





CITATION:
R. v. Bodenstein, 2011 ONCA 737



DATE: 20111124



DOCKET: C53989



COURT OF APPEAL FOR ONTARIO



Feldman, Simmons and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Mark Bodenstein



Appellant



Vincenzo Rondinelli, duty counsel, for the appellant



Croft Michaelson, for the respondent



Heard and released orally:
November 15, 2011



On appeal from the conviction
          entered by Justice I.V.B. Nordheimer of the Superior Court of Justice on July
          13, 2010.



ENDORSEMENT



[1]

The appellant appeals his conviction for trafficking in cocaine in
    association with a criminal organization.  He argues that the transaction in
    question was a one-time occurrence and that it had nothing to do with his and
    the other participants membership in the Hells Angels.

[2]

The trial judge addressed this issue thoroughly in his reasons.  The
    following facts were factors that led the trial judge to conclude that the
    transaction was in association with the Hells Angels:

1.
           The appellant and the police agent were both full patch members of the
    Hells Angels;

2.
           They met on a social cruise function held by the Hells Angels;

3.
           The police agent obtained the appellants pager number through the
    Toronto Clubhouse; and

4. 
          The wiretaps indicated that there were to be further transactions.

[3]

The trial judges legal reasoning on this issue was
    subsequently referred to with approval by this court in
R. v. Drecic
,
    2011 ONCA 118, at para. 3.
This ground of appeal fails.

[4]

The appellant also submits that the trial judge erred in
    admitting the expert testimony of Sergeant Davis regarding the Hells Angels. 
    Again, we do not agree.

[5]

It is clear from the trial judges reasons that he did not
    make improper use of the experts opinion.  In particular, he stated at p. 1637
    of the Reasons in the Appeal Book:

The defence takes issue with Detective Sergeant Davis as an
    expert and with his opinion.  On the first point, I note that there was no
    direct attack against Detective Sergeant Davis qualifications.  In any event,
    having reviewed his curriculum vitae, I am satisfied that he is properly
    qualified as an expert in the activities, organization and objectives of
    motorcycle gangs in general and the Hells Angels in particular.  On the second
    point, I am satisfied that Detective Sergeant Davis opinion meets all of the
    requirements set out in
R.
    v. Mohan
, [1994] 2 S.C.R. 9.  In particular, his opinion is relevant
    and it is necessary to assist me as the trier of fact in determining the issue
    to which his opinion is directed.

[6]

Even if Sergeant Davis opinion should not have included his conclusion
    on the ultimate issue of criminal organization, there is no harm in this case
    because the trial judge found that the totality of the evidence heard
    overwhelmingly demonstrated that the Hells Angels motorcycle club is a criminal
    organization.

[7]

The appellant also submits that he was acting only as an agent of the
    police agent.  This argument, however, is belied by the plea of guilty to
    trafficking in cocaine.

[8]

Although there was no sentence appeal, the appellant submits that he
    should have been given more credit for pre-trial custody.  This issue was fully
    canvassed and considered by the trial judge and there is no basis to interfere
    with his decision on the issue.

[9]

In the result, the appeal is dismissed.

Signed:           K. Feldman J.A.

Janet
    Simmons J.A.

David Watt
    J.A.


