



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.


