



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Innocent, 2017 ONCA 529

DATE: 20170623

DOCKET: C61146

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Innocent

Appellant

Alexander Ostroff, for the appellant

Xenia Proestos, for the respondent

Heard: June 19, 2017

On appeal from the convictions entered on October 17,
    2014 by Justice Alexander Sosna of the Superior Court of Justice.

REASONS FOR DECISION

A.

Introduction

[1]

At the conclusion of oral submissions, we advised counsel the appeal was
    being dismissed with reasons to follow. These are those reasons.

B.

Background

[2]

The appellant was asleep in the back seat of a car that was stopped by
    police on Highway 401 for speeding. He had been travelling with three men from
    Toronto to Montreal. Brandon Daniels was driving, Christopher Cambronne was in
    the passenger seat, and Brian Simpson-Fry was in the back seat next to the
    appellant.

[3]

At the time, the appellant was subject to a recognizance and there were
    outstanding warrants for his arrest. When stopped, he gave the police a false
    name. One of the officers observed the appellant's arm resting on a red and blue
    duffle bag between the rear seats. The officer also smelled marijuana and
    noticed what appeared to be a burnt marijuana cigarette on the floor in front
    of the appellant. When the officer asked him about it, the appellant picked the
    marijuana cigarette up, but then swallowed it. The appellant then attempted to
    run, but was subdued and arrested by the officers, at which point he said
    "I am stupid. I am going to do eight years for this. I'm on parole". The
    officers found $545 on the appellant and another $400 in the area where he had
    attempted to run.

[4]

All four occupants of the vehicle were arrested for possession of
    marijuana. During a search incident to arrest of Simpson-Fry, the police found
    crack cocaine, a clear bag of marijuana, and a digital scale. The red and blue
    duffle bag contained a bag of white powder, a grey grocery bag of white powder,
    and a small bag containing marijuana. Later at the detachment, the police
    searched a black camera bag found partially jammed under the rear of the front
    passenger seat. This was found to contain $2,280 in cash and seven clear plastic
    bags containing white powder and a hard white substance. The totality of the
    seizure was later calculated as 1.2 kilograms of cocaine, less cutting agents, which
    weighed 653 grams.

[5]

The four men were charged with possession of cocaine for the purpose of
    trafficking. The appellant was also charged with various counts of wilfully
    obstructing a peace officer and failure to comply with a recognizance.

[6]

Simpson-Fry pleaded guilty to his charges on August 27, 2013. At the
    appellants trial, Simpson-Fry testified the drugs were his. The Crown withdrew
    all charges against the other passenger, Cambronne, and the driver, Daniels, in
    exchange for statutory declarations wherein they said only the appellant
    brought bags into the car.

[7]

At his trial, the appellant pleaded guilty to the related charges, but pleaded
    not guilty to possession of cocaine for the purpose of trafficking and failure
    to comply with a recognizance by possession of drugs. He took the position that
    the evidence of Daniels and Cambronne was unreliable and submitted his evidence,
    together with that of Simpson-Fry, raised a reasonable doubt.

[8]

The trial judge found the appellant was not a credible witness. Based on
    the evidence he accepted and his credibility analysis, the trial judge
    convicted the appellant.

[9]

The appellant appeals, alleging the trial judge erred in his credibility
    analysis, misapprehended the evidence, and came to an unreasonable verdict.

C.

Analysis

(1)

Credibility assessment

[10]

The appellant submits the trial judge erred in accepting the evidence of
    Daniels and Cambronne by: (i) finding it to be conflicting credible evidence
    without undertaking a reasoned analysis; (ii) finding their testimony was
    consistent with their declarations when this amounted to oath helping; and
    (iii) finding their testimony to be consistent with one another when one said
    only the appellant had brought bags into the car and the other said both the
    appellant and Simpson-Fry had done so.

[11]

We do not accept these submissions. The trial judges findings of
    credibility are entitled to deference. It was open to him to reject the
    appellants testimony and accept the testimony of Daniels and Cambronne. The
    trial judge undertook a reasoned analysis and relied on more than just the
    evidence of Daniels and Cambronne in rejecting the appellants evidence. In
    particular, he referred to the appellants false identification to the police,
    the burned marijuana cigarette on the floor of the car, the fact the appellant
    swallowed the marijuana cigarette, his attempt to flee, and his comments to the
    police when caught.

[12]

The trial judge cautioned himself in accordance with
R. v. Vetrovec
,
    [1982] 1 S.C.R. 811, and concluded the evidence of Daniels and Cambronne was
    reliable and credible. With respect to oath-helping, the trial judge accepted the
    evidence of Daniels and Cambronne not just because it was consistent with their
    declarations, but because individually and collectively [their testimony] was
    not undermined or weakened in cross-examination.

[13]

Lastly, it was open to the trial judge to accept the evidence of Daniels
    that the appellant was the only one who brought bags into the car.

(2)

Misapprehension of evidence

[14]

The appellant points to three aspects of the evidence that he alleges
    the trial judge misapprehended: (i) how long the appellant had known one of the
    passengers and how the drive to Montreal was arranged; (ii) how many bags were
    found in the car; and (iii) the reasons for the appellants question to the
    driver about riding dirty. The appellant testified that he fell asleep in the
    back seat, work up to find the driver was speeding and asked if they were
    riding dirty. He said his question was because he was concerned the car was
    stolen, not because of any concern about contraband. The trial judge concluded
    this evidence was sheer fiction and rejected it

[15]

We are not persuaded the trial judge misapprehended the evidence. It was
    open to him to accept the evidence that the appellant arranged for Daniels to
    drive him to Montreal. The trial judge was entitled to rely on the agreed
    statement of facts, which confirmed there were two bags found in the car. As
    for the riding dirty comment, it was open to the trial judge to disbelieve
    the appellants testimony that he was referring to matters other than the
    existence of drugs in the car.

(3)

Unreasonable verdict

[16]

The appellant submits there was insufficient evidence to convict him. We
    do not agree. The trial judge summarized his findings of fact in detail,
    correctly directed himself as to the inferences that can be drawn from
    circumstantial evidence, and concluded based on the entirety of the evidence the
    Crown had proven the charges beyond a reasonable doubt. The trial judges
    findings and the circumstantial evidence support the finding of guilt.

D.

Disposition

[17]

For these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


