



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stephens, 2016 ONCA 262

DATE: 20160408

DOCKET: C57080

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Stephens

Appellant

Bernadette Saad, for the appellant

Sandy Thomas, for the respondent

Heard: April 7, 2016

On appeal from the conviction entered on July 11, 2012
    and the sentence imposed on May 1, 2013 by Justice Lois B. Roberts of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of one count of trafficking in cocaine by
    Roberts J. of the Superior Court of Justice on July 11, 2012. The trial judge
    imposed a conditional sentence of 24 months less five days, followed by one
    year of probation on May 1, 2013. The appellant appeals the conviction and
    sentence.

[2]

The conviction arose from a drug transaction with an undercover police
    officer in the Glenholme Ave. and Clovelley Ave. area of Toronto. The Crowns
    case was that a known drug user with a long criminal record, Kathleen Barry,
    had given a small quantity of cocaine (1.3 grams) to the appellant who in turn
    gave it to another man, George Corbiere, who then transferred it to a police
    officer, Detective Constable Dion Monahar, who paid $100 for it. The part of
    the transaction involving the appellant, Corbiere and Monahar took place with
    all three men standing in close proximity outdoors in an area adjacent to a
    low-rise apartment building.

[3]

The appellant testified that he did not know that the small package
    given to him by Barry contained cocaine. Barry testified and confirmed the
    appellants testimony on this point.

[4]

The trial judge disbelieved the appellants and Barrys testimony:

Frankly, I found that Ms. Barry was an incredible and
    unreliable witness.



While he may have been duped by his affection for Ms. Barry,
    Mr. Stephens ultimately showed by his admissions that he was not blind to what
    was going on with Ms. Barry and her friends. He was a knowing and active participant
    in the delivery of the crack cocaine.



I find that Mr. Stephens took an active role in the transaction
    with D.C. Monahar. He delivered the drugs to Mr. Corbiere and was part of the
    chain of distribution of the drugs to the purchaser.

[5]

The trial judge believed Monahars testimony, including, crucially, that
    the appellant was present and actively participated in the three-way transfer
    of the cocaine in the outdoor area near the apartment building and that the
    cocaine was in a clear plastic baggy.

[6]

The appellant appeals his conviction on several grounds.

[7]

First, the appellant contends that the trial judge reversed the burden
    of proof on the key issue of whether a napkin or tissue may have been present
    at the scene. The appellant testified that he did not know what he was
    transferring because the substance was hidden under wrapping.

[8]

We do not accept this submission. The trial judge explicitly accepted
    Monahars testimony that the cocaine was inside a clear plastic baggy.
    Moreover, she said this about the appellants testimony on this issue:

I do not accept Mr. Stephens evidence that he did not know
    that the package contained drugs, nor does his evidence leave me with a
    reasonable doubt. First, I do not believe that the package was wrapped in a
    napkin, tissue or a paper towel. Mr. Stephens evidence was very unreliable on
    this extremely important point: as already noted, he started by saying that the
    package was wrapped in a paper towel, went so far as to describe it as being
    wrapped in a particular napkin from a particular restaurant, and then ended up
    saying it was wrapped in a tissue with which one would blow ones nose.

[9]

We see no error in the way the trial judge treated this issue.

[10]

Second,
    the appellant submits that the trial judge erred by arriving at conclusions on
    new issues not raised at trial and not supported by the facts, including that
    the appellant was involved in a romantic relationship with Barry, observations
    about the appellants demeanour (sweating) in the courtroom on a date
    originally scheduled for judgment, finding that the appellant observed Barry
    doing drugs at a party, and concluding that there must have been some
    communication between the appellant and Barry after the charges were laid.

[11]

In
    our view, there was evidence to support all of these conclusions. In any event,
    they were at the extreme perimeter of the issues at the crux of the trial 
    namely, did the appellant participate in the transaction outside the apartment
    and did he know that the substance involved in the transaction was cocaine?

[12]

Third,
    the appellant asserts that the conclusions by the trial judge on the two
    charges, possession for the purpose of trafficking (guilty) and possession of
    the proceeds of crime, namely $100 (not guilty) are logically irreconcilable
    and therefore the conviction on the former charge is unreasonable.

[13]

We
    disagree. The evidence on the trafficking count was very strong. It included
    not only Monahars clear evidence about the appellants role in the
    transaction, but also Officer Duncans corroborating testimony. The evidence on
    the proceeds count was weaker. Although $100 was found on the ground, it was
    unclear how it got there. Accordingly, the trial judge entered an acquittal on
    the proceeds count. In short, the evidence established beyond a reasonable
    doubt that the appellant possessed the cocaine, knowing that it was cocaine.
    The evidence did not conclusively establish that he possessed the $100.

[14]

The
    appellant appeals his sentence. He submits that the 24 month less five day
    sentence was too long in comparison with Corbieres six month conditional
    sentence, that the electronic monitoring and community service components of
    the sentence were harsh and unnecessary, that probation was unwarranted, and
    that credit should have been given for the long and strict bail with which he
    complied pre-trial.

[15]

We
    are not persuaded by this submission. The appellant could easily have received
    a custodial sentence in a provincial, or even federal, institution given that
    the drug involved was cocaine. A conditional sentence with electronic
    monitoring followed by probation and community service was neither unfit nor
    unreasonable.

[16]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.

H.S. LaForme J.A.


