



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scharf, 2017 ONCA 794

DATE: 20171017

DOCKET: C59582

Pepall, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Scharf

Appellant

Jeffrey Langevin, for the appellant

Morris Pistyner, Kelvin Ramchand and Jessica Legrand,
    for the respondent

Heard: October 10, 2017

On appeal from the conviction entered on July 15, 2014
    and the sentence imposed on October 7, 2014 by Justice Kevin Phillips of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purpose of trafficking
    cocaine and several offences relating to possession of prohibited weapons. He
    was sentenced to 5 years for the trafficking and 1 ½ years consecutive for the
    weapons offences less credit for pre-trial custody. He appeals only his
    conviction for trafficking and the five year sentence in connection with it.

[2]

The appellant, and his friend Stephen Burns, had been the target of a
    police investigation.  On the day in question, when the appellant was at Burns
    home, several police officers approached the home in an unmarked van. The
    appellant testified that just months earlier, his friend Wayne Drinkwalter had
    been shot by assailants pretending to be police officers. Consequently, he thought
    the intruders were members of a hit squad out to kill him and Burns. He says
    that he ran to the bathroom for cover. The evidence of the arresting officers
    suggested that Burns had preceded the appellant to the bathroom. After securing
    both Burns and the appellant, the officers found a plastic bag containing 236
    grams of cocaine in the toilet.

[3]

The Crown submitted that the appellant was in possession of the cocaine
    and attempted to flush it down the toilet. The defence argued that Burns
    attempted to flush it. Burns said the cocaine was his.

[4]

The trial judge found that the appellant had possession of the cocaine
    and had attempted to flush it down the toilet.

[5]

The appellant submits: (i) the trial judge misapprehended the evidence
    by finding that he was in the bathroom and in possession of the cocaine; (ii)
    the verdict is unreasonable because the trial judge did not explain how he
    resolved contradictions in the evidence concerning whether he was in the
    bathroom or not; and (iii) he had ineffective assistance of counsel primarily
    because Drinkwalter was not called as a witness.

[6]

We do not agree with these submissions.

[7]

The trial judge did not misapprehend the
    evidence that the appellant was in the bathroom. On the appellants own
    evidence, he ran there to avoid the intruders. He said multiples times that he
    was in the bathroom. The trial judge accepted the combined evidence of the
    police officers to find that the appellant and Burns were in the bathroom
    together and that the appellant, who was near the toilet, engaged himself in
    an effort to flush the cocaine.
The findings of fact and credibility
    underlying this conclusion are owed deference. They are not contradicted by the
    evidence and do not render the verdict unreasonable.

[8]

The appellant relies on fresh evidence to
    support his assertion of ineffective assistance of counsel. He submits that his
    lawyer should have called two witnesses, including Drinkwalter, who would have
    corroborated his concern that the intruders were not police. The evidence of
    these witnesses could not have affected the result of the trial. The evidence,
    therefore, does not meet the
Palmer
test. Nor
    does it establish the prejudice required to substantiate an allegation of
    ineffective assistance: see
R.

v. White
(1997) 32 O.R. (3d) 722. In short, the result of the trial would
    have been the same had the evidence been admitted at trial. We come to this
    conclusion for three reasons. First, the appellants testimony about
    Drinkwalters experience was never challenged. Second, the trial judge accepted
    the evidence that Burns had loudly announced that the house was about to be
    raided by the cops. Finally, if the appellant was afraid of the intruders, he
    would not have left the bathroom door open.

[9]

Although not the subject of submissions by the appellant, we do not
    agree with the trial judges determination that the act of flushing the cocaine
    down the toilet amounted to trafficking:
R. v. MacDonald
, [1963]
    B.C.J. No. 98;
R. v. Pappin
(1970) 12 C.R.N.S. 287. However, the trial
    judge found as fact that the appellant was in possession of the cocaine in a
    quantity greater than for personal use. The trafficking offence was therefore made
    out.

[10]

The
    appellant submits that the sentence of five years for trafficking is outside
    the range and this court should substitute three years. We do not agree. The
trial judge considered the principles of sentencing, identified the
    appropriate mitigating and aggravating factors, and imposed a sentence that was
    fit.  See also
R. v. Bryan,
2011 ONCA 273, [2011]
    O.J. No. 1581. The appellant has not demonstrated an error in law or in principle
    that impacted the sentence that would warrant appellate intervention as
    required by
R. v. Lacasse,
2015 SCC 64,

[2015] 3 SCR 1089 and
R. v. Wu,
2017 ONCA 620,

[2017]
    O.J. No. 3868 .

[11]

For these reasons, the appeal is dismissed.
    Leave to appeal sentence is allowed, but the sentence appeal is dismissed.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B.
    Nordheimer J.A. 


