



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm-Evans, 2016 ONCA 28

DATE: 20160114

DOCKET: C55996

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Malcolm-Evans

Appellant

Breana Vandebeek, for the appellant

James D.M. Clark, for the respondent

Heard: January 8, 2016

On appeal from the convictions entered on January 13,
    2011 and the sentence imposed on January 14, 2011 by Justice James A. Ramsay of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

After trial by judge and jury, the appellant was convicted of possession
    of cocaine for the purposes of trafficking and possession of the proceeds of
    crime under $5,000. He appeals both convictions.

[2]

The police conducted surveillance of a multi-unit house in which
    suspected cocaine trafficking was occurring. The appellant was one of five
    people arrested after they had departed the building in a car. The arresting
    police officer, Constable Ranieri, testified that, during the arrest, he saw
    the appellant reach into his pocket, pull out a clear plastic bag containing
    what appeared to be crack cocaine, and throw it under the car. The bag
    contained 26.8 grams of powder cocaine. A search of the appellant disclosed two
    cell phones and $4,030 in cash. The other males in the vehicle were found in
    possession of various drugs and drug paraphernalia. Constable Ranieri testified
    that at least one of the appellants cell phones was ringing repeatedly and, when
    he answered the phone, the callers asked for a 20 piece or a 10 piece,
    which is code for certain quantities of cocaine.

[3]

It was the defence theory that the appellant was not involved in the
    drug trade. The appellant did not testify, but his girlfriend gave evidence for
    the defence. She said that she lived at the target residence, that no drug
    dealing took place in her apartment, and that she had given the appellant
    $2,400 in cash the evening before his arrest to cover rent and supplies for a new
    apartment unit.

[4]

The appellant raises four grounds of appeal.

[5]

First, relying on the Supreme Courts decision in
R. v. Baldree
,
    2013 SCC 35, [2013] S.C.R. 520, the appellant argues that the trial judge erred
    in admitting evidence of the intercepted drug purchase calls. The calls, he
    says, were hearsay and presumptively inadmissible. The appellant submits that,
    despite the lack of any objection at trial, the evidence ought not to have been
    admitted.

[6]

We reject this ground of appeal.

[7]

Unlike the circumstances in
Baldree
, which involved evidence of
    a single drug purchase call and no other evidence connecting the accused to
    drug dealing, in this case there were multiple calls, which the
Baldree
court
    (at paras. 71, 94 and 120) recognized may establish reliability. In addition, in
    this case, there was significant confirmatory evidence that the appellant was a
    drug dealer. The necessity requirement for the admission of hearsay is also
    met: the callers hung up quickly and used coded language. There was no
    realistic possibility of identifying the callers and obtaining their evidence
    for use at trial.

[8]

Further, the lack of objection at trial to the admissibility of the drug
    purchase calls is important. Constable Ranieri was cross-examined on the fact
    that he failed to keep a full record of how many calls were received, or what
    exactly the callers said. This was relevant to the overall reliability of his
    testimony, which included the important evidence of seeing the appellant throw
    cocaine under the car. In these circumstances, it is difficult to accept that
    defence counsel at trial failed to object to the admission of the evidence of the
    cell phone calls through oversight.

[9]

Moreover, even without the evidence of the content of the cell phone calls,
    the case against the appellant was overwhelming. As we have said, the appellant
    did not testify, and there was no evidence that contradicted the police
    officers description of the appellants possession and attempted disposal of a
    bag of cocaine. It was not suggested to Constable Ranieri that he had either
    not made, or had fabricated, his observations. The evidence of at least one and
    possibly two of the appellants cell phones ringing steadily was admissible in
    any event. According to the uncontradicted evidence of a police expert witness
    who also testified at trial, in the circumstances, this was indicative of drug
    dealing.

[10]

The
    remaining grounds of appeal relate to alleged insufficiencies in the jury
    charge with respect to the trial judges instructions on reasonable doubt, and
    the assessment of the defence evidence and the credibility of witnesses.

[11]

More
    particularly, the appellant argues that the trial judge erred in telling the
    jury that reasonable doubt was closer to absolute certainty than it is to the
    balance of probabilities, without defining for them how much closer it is to
    absolute certainty. In this regard, the appellant contends that the trial judge
    should have told the jury that proof beyond a reasonable doubt falls much
    closer to absolute certainty than to proof on a balance of probabilities. In
    addition, in describing the standard of proof, the trial judge failed to use
    the word sure, in describing the level of certainty required for a finding of
    guilt. Further, he erred by telling the jury not to go sifting through the
    evidence looking for a reasonable doubt here and a reasonable doubt there.

[12]

We
    also reject these arguments.

[13]

There
    was no objection to the charge on reasonable doubt at trial. The issues now
    raised take phrases used by the trial judge out of context. On a review of the
    entire charge, we are satisfied that there was no reasonable likelihood that
    the jury was under a misapprehension as to the correct standard of proof to
    apply:
R. v. Lifchus
, [1997] 3 S.C.R. 320, at para. 41.

[14]

The
    appellant also asserts, relying on this courts decision in
R. v. B.D
.,
    2011 ONCA 51, that the trial judge erred in not giving a
W.(D.)
instruction
    with respect to the defence evidence:
R. v. W.(D.)
, [1991] 1 S.C.R.
    742. We disagree.

[15]

In
    our view, a
W.(D.)
instruction in respect of the defence evidence was
    not required in this case. This was not a case, like
B.D
., where the
    jury had to make credibility findings on a vital issue that seemed to require
    an either/or choice between conflicting evidence: See
R. v. Dayes
, 2013
    ONCA 614, at paras. 54-56.

[16]

The
    evidence of the appellants girlfriend was particularly relevant to the
    proceeds of crime charge  it went to whether there was an alternative
    explanation for the cash found on the appellant. Her testimony did not bear on
    whether the appellant was in possession of a bag of cocaine when he was
    arrested. Moreover, even on her evidence, the amount of the funds found in the
    appellants possession ($4,030) was not fully accounted for.

[17]

We
    note that the charge given on the funds found in the appellants possession
    actually favoured the appellant. The charge did not highlight for the jury the
    failure of the defence evidence to fully explain the amount of the funds in the
    appellants possession. If a
W.(D.)
instruction specific to the
    defence evidence had been given, this discrepancy may well have been
    underscored, to the appellants potential detriment.

[18]

Finally,
    we do not give effect to the appellants argument that the trial judge erred by
    failing to provide the jury with sufficient guidance on the assessment of
    witnesses credibility and/or demeanour. None of the alleged deficiencies are
    material in the context of the entire charge given in this case.

[19]

Accordingly,
    the appeal is dismissed.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


