judge ultimately found as fact that when “[DC] Petrakis first saw [the appellant], the latter was standing in the doorway of the washroom”. This factual finding is entitled to appellate deference.

[17] The trial judge did make one comment in his reasons that, considered in isolation, could be read as suggesting that he misapprehended the evidence about which officer saw the appellant’s belt unbuckled. However, his reasons as a whole show that he correctly understood that this observation had been made by DC Neill, and not by DC Petrakis. The trial judge accepted DC Neill’s evidence on this point, and found as fact that the appellant’s “belt was in fact unbuckled at the time of his arrest”, which was when DC Neill first saw him.

[18] Finally, the appellant argues that the trial judge misapprehended the evidence about how much time passed between the appellant going into the house and the police entering to execute the search warrant. This bore on the disputed issue of whether the appellant would have had time to go upstairs and use the bathroom before the police entered.

[19] The trial judge considered all of the evidence on this issue, including DC Sukhram’s testimony that he ordered his team to begin executing the search warrant “within seconds” of the appellant going into the house, along with the evidence that the searching officers would have then required some time to move into position. He concluded from the evidence as a whole that the appellant “had sufficient time to enter the washroom on the second floor and place the drugs on the vanity prior to the police takedown”. We are not persuaded that this finding of fact is tainted by any palpable and overriding error.

[20] Turning to the appellant’s second argument, that the trial judge reversed the burden of proof, we are not persuaded that this error has been made out. To the extent that this argument is based on the trial judge’s observation that “it is necessary that a finding of guilt be the only reasonable inference that the evidence, or the lack of evidence, permits”, we are satisfied that the trial judge did not mean to imply that a finding of guilt could be directly based on “the lack of evidence”. Rather, having regard to his reasons as a whole, including his repeated self‑instruction that a reasonable doubt could arise either from the evidence or the absence of evidence, we are satisfied that all the trial judge meant was that he could not find the appellant guilty if the absence of evidence left him with a reasonable doubt.

[21] To the extent that the appellant’s argument that the trial judge reversed the burden of proof is based on the structure of his reasons, in which he stated his conclusions first before explaining the reasoning that led him to these conclusions, this complaint has no merit. Putting the conclusion first is a common practice that often makes written decisions easier for the reader to follow. Doing this does not in any way imply that the judge has pre-determined the issue.

[22] We also see no basis for the appellant’s complaint that the trial judge’s reasons were insufficient. He gave detailed reasons that clearly set out his findings of fact and explained why he made these findings. They fully achieved the main functions of judicial reasons: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11.

[23] Finally, we do not agree with the appellant’s overarching argument that the verdicts against him on the possession charges were unreasonable. As usual in a circumstantial case, some of the individual items of evidence linking the appellant to the drugs in the bathroom were inconclusive when considered in isolation. However, as with any case based on circumstantial evidence, the question for the trial judge was whether the evidence as a whole eliminated all other reasonable possibilities. The trial judge properly considered this question and concluded that the inference of guilt was the only reasonably available circumstantial inference on all of the evidence. That was a conclusion he was entitled to reach, on his assessment of the evidence.

B. The breach of recognizance conviction

[24] The appellant also challenges his conviction on the breach of recognizance charge, arguing that the trial judge erred by admitting into evidence a photocopy of the appellant’s bail recognizance as proof that the appellant, at the time of his arrest, was subject to a bail order with certain terms. The appellant does not dispute that if the existence of this bail order was properly established, the other evidence proved beyond a reasonable doubt that he had breached the term of this bail order that required him to remain in the presence of his surety.

[25] At trial, the Crown sought to tender as evidence an uncertified photocopy of the bail recognizance. The defence objected that the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and argued further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule, on the basis that a photocopy was not an “original record”. In response, the Crown submitted that the photocopy should be admitted under the principled exception to the hearsay rule. The trial judge agreed, and admitted the photocopy on this latter basis.

[26] On appeal, the appellant contends that the trial judge erred by relying on Crown counsel’s submissions to find that the necessity requirement of the principled exception had been established, and accordingly erred by admitting the document into evidence.

[27] The respondent agrees that in the circumstances of this case it was procedurally unfair for the trial judge to rely on the Crown’s submissions without giving the defence an opportunity to argue about whether the prosecution could rely on these submissions to establish necessity. However, the respondent argues that the photocopy was properly admissible on another legal basis that would not have required the Crown to establish necessity.

[28] We agree with the respondent that the photocopy was properly admissible under the common law public or judicial documents exception to the hearsay rule: see R. v. A.P. (1996), 109 C.C.C. (3d) 385, at p. 390; R. v. W.B.C. (2000), 142 C.C.C. (3d) 490, at para. 32.

[29] The appellant’s argument at trial was that the photocopy was not admissible under this exception because it was not the “original” document that had been signed by the Justice of the Peace. However, the argument that the public or judicial documents exception does not apply to copies was rejected by this court in W.B.C., where Weiler J.A. explained at para. 39 (underlining added):

Another aspect of reliability is the need to establish the authenticity of the document. To be admissible at common law, the judicial document in question must be either (1) the original record; or (2) an exemplification of that record under the seal of the court: R. v. Tatomir (1989), 51 C.C.C. (3d) 321 (Alta. C.A.) at 327, citing Ewart, Documentary Evidence in Canada (1984), at 183, and Archbold: Criminal Pleading, Evidence and Practice, 43rd ed. (1988), at 1055. What is meant by “the original record”? Wigmore states that it has nothing to do with whether the writing in question was the "original" or "a copy". Rather, what is meant is that the written text itself must be offered as opposed to testimony about it. Wigmore concludes at vol. 4, pp. 547-9, para. 1232 of his treatise on Evidence:

Thus the terms “copy” and “original” being purely relative to each other, have no inherent relation to the present rule, and the term “original” has no real significance in indicating which paper it is (of all possible papers) whose production is required by the rule.

In order to state the rule, then, in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved in the state of the issues. Whether or not that document was written before or after another, was copied from another, or was itself used to copy from, is immaterial. [Emphasis in original.]

[30] In the case at bar, there was evidence already in the trial record that circumstantially confirmed the authenticity of the photocopy. The Crown put into evidence certified copies of four Informations that showed that the appellant had indeed entered into a new bail order on August 28, 2018, which was the date shown on the photocopied recognizance. Moreover, photos taken by the police during their search of the house show what appears to be another copy of the same recognizance, seemingly identical except for a “copy” stamp, that was found in one of the basement bedrooms, along with a copy of the appellant’s health card.

[31] Importantly, the defence at trial did not make any substantive challenge to the authenticity of the photocopy, but simply argued that it was inadmissible under the public or judicial documents exception because it was not an “original”. The trial judge seems to have accepted this argument, and for this reason chose to instead admit the document under the principled exception, which required the Crown to establish both necessity and threshold reliability. In view of W.B.C., this latter step was unnecessary.

[32] The Crown submits that although the trial judge admitted the photocopy of the recognizance on the wrong legal basis, we should uphold the appellant’s conviction on the breach of recognizance charge by invoking the curative proviso. We do not find it necessary to resort to the curative proviso in these circumstances. Unlike the situation in W.B.C., the trial judge did not erroneously admit otherwise inadmissible evidence, but merely admitted evidence on one legal basis that was properly admissible for the same purpose on a slightly different legal basis. In our view, his decision to admit the photocopy into evidence for the truth of its contents was not a “wrong decision on a question of law” that would have required a new trial unless the curative proviso can be applied.

[33] Were it necessary to do so, however, we would have applied the curative proviso. The trial judge’s decision to admit the document under the principled exception without giving the appellant a fair opportunity to respond to the Crown’s position on the issue of necessity did not cause him any substantial wrong or miscarriage of justice, since the document was properly admissible under a traditional hearsay exception that did not require the Crown to establish necessity.

C. Disposition

[34] For these reasons, we dismissed the appellant’s appeal.

“K. van Rensburg J.A.”

“Thorburn J.A.”

“J. Dawe J.A.”