R. v. Dritsas (K.), 2014 MBCA 85

Citation: R. v. Dritsas (K.), 2014 MBCA 85 Date: 20140922 Dockets: AR 13-30-08028; AR 13-30-08032 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) Z. I. Garber ) for K. Dritsas ) Respondent/Appellant ) R. L. Rankin and ) K. R.

Hawkins ) for the Crown - and - ) ) Appeals heard and ) Decision pronounced: KOSMAS DRITSAS ) September 15, 2014 ) ) Written Reasons: (Accused) Appellant/Respondent ) September 22, 2014 CAMERON J.A. (for the Court): [ 1 ] The accused appeals his convictions for two counts of possession of cocaine for the purpose of trafficking, one count of conspiracy for the purpose of trafficking cocaine and one count of possession of proceeds of crime. He also seeks leave to appeal and appeals his sentence.

The Crown applies for leave to appeal and appeals sentence. [ 2 ] At the conclusion of the hearing, we dismissed the conviction appeal with brief reasons to follow, reserved on the accused’s sentence appeal and denied the Crown’s application for leave to appeal.

What follows are our reasons for denying the conviction appeal. [ 3 ] Regarding the first count of possession of cocaine for the purpose of trafficking, the accused argued that, in light of the fact that he was jointly charged with his father and the Crown did not call any evidence relating to joint possession of cocaine with his father, the Crown had failed to prove the charge as laid out in the indictment. In our view, there was no merit to this ground. [ 4 ] The charge against the father was stayed prior to the commencement of the accused’s trial, but not prior to the direct indictment being sworn.

At the hearing, counsel for the accused agreed that the accused knew the case he had to meet. A review of the record showed that he was not misled or prejudiced and that his defence did not in any way rely on involvement by the father with respect to this count. The trial judge correctly held that the inclusion of a co-accused by way of a joint charge did not constitute an essential element of the offence to be proven beyond a reasonable doubt. Further, it is trite law that where a number of persons are charged on an indictment, liability is joint and several. (See R. v.

D.A.H. et al. (1997), 99 B.C.A.C. 123 .) While it might have been preferable if the Crown had amended the information to more accurately reflect its theory, that was not fatal to the conviction on the charge for which he was tried. [ 5 ] With respect to the remaining three counts, the accused argued that the verdicts were unreasonable in that the evidence relied on to convict him was insufficient.

Included in his arguments were allegations of unreasonable inferences relating to the nature of the substance the accused was alleged to have possessed or conspired to possess (i.e., cocaine) and that the money that was seized from him and from his residence was proceeds of crime. [ 6 ] In cases such as this, the accused’s guilt is typically determined by drawing inferences from proven facts. The trial judge gave lengthy and detailed reasons explaining the facts she found and the inferences she drew. Absent palpable and overriding error, her findings were entitled to deference.

In attempting to explain the unreasonableness of the trial judge’s findings, the accused

engaged in a piecemeal breakdown of the circumstantial evidence without regard to the totality of the evidence. As we have said on numerous occasions, “evidence must be taken as a whole and its cumulative effect is to be considered when making the assessment on the reasonableness of any inferences to be drawn” ( R. v.

Eckstein (S.M.) , 2012 MBCA 96 at para. 22 , 288 Man.R. (2d) 26). [ 7 ] The evidence in this case included months of intercepted communications, video and live surveillance, and periodic sampling of the substances found in the place where the accused was alleged to have stored the cocaine and where his co-accused processed it (the lab). It included evidence that was seized from the accused at the time of his arrest and as a result of search warrants executed at his residence and the lab.

It also included expert opinion evidence regarding coded language used in the intercepts and the strategies used by the accused and others to conduct their illegal operation and to avoid detection. When the evidence is taken as a whole, we are all of the view that the accused did not demonstrate that the trial judge made any palpable and overriding error on the facts or inferences drawn therefrom.

Moreover, we are of the view that it was reasonably open to her to make the findings of fact and draw the inferences she did to conclude that the accused was guilty on all counts. [ 8 ] Specifically, with respect to count two, possession of proceeds of crime, the intercepted communications, the video and live surveillance, and the finding of three bundles of Canadian currency in the bathroom of his residence justified the trial judge’s inference that the accused was in possession of monies exceeding $5,000 which had been collected for cocaine debts. [ 9 ] Regarding count three, conspiracy for the purpose of trafficking cocaine, we disagreed with the accused’s argument that there was insufficient evidence to prove that the substance involved was cocaine or that the conversations relied on constituted a conspiracy to traffic in that drug.

Save for a small amount of another drug found on the premises, the entire operation that was conducted from the lab was geared toward the cocaine business. Indeed, the accused agreed that one of the co-accused was processing and trafficking cocaine. Surreptitious searches of the premises revealed the presence of significant quantities of cocaine and an agent typically used to “break down” cocaine. The trial judge was also able to rely on expert evidence relating to the way cocaine is packaged and shipped at the kilogram level, as well as the coded language used by the conspirators.

In the end, we were not persuaded that appellate intervention was warranted. [ 10 ] Finally, regarding the fourth count consisting of one incident of possession for the purpose of trafficking of three kilograms of cocaine, again, the accused argued that there was insufficient evidence to prove that the drug he was alleged to have trafficked on that day was cocaine. The intercepted communications clearly showed that he was to receive the three kilograms of cocaine from a female on the date of the incident and he was observed to do so.

He took the substance to the lab and, consistent with the intercepted communications, gave it to the co-accused. While the video was not clear as to exactly what the co-accused did with the cocaine, the trial judge found him to be reaching toward the ceiling with it. She noted that the co-accused had placed cocaine and similarly packaged items in the ceiling and cocaine was found there during other covert entries to the lab. She also noted that two days after the delivery, two one-kilogram bricks of cocaine and part of a third were found in the lab.

Again, taken with the expert opinion evidence regarding the conversations about the purchase and movement of the cocaine, there was evidence to support the finding made by the trial judge. [ 11 ] In the end, we remained unconvinced that the trial judge made any palpable and overriding error in the facts she found and inferences she drew. When the evidence was considered in its entirety, it could not be said that a properly instructed jury, acting judicially could not have rendered the verdict. [ 12 ] For these reasons we dismissed the conviction appeal. J.A. C.J.M. J.A.