



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dixon, 2014 ONCA 835


DATE: 20141125

DOCKET: C56016

Feldman, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Scott Dixon

Appellant

Vincenzo Rondinelli, for the appellant

Tanit Gilliam, for the respondent

Heard: October 7, 2014

On appeal from the convictions entered on June 18, 2012
    by Justice Donald J. Taliano of the Superior Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

The appellant was charged with nine counts of drug-related offences. He
    was acquitted of three counts and convicted of six. He appeals four of the six
    convictions: conspiracy to traffic, trafficking, and two counts of possession
    for the purpose of trafficking cocaine. For the reasons that follow, we dismiss
    the appeal.

Conspiracy (Count 6)

[2]

The appellant was convicted of conspiring with Antonio Gallo to traffic
    cocaine. The Crown relied on a series of intercepted communications to
    establish an agreement to sell cocaine. The trial judge found that the
    interceptions proved that Gallo and the appellant had a working relationship in
    the drug trade and that they had agreed to work together to sell cocaine.

[3]

The appellant submits that the trial judge erred in finding an agreement
    to sell cocaine. At its highest, the appellant argues, the interceptions show
    an attempt to agree to sell cocaine, not an agreement to sell. He points to
    the following exchange:

Appellant: okay well give me a call tomorrow and Im gonna go
    down and see my other friend so maybe between all of us we can

Gallo: you give me a call

Appellant: I wonder if we sell the nine

[4]

The appellant submits that words such as I wonder and call tomorrow
    indicate that no agreement had been reached.

[5]

This excerpt is a short portion of 46 pages of intercepted
    communications between the appellant and Gallo. Read in their entirety, it is
    clear that they were in the business of selling cocaine, and had agreed to acquire,
    share and sell cocaine. They discussed supply connections in Colombia, movement
    through the airport, a recent police bust, prices and their customers. It was
    open to the trial judge to conclude that there was an agreement to traffic.

Trafficking (Count 7)

[6]

The trial judge found the appellant guilty of trafficking based on ten
    separate transactions involving individuals who, in various ways, were involved
    in the drug trade with the appellant. The trial judge admitted the statements
    of these individuals based on the co-conspirators exception to the hearsay
    rule. He said that the statements were admissible on the basis of
R. v.
    Carter
1982 CanLII 35. The statements were used in evidence against the
    appellant.

[7]

The appellant submits that the trial judge erred in law in admitting the
    statements without providing an analysis as to how the declarants statements
    came within the exception to the hearsay rule.

[8]

The trial judge is presumed to know the law. He was alive to the
Carter
requirements for he had, earlier in the judgment, referred to the
    principle. There was evidence on which the trial judge could conclude that the
    declarants were members of a conspiracy, along with the appellant, and the
    statements could be used against him.

Possession for the Purpose (Count 8)

[9]

The trial judge found that the appellant took delivery of a kilogram of
    cocaine for the purpose of selling it. The appellant argues that, because the
    cocaine that was the subject of this count was never seized, he cannot be
    convicted of possession. The substance must, it is submitted, be tested and
    proved to be cocaine.

[10]

Here
    there was extensive circumstantial evidence upon which the trial judge could
    conclude the substance was, in fact, cocaine. The appellant makes statements in
    the intercepted communications including:

·

The stuff is gooda bit chalky

·

You know what you cook

·

I know its good

·

Sniffers love it

·

Smokers love it

[11]

The
    appellant was in the drug business. He said he had a substance with the above
    attributes. There was evidence upon which the trial judge could conclude it was
    in fact cocaine.

Possession for the Purpose (Count 9)

[12]

An
    apartment occupied by the appellant alone was searched pursuant to a warrant. The
    police seized drug paraphernalia including 14.4 grams of cocaine, a digital
    scale, debt lists and a money counter. The trial judge found as fact that the
    appellant was the sole occupant in control of the apartment and possessed the
    cocaine for the purpose of trafficking.

[13]

The
    appellant submits that in doing so the trial judge took judicial notice that
    the items seized were for use in the drug trade. This, it is submitted, could
    not be done in the absence of expert testimony.

[14]

In
    the context of the evidence as a whole, including the evidence of officers from
    the drug squad, the trial judge drew the common sense inference that the seized
    items were only consistent with drug trafficking. It was open to him to make
    that finding.

[15]

The
    appeal from all of these convictions is therefore dismissed.

K.
    Feldman J.A.

Gloria
    Epstein J.A.

M.L.
    Benotto J.A.


