



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cowan, 2021 ONCA 729

DATE: 20211018

DOCKET: C67628

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Cowan

Appellant

Chris Rudnicki, for the appellant

Victoria Rivers, for the respondent

Heard: October 8, 2021 by video conference

On appeal from the conviction on a charge of possession of
    cocaine for the purpose of trafficking entered by Justice R. Khawly of the
    Ontario Court of Justice on August 16, 2019; and on appeal from the sentence of
    nine months imposed on November 8, 2019.

REASONS FOR DECISION


[1]

The appellant was convicted of possession of cocaine for the purposes of
    trafficking and received a sentence of 9 months. He appeals his conviction. If
    the conviction appeal fails, the appellant seeks leave to appeal his sentence
    and, if leave is granted, appeals his sentence. He asks the court to impose a
    conditional sentence.

The Conviction Appeal

[2]

This was a simple single-issue trial. The appellant admitted he was in
    possession of a significant amount of cocaine when he was arrested. He also
    admitted that it had been packaged for resale. He testified, however, that all
    of the cocaine was for his personal use. Counsel argued the appellant should be
    convicted of the included offence of possession of cocaine.

[3]

The appellant was arrested and found in possession, both on his person
    and in his vehicle, of about 64 grams of cocaine. Most of the cocaine had been
    separated and packaged into about 65 baggies, each containing a street-level
    quantity of that drug. In short, the quantity and the packaging of the cocaine found
    in the possession of the appellant strongly suggested he was in possession of
    the cocaine for the purposes of resale.

[4]

Three days before his arrest, the appellant was under video surveillance
    by his employers, who suspected him of theft. The video surveillance captured
    the appellant meeting with several individuals in his vehicle at various
    locations. Generally speaking, each individual was in the appellants vehicle
    for a minute or two before leaving.

[5]

In his evidence, the appellant acknowledged he used crack cocaine. He admitted
    he had possession of the cocaine seized from his person and vehicle. The
    appellant testified he purchased the cocaine from a dealer with whom he had some
    prior connection. The cocaine was already packaged in individual baggies ready
    for resale. The dealer explained to the appellant he had repossessed the drugs
    from one of his sellers when the seller had defaulted on payment. The dealer was
    driving north from Toronto to Muskoka and did not want to take the drugs with
    him in his vehicle. The dealer offered all of the cocaine to the appellant at a
    substantially reduced price.

[6]

The appellant testified he purchased the drugs and took possession of
    them in their individual baggies. The drugs were, however, exclusively for his personal
    use.

[7]

The appellant explained that the several meetings captured on the video
    surveillance related to his shoe resale business. Some involved the sale of
    shoes and others involved collecting money owed on the previous sale of shoes.

[8]

The video surveillance appeared to show that two of the several people
    who met with the appellant in his vehicle may have been purchasing shoes. The
    appellant was a shoe hoarder and had literally hundreds of pairs of shoes in
    his apartment. The Crown did not allege any illegality relating to the
    appellants acquisition or resale of the shoes.

[9]

The grounds of appeal on conviction arise out of the trial judges
    application of the burden of proof.

[10]

When, as in this case, the appellant testifies and denies the
    allegation, the trial judge should approach the burden of proof by asking the
    three questions laid down in
R. v. W. (D.)
(1991), 63 C.C.C. (3d) 397
    (SCC):

·

Does
    the trial judge believe the accuseds explanation?

·

If
    the trial judge does not believe the accuseds explanation, does that
    explanation leave the trial judge with a reasonable doubt?

·

If
    the evidence of the accused is not believed and does not leave the trial judge
    with a reasonable doubt, has the Crown proved guilt beyond a reasonable doubt based
    on the evidence the trial judge does accept?

[11]

Counsel agree that, on the evidence, the outcome of the case turned on
    the answer to the first two questions posed in
W. (D.)
. Counsel agree,
    and so do we, that if the evidence of the accused was rejected and did not
    leave the trial judge with a reasonable doubt, the remainder of the evidence
    established beyond any doubt that the appellant had possession of the cocaine
    for the purposes of trafficking.

[12]

The trial judge indicated he did not believe the appellants evidence.
    He then turned to the second question posed in
W. (D.)
and asked
    whether the appellants evidence could reasonably be true.

[13]

The phrase could reasonably be true should be avoided. It can imply
    that the accused carries the onus of demonstrating the existence of a
    reasonable doubt: see
R. v. Rattray
, 2007 ONCA 164, at para. 13. The
    ultimate question on appellate review is not, however, whether the trial judge
    used an inappropriate phrase, but whether the trial judge correctly applied the
    burden of proof.

[14]

With respect to the first question  did the trial judge believe the
    accused  counsel for the accused at trial candidly and correctly acknowledged
    that the appellants denial that he had possession of the cocaine for the
    purposes of resale strained credulity in all of the circumstances. She urged
    the trial judge, however, to take into account the appellants apparent mental disorder
    when assessing his evidence.

[15]

As has repeatedly been stated, this court must defer to credibility
    assessments made at trial. We see no error in the manner in which the trial
    judge assessed the credibility of the appellants evidence. The trial judge
    tested that evidence against the trial judges notions of common sense, human
    experience and logic. Triers of fact are required to do exactly that:
R. v.
    Calnen
, 2019 SCC 6, at para. 112.

[16]

We do not agree that, in assessing the appellants evidence, the trial
    judge invoked negative stereotypes based on the appellants economic
    circumstances and lifestyle. Nor did the trial judge introduce new
    considerations not arising from the evidence into his fact-finding. The trial
    judge focused on the evidence. In his view, the appellants explanation as to
    how he came to be in possession of a significant amount of cocaine, packaged
    for resale, but intending to use all of the cocaine himself, was incredible.

[17]

With respect to the second question posed in
W. (D.)
 does
    the accuseds evidence leave the trial judge with a reasonable doubt  we are
    satisfied, despite the inappropriate language used by the trial judge, that, on
    this record, the trial judges conclusion the appellants evidence could not
    reasonably be true was tantamount to a finding that he was not left with a
    reasonable doubt based on that evidence.

[18]

The conviction appeal is dismissed.

The Sentence Appeal

[19]

The appellant is not a Canadian citizen, although he has been in Canada
    for 26 years. He is subject to deportation on account of this conviction. The
    parties agree the trial judge misapprehended the potential likelihood of
    deportation if the appellant received a sentence of 6 months or more. They also
    agree that this misapprehension of a significant collateral consequence warrants
    a
de novo
assessment of the fitness of the 9-month sentence imposed by
    the trial judge.

[20]

At the time of trial, the statutory minimum in place prohibited the
    granting of a conditional sentence. This court struck down the mandatory minimum
    in
R. v. Sharma
, 2020 ONCA 478. The appellant submits that a
    conditional sentence can and should be imposed.

[21]

Crown counsel acknowledges that a conditional sentence is now available,
    but submits that the sentence was nonetheless fit. In the alternative, Crown
    counsel submits that if the sentence is varied, it should be varied to
    something slightly less than 6 months, to be followed by a period of probation.

[22]

The appellant is, for all intents and purposes, a first offender. The
    circumstances of the offence indicate the appellant was engaged in low-level
    trafficking. His personal circumstances strongly suggest the appellants mental
    disabilities played a central role in the appellant ending up selling drugs
    from his vehicle. In our view, a conditional sentence with appropriate terms
    can serve the ultimate purpose of sentencing and properly reflect a
    consideration of the applicable sentencing principles.

[23]

At the request of the court, counsel drafted suggested terms should the
    court decide to impose a conditional sentence. We are in substantial agreement
    with those terms.

[24]

The sentence is varied to a conditional sentence of 12 months on the
    following terms. The appellant will:

a.

Keep the peace and be of good behaviour;

b.

Appear before the court as directed;

c.

Report to a supervisor within 1 week after this courts decision is
    released and thereafter as directed by the supervisor;

d.

Remain in Ontario, unless written permission to leave Ontario is first
    obtained from the court or the supervisor;

e.

Notify the court or the supervisor in advance of any change of name or
    address and promptly notify the court or the supervisor of any change in
    employment or occupation;

f.

Reside at an address approved by the supervisor;

g.

For the first 7 months of this order, remain in his residence at all
    times except,

(i)
    between the hours of 12:00 p.m. to 4:00 p.m. on Sundays in order to acquire the
    necessities of life;

(ii)
    for any medical emergencies involving the appellant or any member of his
    immediate family;

(iii)
    while going directly to and from court appearances, religious services and
    legal, medical or dental appointments; and

(iv)
    while going directly to, from and while at a place of work approved by the
    supervisor.

h.

For the last 5 months of this order, remain in his residence between the
    hours of 10:00 p.m. and 5:00 a.m., except for medical emergencies involving the
    appellant or a member of his immediate family;

i.

Attend and actively participate in all assessments, counselling or
    rehabilitative programs as directed by the supervisor and complete them to the
    supervisors satisfaction;

j.

Sign release forms as required to enable the supervisor to monitor the
    appellants attendance and completion of any assessments, counselling or
    rehabilitative programs; and

k.

Do not possess any weapons, as defined by the
Criminal Code
.

Conclusion

[25]

The conviction appeal is dismissed. Leave to appeal sentence is granted,
    the appeal is allowed, and the sentence is varied in accordance with these
    reasons.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


