



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brissett, 2019 ONCA 11

DATE: 20190114

DOCKET: C63691

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Everald Brissett

Appellant

Peter Thorning and Deepa Negandhi, for the appellant

Brian Puddington and Kelvin Ramchand, for the respondent

Heard: January 8, 2019

On appeal from the conviction entered by Justice Michael
    Code of the Superior Court of Justice on February 3, 2017, and from the
    sentence imposed on March 31, 2017.

REASONS FOR DECISION

[1]

Three accused, Everald Brissett, Courtney Benjamin and Gary Morris, were
    charged with various drug related offences. Their joint trial proceeded before
    Code J. of the Superior Court of Justice over nine days in January 2017.

[2]

At the conclusion of the trial, the trial judge convicted the appellant
    of possession of cocaine for the purpose of trafficking and acquitted him of
    possession of proceeds of crime. Benjamin was convicted of possession of
    cocaine for the purpose of trafficking and possession of marijuana for the
    purpose of trafficking. Morris was acquitted of possession of cocaine for the
    purpose of trafficking.

[3]

The appellant received a sentence of ten years imprisonment.

[4]

The appellant appeals the conviction and the sentence.

Conviction appeal

[5]

The appellant appeals the conviction on two grounds.

[6]

First, the appellant contends that his conviction was unreasonable. The
    basis for this submission is the alleged inconsistency between the appellants
    conviction and Morris acquittal given the proximity, in time and location, of
    their involvement with the large drug stash found in apartment 1004 at 3101
    Weston Road.  He emphasized that it was unreasonable for the trial judge to
    rely on the appellants possession of a key to an apartment containing drugs
    with a street value close to a million dollars to assist in proving his
    possession while disregarding the fact that Morris used a key to enter the
    apartment while carrying seven kilograms of cocaine.

[7]

We do not accept this submission. As the Supreme Court of Canada noted
    in
R. v. Sinclair
, 2011 SCC 40, at para. 22, unreasonable verdicts are
    exceedingly rare. In our view, this appeal is far removed from deserving this
    label.

[8]

Although the appellant and Morris were reasonably closely connected, in
    time and place, to the events that led to the charges against them (they were
    not together when they were arrested), and although they both possessed keys
    and had access to a stash house holding valuable drugs, there is a crucial
    difference in their situations.

[9]

Morris testified at the trial and gave an innocent explanation for his
    conduct and for his possession of the key.  The trial judge believed his
    testimony. Morris was described as an unsophisticated witness.  According to
    the trial judge, his testimony was not only plausible. It had the ring of
    truth. Accordingly, the trial judge concluded that he was a blind courier
    and, therefore, the essential element of knowledge has not been proved.

[10]

The
    appellant did not testify at the trial. He called a witness  Ervin Malcolm,
    who was with him at the door of the stash apartment when they were both
    arrested  who testified that only he had the directions and key to the apartment
    and that the appellant was just coming along for the ride. The trial judge
    pointed out that Malcolms evidence was contradicted by the video surveillance
    cameras in the apartment building and by the police evidence that it was the
    appellant who had the key to the apartment. In the end, the trial judge
    described Malcolm and his testimony in this fashion:

My reasons for completely rejecting Ervin Malcolms exculpatory
    account are both its internal improbability and the external contradiction of
    that account. It is hard to imagine a more complicated and improbable story.



I am satisfied that Ervin Malcolm was not a truthful witness. I
    completely reject his account.

[11]

In
    conclusion, the trial judge believed the testimony of an accused who testified.
    He acquitted that accused, as he was bound to do. The trial judge rejected the
    evidence of a witness called by the defence and accepted the Crown evidence
    against the accused. He convicted that accused. There is nothing unreasonable
    about the trial judges conclusion relating to the appellants conviction.

[12]

Second,
    the appellant submits that the trial judge erred by dismissing his
Charter
s. 11(b) application.

[13]

The
    time from the indictment to the trial was 36 months. The trial judge deducted
    one month as conceded defence delay, four months for other defence delay, and
    four months as exceptional circumstances, for a net delay of 27 months. This
    delay was inside the 30-month presumptive ceiling for trials in superior courts
    fixed in
R. v. Jordan
, 2016 SCC 27, at para. 46. The appellant asserts
    that the trial judge erred with respect to both four-month subtractions.

[14]

The
    appellant challenges the four-month defence delay attribution on the basis that
    this delay was caused by the unavailability of a different co-accuseds counsel
    to start the trial four months before it actually commenced. The appellant says
    that he should not be penalized, when he was ready, because of a delay caused
    by a co-accused.

[15]

We
    are not persuaded by this submission. The trial judges reasoning on this point
    was:

The only other period of defence delay was the
    four months in this Court, from September 2016 to January 2017, when Mr.
    Rusonik was not available for trial. Once again, I did not attribute this
    period of delay personally to Mr. Rusoniks client Morris. I attributed it to
    the case as a whole, as defence delay under the
Jordan
framework.
    Mr. Rusonik and his client have acted responsibly throughout, asking to hear
    from only two witnesses at the preliminary inquiry, making numerous realistic
    admissions, and consenting to committal in a timely way. They then waited
    patiently in this Court until the other accused arrived after their somewhat
    slower committals. Furthermore, Mr. Rusonik was the only counsel who was
    retained and on the record from the beginning in this Court. When he needed
    four months of delay in this Court, in order to clear his calendar, the other
    accused acquiesced in this delay and did not raise s. 11(b) concerns,
    presumably because they needed the further delay in order to complete their own
    retainers and prepare for trial. In all these circumstances, it would have been
    inappropriate to treat this four months of defence delay as applying narrowly
    to the accused Morris, as opposed to the case as a whole.

[16]

We agree with this conclusion: see
R. v. Albinowski
, 2018 ONCA 1084, at paras. 37-39.

[17]

The trial judges second four-month subtraction was for the
    exceptional circumstance that the appellant sought, appropriately but quite
    late, the testimony of two additional police witnesses at the preliminary
    inquiry:
Jordan
, at paras. 69-75. We see no basis
    for interfering with the trial judges conclusion on this issue. In the face of
    a late request, scheduling was a real issue for these two officers because of
    prior commitments and the security detail required for the Pan American Games
    in Toronto. This was an unexpected discrete event that the Crown could not
    reasonably be expected to remedy:
Jordan
, at
    para. 69.  We do not accept the appellants submission that the Crown should
    have remedied the problem by severance.  This potential remedy was not
    requested and was not realistic at this juncture.

[18]

Ultimately, the trial judge reached this conclusion:

Having found that the total period of relevant
    delay in this case is 27 months and, therefore, below the 30 month presumptive
    ceiling in
Jordan
, it would be a rare case where a s. 11(b)
    violation could still be found. The present case is not that rare case, given
    that the only periods of unjustified delay were relatively short, as explained
    above. In these circumstances, the case did not take markedly longer than it
    reasonably should have.

[19]

We agree with this conclusion.

Sentence appeal

[20]

The appellant contends that a sentence of ten years imprisonment is
    unfit.

[21]

We disagree. The amount of cocaine involved in the appellants role in
    the drug operation was huge  15.6 kilograms. He had a previous conviction,
    albeit dated, for possession of cocaine for the purpose of trafficking.

Disposition

[22]

The conviction and sentence appeals are dismissed.

J.C.
    MacPherson J.A.

L.B.
    Roberts J.A.

David
    M. Paciocco J.A.


