



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdella, 2018 ONCA 789

DATE: 20180928

DOCKET: C63236

Watt, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ganno Abdella

Appellant

James N. Frost, for the appellant

Jacob Sone, for the respondent

Heard and released orally: September 25, 2018

On appeal from the conviction entered on October 21, 2016
    and the sentence imposed on March 28, 2017 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was convicted of trafficking heroin and
    possession of the proceeds of crime. She was sentenced to a term of
    imprisonment of 26 months less credit of 3 days for time spent in
    pre-disposition custody.

[2]

The appellant challenges her conviction on the grounds that the trial
    judge erred in three respects, that is to say:

i.

by concluding that the Crown had proven the case against her beyond a
    reasonable doubt;

ii.

by engaging in impermissible speculation rather than drawing permissible
    inferences; and

iii.

by failing to consider other evidence that ran contrary to the findings
    made by the trial judge.

[3]

The appellant acknowledges that the trial judge identified the correct
    principles applicable when the case for the Crown consists wholly or
    substantially of circumstantial evidence. Where the trial judge failed,
    according to the appellant, was in finding the onus and standard of proof
    satisfied by the evidence adduced by the Crown.

[4]

We are not satisfied that the conclusion reached by the trial judge was
    the product of impermissible speculation rather than reasonable inference. In
    our view, it was open to the trial judge to infer that the appellant was the
    unknown caller whose communications with the target, Aden, were intercepted
    under a Part VI authorization. It was also a reasonable inference from the
    substance of one of those intercepted communications that a prior transaction
    had taken place between the caller and Aden, even though it was not itself the
    subject of an interception on any of Adens phones monitored during the
    investigation.

[5]

In addition to the intercepts, the uncontroverted evidence was that the
    appellant entered Adens vehicle on one side of Bloor Street, remained inside
    for about 30 seconds while the vehicle made a turn in heavy traffic, then got
    out on the other side of the street. The appellant, who was apprehended as she
    walked away from the vehicle, had $700 in her hand. For his part, Aden had 6.32
    grams of heroin in his sock when he was arrested shortly after the appellant
    left the car.

[6]

The trial judge considered several alternative inferences advanced by
    defence counsel at trial. After setting out those alternatives, the trial judge
    concluded:

I do not accept the alternative inferences suggested by the
    defence as other plausible theories or other reasonable possibilities based
    on logic and experience applied to the evidence, or absence of evidence.

[7]

In our view, the trial judge was entitled to reject trial counsels
    submissions about what counsel characterized as alternative inferences. We
    agree that these alternatives were not reasonable inferences arising from the
    evidence, rather constituted impermissible speculation.

[8]

In the result, the appeal from conviction is dismissed. The appeal from
    sentence is dismissed as an abandoned appeal.

David Watt J.A.

L.B. Roberts J.A.

Gary T. Trotter J.A.


