COURT OF APPEAL FOR ONTARIO

CITATION: R. v. An, 2015 ONCA 799

DATE: 20151120

DOCKET: C58774 & C58307

MacPherson, Tulloch and Pardu JJ.A.

C58774

BETWEEN

Her Majesty the Queen

Respondent

and

Richard An

Appellant

C58307

AND BETWEEN

Her Majesty the Queen

Respondent

and

Justin Li-Tin-Po

Appellant

Patrick Metzler, for the appellant, Richard An

Patrick Ducharme and Christopher Tarach, for the
    appellant, Justin Li-Tin-Po

Ian Bell and Brendan Gluckman, for the respondent

Heard: November 17, 2015

On appeal from the conviction entered by Justice Michael
    Block of the Ontario Court of Justice on December 6, 2013.

ENDORSEMENT

[1]

The appellants, Richard An and Justin Li-Tin-Po, appeal their
    convictions for trafficking cocaine and possessing the proceeds of crime. They
    were convicted following a three-day trial. They argue on appeal that the
    convictions are unreasonable and cannot be supported by the evidence.

[2]

The appellants were arrested as part of a police investigation called
    Project Daring. As part of this project, the police targeted and arrested another
    man, Rory Smith, on June 16, 2010. Approximately one kilogram of cocaine was
    found on his person and in his home. Based on intercepted text messages, phone
    calls, and police surveillance, the police believed he was supplied with the
    cocaine on June 15, 2010, and was to pay the balance owed to his supplier on
    June 17, 2010.

[3]

After Smiths arrest, police used his cell phone to communicate with the
    suspected supplier. They arranged to meet on the evening of June 17 on Melissa
    Crescent, in Whitby, where the drug transaction occurred two days prior.

[4]

On June 17, the appellants were arrested in a car on Melissa Crescent.
    The appellant An was driving and the appellant Li-Tin-Po was in the passenger
    seat. Between their seats was the main cell phone used to communicate with
    Smith. This number was saved as Jus in Smiths cell phone. Also in the car
    was a second cell phone used to communicate with Smith around the time of the
    June 15 meeting. This number was identified in Smiths cell phone as J Boy.
    There were four other cell phones in the car with the appellants. In the back
    seat, the police found $10,050 in a gym bag.

[5]

The trial judge found, based on the circumstantial evidence, that the
    two defendants supplied cocaine to Smith on June 15 through a courier. Smith
    was observed carrying a blue and white bag after that meeting. The trial judge
    found it highly likely that this bag was the same bag found containing
    cocaine in Smiths garage. This meeting took place on Melissa Crescent. The
    Jus and J Boy cell phones found in the appellants possession were used for
    the exchange on June 15 and also to organize the meeting for payment on June
    17. He determined that there was no other rational explanation available on the
    evidence before him. Further, the circumstances surrounding the gym bag left no
    potential explanation other than that the sum was the proceeds of crime.

[6]

A verdict is unreasonable or cannot be supported by the evidence when
    the verdict is one that a properly instructed jury acting judicially could not reasonably
    have rendered:
R. v. Biniaris
, 2000 SCC 15, [2001] 1 S.C.R. 381, at
    para. 36. This is equally applicable to the judgment of a judge sitting without
    a jury:
Biniaris
, at para. 37.

[7]

In our view, the finding of guilt was reasonable.

[8]

The evidence considered as a whole supports the conclusion that the drug
    transaction took place on June 15 at Melissa Crescent. The bag containing
    cocaine and found in Smiths garage on June 16 is likely the same blue and
    white bag that the police observed Smith with when he returned home from the
    Melissa Crescent meeting.

[9]

The timing and content of Smiths text messages leave no doubt as to the
    nature of this meeting. Only the Melissa Crescent meeting is consistent with
    the text messages between Smith and J Boy. Expert evidence led by the Crown
    also established that Jus and Smith were discussing a cocaine transaction in
    text messages from June 13 to June 15.

[10]

The
    text messages show that Jus sent his courier to bring Smith a whole  one kilogram
    of cocaine  on the evening of June 15. Smith was arrested with approximately
    one kilogram of cocaine.

[11]

Shortly
    after the Melissa Crescent meeting, Jus inquired how much money Smith had
    sent. Smith indicated that he had paid the courier $14,000 and would pay the
    remainder on Thursday. This is strong evidence supporting the finding that the
    June 15 Melissa Crescent meeting was a drug transaction.

[12]

On
    June 17, a Thursday, Jus initiated a conversation with Smith, asking him:
    Time? The police, posing as Smith, proposed the same spot. The text messages
    indicate that Jus thought this may mean the Mall. The police then specify
    Melissa. When Jus questions this, the police specify ya where I met your
    boy. There is then agreement on Melissa. Though Jus is initially confused
    and perhaps unfamiliar with the location being proposed, it is important to
    note that the police never provided a further description of Melissa that
    would have led the appellants to Melissa Crescent in Whitby. Any uncertainty is
    then removed when the police refer to the past meeting with the courier.

[13]

The
    appellants arrived at the scheduled time and place. The police observed the
    appellants and believed they were texting while waiting for Smith to arrive. Text
    messages between Jus and Smiths cell phone correspond with the police
    observations of the appellants location and activities.

[14]

The
    appellants were found with the "Jus" and "J Boy" phones in the car, along with four other phones and the money. The "Jus" phone was between the driver and passenger seats, and the "J Boy" phone was in the center console. The presence of six cell phones and over $10,000 in cash in the car provides further support for the conclusion that the appellants were involved in trafficking cocaine.

[15]

The
    appellants question whether physical possession of the cell phones and
    knowledge of the texts can be attributed to either appellant when there was
    another person in the car. The Crown cites Sharpe J.A. in
R. v. Dell
(2005), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35, for the proposition that,
    when considering the reasonableness of a verdict, an appellate court is entitled
    to treat an appellant's silence as indicating that the appellant could not
    provide an innocent explanation of his or her conduct.

[16]

The
    appellants failure to provide an innocent explanation at trial undermines the
    alternative inferences they now advance in their submissions. Neither appellant
    called a defence to challenge the Crowns theory and evidence.

[17]

The
    cell phones, the money, and, in particular, the text messages, established a
    strong circumstantial case. The conclusion that the two were parties to the
    June 15, 2010 trafficking of cocaine to Smith and that they were in possession
    of the proceeds of crime was reasonable.

[18]

Finally,
    the appellants also argued on appeal that the trial judge misapprehended
    various pieces of evidence. A misapprehension of the evidence will constitute a
    miscarriage of justice if the trial judge was mistaken as to the substance of
    material parts of the evidence, and those errors played an essential part in
    the reasoning process:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193
    (Ont. C.A.), at p. 221. The Supreme Court of Canada in
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4, emphasized that
Morrissey
described a stringent standard. The misapprehension must go to the substance
    rather than to the detail, and must be material rather than peripheral to the
    reasoning of the trial judge. The errors must play an essential part in the
    reasoning process resulting in a conviction.

[19]

It
    is acknowledged by the Crown that the trial judge erred in describing the
    location of the J Boy phone in the car. He said it was on the right front dash,
    when it was actually in the center console. He also erred in saying that Smith
    brought the bag into his garage after the Melissa Crescent meeting on June 15,
    2010. Police observed Smith entering the front door of his house. We do not
    believe that these mistakes were material to the trial judges reasoning.

[20]

For
    these reasons, the appeal is dismissed.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bediako, 2015 ONCA 788

DATE: 20151119

DOCKET: C59029

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richmond Bediako

Appellant

Danielle Robitaille and Samuel Walker, for the appellant

Christine Tier, for the respondent

Heard: July 2, 2015

On appeal from the conviction entered on March 5, 2014
    and the sentence imposed on March 7, 2014 by Justice Thomas J. Carey of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

A.      Overview

[1]

The appellant, Richmond Bediako, was convicted of three counts related
    to his possession of an unauthorized, prohibited firearm and cartridge magazine.

[2]

The appellants conviction followed the dismissal of his application under
    s. 24(2) of the
Canadian Charter of Rights and Freedoms
to
    exclude at his trial the evidence of the loaded firearm. This firearm was obtained
    in alleged breach of the appellants rights under ss. 7, 8 and 9 of the
Charter
as a result of the appellants arrest and the subsequent warrantless search incident
    to his arrest that was conducted by the Windsor Police Services on January 29,
    2013.

[3]

The appellant was sentenced to a global term of imprisonment of four
    years, less credit for 403 days of pre-trial custody, allowed on a 1.25 times
    basis as 500 days.

[4]

The appellant appeals his conviction and seeks leave to appeal his
    sentence.

B.      Conviction appeal

i.        The Constitutionality of the Appellants Arrest
    and Search

[5]

The main argument on this appeal is that the trial judge erred in finding
    that the police had reasonable and probable grounds on an objective basis to
    arrest and without a warrant subsequently search the appellant incident to his
    arrest. The appellant does not contend that the police lacked the requisite
    subjective belief that the appellant was in unlawful possession of a firearm.

[6]

The appellant and his associate were arrested by the police on January
    29, 2013 at around 11:06 p.m., after they left the apartment of a known drug
    user named William Newbold or Beard, entered a taxicab, and travelled a short
    distance west. During the subsequent roadside search of the appellant, the
    police discovered that the appellant had a loaded .40 calibre Smith and Wesson
    handgun tucked into his belt and that he was wearing a bulletproof vest.

[7]

In accordance with the provisions of s. 495 of the
Criminal Code
and the criteria articulated by the Supreme Court of Canada in
R. v. Debot
,
    [1989] S.C.J. No. 118, at para. 53, the trial judge correctly instructed
    himself on the proper test to be applied in determining whether the police
    subjectively believed that they had reasonable and probable grounds to arrest
    the appellant for possession of a firearm, and that those grounds were
    objectively reasonable in the totality of the circumstances.

[8]

In particular, the trial judge carefully and thoroughly analyzed the strengths
    and weaknesses of the information provided by the confidential informants and
    of the confidential informants themselves and, having considered the totality
    of the circumstances, found the confidential informants and their information to
    be compelling, credible and corroborated.

[9]

The trial judge also determined that the police did not act prematurely
    in arresting the appellant and his associate: the potential loss of evidence if
    the appellant and his associate were allowed to leave the contained area of the
    taxicab and the danger to the public and police because of the likely presence
    of firearms justified the arrest and the subsequent warrantless search of the
    appellant incident to his arrest.

[10]

We
    agree with the trial judges analysis and conclusions.

[11]

We
    do not agree with the appellants submission that the police acted prematurely on
    dated, generic information or that the police failed to take any steps to
    corroborate the confidential informants information.

[12]

The
    appellants arrest followed the receipt by the police of specific and current
    information from confidential informants concerning the particular location and
    movements of individuals who turned out to be the appellant and his associate, a
    detailed physical description of them, and the corroboration by police surveillance
    on January 29, 2013 of important details of the information provided by the
    confidential informants.

[13]

Further,
    given the similarity in their information, the police also confirmed that the
    first two confidential informants were not the same person. Moreover, some of
    the information provided by the confidential informants was already known to
    the police from previous investigations and the police also attempted to corroborate
    the information received through earlier surveillance and a review of police
    databases.

[14]

Specifically,
    the police learned first-hand and acted upon distinctive, detailed information from
    a reliable, confirmed confidential informant (Confidential Informant A) who
    was involved in the drug subculture, had no convictions for perjury or
    misleading police, and had provided assistance to the police in the past that
    had resulted in the execution of search warrants, arrests and seizures. Confidential
    Informant A advised that two individuals named Leo and Shane were selling
    crack cocaine at Beards place, the Wyandotte address of William Newbold, a
    drug user whose name, address and uniquely bullet-ridden door were previously known
    to the police; Leo and Shane were always wearing bullet proof vests and
    carrying guns; they were staying in the west end of Windsor; Shane was
    described as a black male, 25 years of age, 170 pounds, 5 feet, 10 inches tall,
    with a scruffy beard and short black hair.

[15]

The
    particular information that Leo and Shane were selling drugs from Beards
    place, Leo and Shane had both been seen with vests and guns, as well as
    the physical description of Shane, was confirmed by a second confidential
    informant (Confidential Informant B) through his handler, an OPP officer. Confidential
    Informant B knew Leo and Shane and further provided the description of
    Leo as an Iraqi male, 24 years of age, 6 feet tall, 250 pounds. Confidential Informant
    B was reliable and confirmed: his handler had known him for a number of years; Confidential
    Informant B had no convictions for perjury or misleading the police;
    information provided by this informant had resulted in CDSA warrants, arrests
    and charges being laid with drugs being seized.

[16]

Further
    confirmation of some of the information provided by Confidential Informants A
    and B came from a third confidential informant (Confidential Informant C) who
    described Leo, also known as Abdul, as being of Iraqi background, of
    youthful appearance, namely, about 19 years of age, and 6 feet tall, and
    advised that Leo was selling cocaine from Beards place. Confidential
    Informant C also related the unusual, specific detail that Leo took a taxicab
    to and from Mr. Newbolds residence on Wyandotte from his residence on Peter
    Street, west of Wyandotte.

[17]

The
    police did not arbitrarily or precipitately arrest the appellant and his
    associate but waited until police surveillance on January 29, 2013 confirmed
    important identifying details provided by the three confidential informants.

[18]

During
    the surveillance conducted between 8:30 and 11:06 p.m., the police observed
    various individuals coming and going in the area of Beards place but did not
    move to arrest any of them. The police waited until they noted a taxicab pull
    into the alley behind Mr. Newbolds building at 11:04 p.m. and saw a black male
    (the appellant) and a white male (the appellants associate), roughly matching
    the descriptions provided by the confidential informants, enter and then leave Mr.
    Newbolds building. The police then conducted additional surveillance to
    confirm whether the taxicab would travel west of Wyandotte, which it did,
    confirming the information that Leo and Shane resided in the west part of
    Windsor. It was at this point that the police arrested the appellant and his
    associate in a high risk takedown at the intersection of Peter Street and
    Rosedale Avenue.

[19]

The
    trial judge properly viewed the evidence of the grounds for arrest in the
    context of the dynamics of an urgent situation likely involving firearms. He
    correctly concluded that in these circumstances, based on the information that
    the police had received and the surveillance which confirmed some material details
    about the appellant, his associate, and their activities, the police had
    objectively reasonable and probable grounds to arrest the appellant and his
    associate and then to search the appellant incident to his arrest.

ii.       The s. 24(2) Charter Analysis

[20]

Even
    though the trial judge found no
Charter
breach, he went on to conduct the
    s. 24(2)
Charter
analysis. The trial judge recognized that if there
    had been a breach, it would have had a significant impact on the appellants
    privacy rights. However, he concluded that any such breach was at the lower end
    of the spectrum and was neither flagrant nor deliberate. He determined that
    excluding the real evidence of the firearm and ammunition would have a negative
    impact on the long term reputation of the administration of justice, and that
    the concerns for public safety and the public interest in a trial on the merits
    of the very serious charges against the appellant outweighed the appellants
    privacy rights in the circumstances of this case.

[21]

The
    appellant contends that the trial judge erred in his s. 24(2)
Charter
analysis and that the evidence discovered as a result of the police search of
    the appellant should have been excluded from the evidence at the appellants
    trial.

[22]

We
    find that the trial judge properly balanced all of the well-known elements of
    the analytical framework set out in
R. v. Grant
, 2009 SCC 32,

and,
    for the reasons that he expressed with which we agree, correctly determined
    that the loaded firearm found tucked into the appellants belt should not be
    excluded.

[23]

For
    these reasons, we agree with and find no basis to interfere with the trial
    judges decision.

C.      Sentence appeal

[24]

The
    trial judge gave the appellant credit of 500 days on a 1.25 times basis for the
    402 days that he had spent in pre-trial custody. The parties agree that the
    appellant should have received credit of 603 days for the 402 days of his pre-trial
    custody on a 1.5 times basis, in accordance with
R. v. Summers
, 2014
    SCC 26, that was released following the imposition of the sentence in this
    case.

[25]

We
    agree that the appellant should be given the enhanced credit on a 1.5 times
    basis, which amounts to a reduction in his sentence of 103 additional days.

[26]

The
    appellant further argues that notwithstanding the enhanced credit for pre-trial
    custody, the sentence imposed is still demonstrably unfit and should be
    reduced.

[27]

We
    disagree. The trial judge properly considered that the principles of
    denunciation and deterrence must be given substantial weight in sentencing the
    appellant for his gun-related offences, especially in light of the appellants aggravating
    prior gun-related convictions. The trial judge also expressly took into account
    the appellants mitigating factors of youth, family support, and his potential
    for rehabilitation.

[28]

The
    sentence imposed reflects the trial judges proper balancing of all the relevant
    sentencing principles and is well within the range for these offences. The
    sentence reached by the trial judge is reasonable, attracts considerable
    deference, and should not be varied, other than to incorporate the enhanced
    credit for pre-trial custody of an additional 103 days.

D.      Disposition

[29]

For these reasons, the appeal from conviction is dismissed. Leave to
    appeal the sentence is granted, the appeal from sentence is allowed on consent
    to increase the credit allowed to the appellant for pre-trial custody on a 1.5
    times basis from 500 to 603 days, but is otherwise dismissed.

David Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Best, 2015 ONCA 826

DATE: 20151127

DOCKET: C59385

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Duane Best

Appellant

Apple Newton-Smith, for the appellant

Michael Bernstein, for the respondent

Heard: November 24, 2015

On appeal from the convictions entered on November 11 and
    16, 2015 by Justice H.E. Sachs of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The sole issue raised by this appeal is the retrospective application of
    the 2013 self-defence provisions of the
Criminal Code
.  This court has
    determined that the provisions do not have retrospective effect in
R. v.
    Bengy
, [2015] O.J. No. 2958.   That decision determines the issues on
    appeal. The appeal is therefore dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blazevic, 2015 ONCA 789

DATE: 20151118

DOCKET: C55656

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Blazevic

Appellant

Brad Burgess, for the appellant

David Finley, for the respondent

Heard: November 16, 2015

On appeal from the conviction entered on January 9, 2012
    and the sentence imposed on February 1, 2012 by Justice Leonard Ricchetti of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant Michael Blazevic was convicted of three firearms offences
    and conspiracy to commit an indictable offence (unlawful confinement) by
    Richetti J. of the Superior Court of Justice on January 9, 2012. He received a
    global sentence of ten years imprisonment, after credit for 75 days of
    pre-sentence custody.

[2]

The appellant appeals both the conviction and sentence.

[3]

On the conviction appeal, the appellant submits that his convictions for
    the three firearms offences were unreasonable because there was insufficient
    evidence to prove that he had knowledge of the presence of the firearm in the
    drivers side door pocket.

[4]

We do not accept this submission. The factual context here is important.
    The appellant and his associates were on the brink of attempting to commit a
    kidnapping. They had weapons to assist in committing this offence. There was
    strong evidence that the appellant had knowledge of the zippered case
    containing the firearm. The trial judge listed nine pieces of evidence on this
    issue, including the appellants admission that he was the driver of the car,
    the fact that the appellant had another weapon (a knife) as well as handcuffs
    and repellant spray in a satchel on his person, and the proximity of the
    firearm to the drivers seat of the car. The trial judge concluded:

The totality of the evidence must be considered. When all of
    the evidence is considered as a whole, there is no reasonable doubt Mr.
    Blazevic had knowledge of the firearm in the drivers door pocket.

We agree.

[5]

On the sentence appeal, the appellant asserts that the ten year sentence
    was too harsh for two reasons: (1) the trial judge overemphasized the
    appellants convictions in 2000 for armed robbery and forcible confinement; and
    (2) he failed to properly consider the principle of rehabilitation.

[6]

We would not give effect to these submissions. There was nothing wrong
    with the trial judge taking into account the previous armed robbery/forcible
    confinement convictions and referring to the raw brutality towards the
    victims in that incident. This is particularly so in light of the fact that
    the trial judge was sentencing the appellant for an aborted kidnapping and
    confinement of a wealthy person with a view to extracting money from him. The
    proposed criminal activity in 2010 was similar in purpose, and in likely
    violence, to the criminal activity that led to his convictions in 2000.

[7]

On rehabilitation, the trial judge said:

Mr. Blazevics record is not the record of someone who has
    reasonable prospects for rehabilitation. There is no reason to believe that Mr.
    Blazevic has any prospects for rehabilitation.

[8]

The appellant says that this conclusion is too harsh. We disagree.
    Although there are longer and more serious criminal records than the
    appellants, the armed robbery/unlawful confinement offences for which he was
    convicted in 2000, and especially the facts underlying those convictions, and
    the imminent criminal activity which led to the 2012 convictions, taken
    together, amply justify the trial judges bleak conclusion on rehabilitation.

[9]

The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

M. Tulloch J.A.

G. Pardu J.A.