



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearle, 2016 ONCA 954

DATE: 20161216

DOCKET: C61098

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Pearle

Appellant

Brad Greenshields, for the appellant

Milica Potrebic, for the respondent

Heard: December 13, 2016

On appeal from the conviction entered on May 7, 2015 and
    the sentence imposed on May 7, 2015 by Justice J. Elliott Allen of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant, Rene Pearle, was convicted of two counts of possession of
    cocaine for the purpose of trafficking by Allen J. of the Ontario Court of
    Justice in Kitchener. He was sentenced to three years and nine months imprisonment
    after credit for time served.

[2]

On one count, the Crown alleged that on September 27, 2013 the appellant
    arranged by telephone to meet with Luis Hinojosa at an address in Cambridge
    known as The Cabin where Hinojosa sold the appellant two ounces of cocaine
    that the appellant possessed for the purpose of trafficking. The Cabin was a
    flophouse in Cambridge frequented by local drug dealers and users.

[3]

On the second count, the Crown alleged that on October 1, 2013 the
    appellant purchased one ounce of cocaine from Hinojosa in the visitors parking
    lot of a townhouse complex on Manhattan Circle, again for the purpose of
    trafficking.

[4]

The appellant appeals the convictions on two grounds.

[5]

First, the appellant submits that both convictions are unreasonable.

[6]

With respect to both counts, the appellant asserts that there was no
    evidence that any substance linked to the appellant was cocaine. No cocaine was
    seized in either location and, as a result, there was no Certificate of
    Analysis that any substance exchanged on either occasion was cocaine. If any
    substance was exchanged on either day, it was, says the appellant, as likely to
    be methamphetamine as cocaine because of their similar prices. Accordingly, the
    trial judge could not conclude that the Crown had proved beyond a reasonable
    doubt that the appellant had possessed cocaine.

[7]

We are not persuaded by this submission. The Crown case against the
    appellant was entirely circumstantial. Accordingly, the test is the one stated
    by Cromwell J. in
R. v. Villaroman
, 2016 SCC 33, at paras. 55 and 56:

Where the Crowns case depends on circumstantial evidence, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accuseds guilt was the only reasonable conclusion
    available on the totality of the evidence [Cases and citations omitted].

The governing principle was nicely summarized by the Alberta
    Court of Appeal in
Dipnarine
,

at para. 22.

The court
    noted that [c]ircumstantial evidence does not have to totally exclude other
    conceivable inferences and that a verdict is not unreasonable simply because
    the alternatives do not raise a doubt in the jurys mind.  Most importantly,
    [i]t is still fundamentally for the trier of fact to decide if any proposed
    alternative way of looking at the case is reasonable enough to raise a doubt.

[8]

The Crown case against the appellant, although circumstantial, included
    many intercepted communications between the appellant and Hinojosa, police surveillance,
    physical evidence and expert testimony. The content of the phone conversations,
    including the meaning of coded language as interpreted by an expert witness,
    and the appellants locations flowing from these conversations, lead us to the
    conclusion that the two convictions are far from unreasonable.

[9]

In our view, there is overwhelming evidence that the substance in issue
    in the relevant transactions was cocaine. On October 8, when he was arrested,
    the appellant was in a hotel room with cocaine, 98 unused dime baggies, two
    used dime baggies with cocaine residue, his cell phone and debt lists. Silva,
    the appellants girlfriend, was seen earlier in the hotel room. She was seen
    leaving the premises in a van and was arrested shortly thereafter; she had
    cocaine in a Ziploc bag, similar to the baggies in the hotel room, on her
    person. A few days later, Hinojosa was arrested; he had almost a kilogram of
    cocaine in his residence and a safe at a separate location.

[10]

The reality is that at the relevant times there was a great deal of
    contact between the appellant and Hinojosa and, to a lesser extent, Silva. The
    presence of cocaine in communications and in locations was pervasive. There is
    nothing to suggest that the subject matter of all this activity was methamphetamine,
    not cocaine. The appellants attempt to inject the former substance as a second
    plausible theory based only on one question and answer put to the expert in
    cross-examination is, in our view, fanciful  speculation:
Villaroman
,
    at para. 37.

[11]

Second, the appellant contends that three of the intercepted telephone
    calls between Hinojosa and, respectively, Doug Comeau, Silva and the appellant
    (text message) were improperly admitted into evidence and relied on by the
    trial judge without consideration of, and a ruling on, the test in
R. v.
    Carter
, [1982] 1 S.C.R. 938.

[12]

We agree that the trial judge should have made a ruling on this issue
    and that he erred by saying in his judgment, with respect to one of the calls:
    This is not some exception to the hearsay rule. It is direct evidence of how
    much Hinojosa was charging for one.

[13]

However, this error is of no moment. Even without the three communications
    in issue, the other evidence, described above, overwhelming establishes that
    the substance being possessed for the purpose of trafficking was cocaine.

[14]

The appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


