



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DeMarco, 2020 ONCA 718

DATE: 20201112

DOCKET: C67607

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cynthia Denise DeMarco

Appellant

Cynthia Denise DeMarco, acting
    in person

Joe Wilkinson, appearing as
    duty counsel

Anna Martin, for the
    respondent

Heard: November 3,
    2020 by video conference

On appeal from the conviction entered on May 10, 2019 and
    the sentence imposed on September 30, 2019 by Justice G. Mark Hornblower of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purposes of
    trafficking in heroin and in fentanyl pursuant to the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19, s. 5(2). She was also convicted of
    possession of
methamphetamine
contrary to s. 4(1) of
    the Act. She was sentenced to two years imprisonment, concurrently, for each
    of the trafficking charges and 30 days imprisonment, concurrently, for the
    possession charge.

[2]

On the conviction appeal, the appellant asserts that she did not have
    knowledge or control of the drugs and drug paraphernalia seized from her
    apartment, making her conviction wrongful.

[3]

The trial judges reasons are short but complete. The police were investigating
    the appellants boyfriend, Jonathan Hughes, for drug trafficking. She lived
    with him in an apartment that she rented. The police obtained a search warrant
    for the apartment and executed it on January 9, 2018. They found sufficient quantities
    of heroin and
fentanyl
in Mr. Hughes possession to
    evidence a trafficking operation. They also seized the cellphones of Mr. Hughes
    and the appellant. The amount of
methamphetamine
found in the apartment did not substantiate trafficking but only possession. The
    appellant was present at the time of the execution of the search warrant.
    Various items of drug
paraphernalia
and
    methamphetamine were found in her room, and she was charged along with Mr. Hughes.

[4]

Based on expert opinion evidence, the trial judge found overwhelming
    evidence that fentanyl and heroine were being trafficked from that residence
    and that the amount of drugs found therein were for the purpose of trafficking.
    He also relied on the combined effect of the surveillance carried out by police
    in the days before the execution of the search warrant and the drugs and drug paraphernalia
    they found upon entry, including evidence that two monitors in the apartment
    were connected to a private surveillance system installed on the exterior walls
    of the building.

[5]

The trial judge considered whether there was any evidence that the
    appellant was personally in possession of those substances for the purpose of
    trafficking. He noted:

The fact that Hughes is involved does not necessarily implicate
    Ms. DeMarco. No drugs were found on Ms. DeMarco. Syringes with
    methamphetamine, a scale, a rubber band and alcohol wipes were all found on her
    bed; a night table in her room and in a purse that was in that room. Ms.
    DeMarco denies any knowledge of the drugs and paraphernalia found in her room,
    as well as any knowledge of the drugs found [in] Hughess possession.

[6]

At trial, the appellant admitted that as of December 8, 2017  a month
    before the search of her apartment  she was fully aware that Mr. Hughes was
    trafficking drugs and using her home for that purpose. A text message she sent
    Mr. Hughes that day (among others) made this clear:

and have fun finding a place to keep your shit and to sell your
    drugs out of, because Ill be damned if Im going to keep heating my fucking
    house out and putting my freedom in jeopardy

[7]

However, she testified that in the period between December 8, 2017, and
    the search on January 9, 2018, she and Mr. Hughes had broken up, and he was in
    rehab and no longer dealing drugs.

[8]

The trial judge found the appellant not credible and concluded that the
    Crown had proven beyond a reasonable doubt that she was aware that Hughes
    possessed drugs for sale from her residence. He gave a number of reasons for so
    concluding.

[9]

First, the appellant was in her apartment with Mr. Hughes when the police
    arrived and had to have been fully aware of the drugs in it, as well as the methamphetamine
    in her room. The trial judge did not believe her testimony that the police had rearranged
    certain items in her room, including her purse.

[10]

Second,
    the appellant testified that the purpose of the private surveillance system in
    her apartment was to provide security for the backyard area from which her
    bicycle had been stolen. However, the trial judge noted, the camera was not
    focused on that area, and its presence was not advertised in any way that might
    frighten potential thieves. Instead, the camera was focused on the entry area
    to the unit, allowing surveillance of who came to the door. To this we would
    add that the surveillance system was connected to screens in Mr. Hughes
    bedroom and the living room, and that the fire escape door could only be opened
    from the inside, again consistent with an active drug trade.

[11]

Third,
    police surveillance in the several days before the search warrant was executed showed
    numerous individuals going to the residence for short visits and leaving
    shortly thereafter, consistent with the sale of drugs from that residence. At
    trial, the appellant explained the visits on the basis that the visitors wanted
    to cheer up Mr. Hughes, who was not particularly well at the time.

[12]

Fourth,
    the appellant testified that the large amount of cash found on Mr. Hughes was
    to pay overdue rent and a hydro bill. The trial judge found that this testimony
    was largely self-serving, or convenient, and that the presence of such a
    large amount of cash was consistent with a drug trafficking operation.

[13]

The
    trial judge concluded, based on the evidence summarized above, that the
    appellant was aware that Hughes possessed drugs for sale from her residence.
    In the trial judges view: That knowledge is sufficient to establish the
    requisite degree of knowledge and control of the drugs for the purpose of
    trafficking, leading to convictions on those charges.

[14]

On
    appeal, duty counsel argues that the text messages on Mr. Hughes cellphone
    evidencing drug transactions were hearsay statements adduced for the truth of
    their contents and presumptively inadmissible. Trial defence counsel did not
    object to the admission of these statements.

[15]

It
    is correct that the trial judge referred to Mr. Hughes texts to persons other
    than the appellant and said that they made it clear he was selling drugs in the
    days before the search (the Impugned Statement). However, the Impugned
    Statement must be read in context. It came as part of the trial judges assessment
    of the credibility of the appellants assertion that between December 8, 2017,
    and January 9, 2018, Mr. Hughes had gone into rehab and to her knowledge was no
    longer selling drugs. Before making the Impugned Statement, he said, That
    explanation, however, flies in the face of reality. Even if the trial judge
    erred in considering the texts for the truth of their contents, given the
    evidence set out above, that error was not overriding.

[16]

The
    appellant has not established that the trial judge made any palpable and
    overriding error of fact, or any overriding legal error. The conviction appeal
    is dismissed.

[17]

In
    terms of the sentence appeal, we make three points. First, neither duty counsel
    nor the appellant made submissions on this at the oral hearing of the appeal.
    Second, Mr. Hughes pleaded guilty to one trafficking charge in exchange for the
    withdrawal of the other charges against him and received a sentence of four
    years. Third, in relation to the appellant, the Crown sought a three-year penitentiary
    term, expressly noting that she was not the principal actor in the offences.
    The defence submitted that a two-year sentence would be appropriate, which the trial
    judge accepted. He reasoned that although the appellant did not play an active
    role in trafficking the drugs, she provided some degree of safety and security
    for Mr. Hughes and a place from which he could sell these very serious drugs.

[18]

In
    her written material, the appellant argues that the trial judge failed to give
    adequate weight to her clean record and her previous history as a law-abiding
    citizen.

[19]

We
    do not agree.

[20]

The
    trial judge noted that the appellant was a relatively youthful first offender with
    some prospect of rehabilitation. However, despite being bright and capable,
    with some academic strengths and positive future goals, she had abused drugs
    and let herself be led astray by a negative and criminal peer group.

[21]

The
    trial judge expressed grave concern about trafficking in fentanyl and its
    effects in our society as an aggravating factor. In considering the question of
    proportionality, the trial judge noted his view that the four-year sentence for
    Mr. Hughes was on the light side.

[22]

The
    trial judge made no error in the sentencing principles he applied. Deference is
    due to his decision, based on
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 48.

[23]

Leave
    to appeal sentence is allowed but the sentence appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


