



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm, 2017 ONCA 577

DATE: 20170705

DOCKET: C58476

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kalvin Malcolm

Appellant

Gary Grill and Elizabeth Bingham, for the appellant

Jeremy Streeter, for the respondent

Heard: July 4, 2017

On appeal from the conviction entered on April 9, 2013,
    and from the sentence imposed on July 9, 2013, by Justice Myrna L. Lack of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Kalvin
Malcom appeals from convictions for
    various drug offences  possession for the purpose of trafficking in crystal
    methamphetamine and cocaine, possession of marihuana, and possession of
    proceeds of crime. The drugs and $17,270 in cash were found pursuant to a
    search warrant in an apartment of which he was the sole resident. The warrant
    was obtained by the police in relation to alleged criminal activity on the part
    of the appellants roommate. The appellant testified that he did not know the
    drugs were in his apartment and that the cash was derived from legitimate
    sources.

[2]

He submits that the trial judge erred in three
    respects:

1.

She erred in finding that there was a sufficient basis in the
    Information to Obtain to support a reasonable belief that a search of the
    apartment would afford evidence of a robbery and drug dealing by the
    appellants former roommate.

2.

She erred in her assessment of the appellants credibility.

3.

Her reasons for conviction were insufficient.

[3]

We would reject each of these grounds of
    appeal.

[4]

The target of the search was Mr. Rainford, who
    had lived with the appellant in the apartment. They had been friends since
    childhood. During the time Mr. Rainford lived with the appellant, there was a
    home invasion robbery. Both Mr. Rainford and his girlfriend were connected to
    both the robbery and the apartment searched. A black Acura, like the vehicle
    used by the appellant, was also connected to the robbery. Although Mr. Rainford
    moved out some time before May 11, 2011, he continued to visit the property.

[5]

The trial judge did not err in concluding that
    there was a basis upon which the issuing justice could have granted the search
    warrant.

[6]

There is nothing in the record justifying a
    departure from the deference owed to a trial judges assessment of credibility.
    Aspects of the appellants evidence were far-fetched and demonstrably false.
    The trial judges reasons provide an ample basis for appellate review.

[7]

The appellant was the sole occupier of the
    apartment. The only substantial issue at trial was whether he knew the drugs
    were in the apartment. The trial judge rejected his evidence that he did not
    know the drugs were there and inferred that he knew of the drugs in his kitchen
    cupboards. This was a conclusion reasonably open to her on the evidence.

[8]

The appellant testified that part of the $17,270
    was composed of proceeds from the sale of his car and a down payment he had
    received of $8500.00 for the sale. The appellant testified that he showed the
    car to the prospective purchasers and printed a receipt for the purchaser
    before the purchaser saw the vehicle, or they negotiated terms, even though he
    did not possess a printer. The trial judge concluded that this was an obvious
    concoction.

[9]

The appellant also appeals from sentence. He
    submits that the trial judge erred by failing to grant him a conditional
    sentence. The trial judge rejected a conditional sentence largely because of
    the appellants two previous, albeit dated convictions (three years before the
    events leading to conviction) for breach of recognizance. She was not persuaded
    that he would abide by the terms of a conditional sentence. The appellant also
    had prior convictions for possession of a controlled substance for the purpose
    of trafficking and possession of property obtained by crime for which he had
    been sentenced to the equivalent of a year in jail. We see no basis for
    appellate intervention.

[10]

The Crown concedes that the trial judge did not
    have jurisdiction to hear Count 3 on the indictment, the possession of
    marihuana charge, as the amount in issue was less than 30 grams. Under s. 4(5)
    of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19, this is a
    summary conviction offence: see
R. v. Allen
, [2000] O.J. No. 4150
    (S.C.). The appeal is allowed to the extent of vacating the conviction on Count
    3 of the indictment for possession of marihuana, but the appeal from conviction
    is otherwise dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

K.M.
    Weiler J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


