R. v. Gerrior, 2014 NSCA 76

Nova Scotia Court of Appeal Citation: R. v. Gerrior , 2014 NSCA 76 Date: 20140730 Docket: CAC 418254 Registry: Halifax Between: Walter Allan Gerrior Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: June 18, 2014, in Halifax, Nova Scotia Subject: Evidence: admissibility of hearsay; Criminal law: misapprehension of evidence

Summary: The police arrested the appellant. Incident to his arrest, they seized cell phones, scales, packaging and cutting agent, but only a small quantity of cocaine. While doing paperwork, the arresting officer engaged in text communications with unknown declarants. It was the opinion of an expert that the text communications were about buying cocaine. Other circumstantial evidence was interpreted by the same expert as being consistent with cocaine trafficking.

Based on the body of circumstantial evidence, and the opinion of the expert, the trial judge convicted the appellant of possession of cocaine for the purpose of trafficking. Issues: Were the text communications admissible; and did the trial judge misapprehend the evidence? Result: Appeal dismissed. Despite the hearsay nature of the text communications, they were admissible by applying the principled approach requiring the proponent to demonstrate necessity and reliability. Although the evidence about necessity was not particularly robust, there was ample evidence that the text communications were reliable.

Further, the claimed misstatements of evidence by the trial judge either did not go the substance of the evidence or were not misstatements at all. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Gerrior , 2014 NSCA 76 Date: 20140730 Docket: CAC 418254 Registry: Halifax Between: Walter Allan Gerrior Appellant

v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Beveridge and Bryson, JJ.A. Appeal Heard: June 18, 2014, in Halifax, Nova Scotia Held: Appeal is dismissed per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. and Bryson, J.A. concurring. Counsel: Roger A. Burrill, for the appellant David Schermbrucker and Scott Millar, for the respondent Reasons for judgment: INTRODUCTION [ 1 ] The police arrested the appellant, Walter Gerrior, on March 2, 2012. The police found a small quantity of cocaine in his possession.

The Crown relied on a body of circumstantial evidence, and the opinion of an expert, to argue that the appellant’s possession of the cocaine was for the purpose of trafficking. [ 2 ] Included in the body of circumstantial evidence were three text exchanges to and from a phone seized from the appellant. The texts were between unknown third parties and a police officer, who posed as the appellant. [ 3 ] The trial judge, the Honourable Judge Flora Buchan of the Nova Scotia Provincial Court, over the objection of the appellant, admitted the text exchanges into evidence.

These exchanges will be discussed later. [ 4 ] The trial judge accepted the opinion evidence of the Crown expert, and based on the totality of the circumstantial evidence (including the text exchanges), convicted the appellant of possession of cocaine for the purpose of trafficking. Three years’ incarceration, less remand credit, followed. [ 5 ] The appellant urges this Court to find that the trial judge erred in law in admitting the three text exchanges. He argues that the decision by the Supreme Court of Canada in R. v. Baldree , 2013 SCC 35 , changed the law about admissibility of such evidence.

He also argues that the conviction is unsafe because the trial judge misapprehended the evidence. [ 6 ] If either of these errors were committed, he says an acquittal is called for—to be substituted by a conviction for the lesser and included offence of simple possession of cocaine. [ 7 ] To properly understand the arguments of the appellant, and the task now facing this Court, additional details are required.

WHAT HAPPENED AT TRIAL [ 8 ] The police charged the appellant (also known as Wally Gerrior) jointly with Jana Poirier with having in their possession cocaine on March 2, 2012, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Both elected trial in Provincial Court. [ 9 ] The trial was spread out over five days between November 2012 and March 18, 2013. When final submissions were to be made, the trial judge, at the request of the Crown, dismissed the charge against Ms. Poirier.

The trial judge reserved her decision on the charge against the appellant. She delivered oral reasons on April 25, 2013. I will summarize those reasons later. [ 10 ] The Crown called just four witnesses. All were members of the RCMP. Three had an active role in the investigation, the other offered expert opinion evidence. [ 11 ] On March 2, 2012, Csts. Nelson and Manuel had information that the appellant was in possession of cocaine for the purpose of trafficking. They watched his movements for a short period of time. They saw him leave a residence in Lower Sackville with a male and a female.

All three got in a black Chevrolet Cobalt. [ 12 ] The car stopped at an apartment building a short distance away. The appellant got out and went into an apartment building. He

returned to the car within two minutes. [ 13 ] Csts. Nelson and Manuel arranged for a marked police car to stop the Chevrolet Cobalt. There were three occupants of the Cobalt: the appellant in the front passenger seat; Christopher Horne in the rear seat; and Jana Poirier, the driver. The police arrested all three occupants for possession of cocaine for the purpose of trafficking. They later released Horne without charge. [ 14 ] The police searched the occupants and the car.

The appellant had in his personal possession: two cell phones; a plastic bag containing 1.4 grams of cocaine; cash in the approximate amount of $75; a grey digital scale with cocaine residue; 16 Taladafil pills (erectile dysfunction medication); and two small pieces of tinfoil. [ 15 ] The police also seized from the car: a black digital scale (with cocaine and marijuana residue) from the glove compartment immediately in front of the appellant; 8.2 grams of white powder in a folded green paper from a man’s jacket found on the seat directly behind the appellant; a white Blackberry cell phone on the centre console; and 47 Rabeprazole pills (non- CDSA ). [ 16 ] Cst.

Nelson prepared an Information to Obtain a Search Warrant for the appellant’s residence at 220 First Lake Drive, Lower Sackville, Nova Scotia. The warrant was executed. During the search, the police found, and seized a number of items of interest.

Among them were: a bag of white powder weighing 72 grams; a phone bill addressed to one David Smith of 220 First Lake Drive; a black digital scale with cocaine residue; a USA weigh scale with cocaine residue; a Jennings digital scale with cocaine and marijuana residue; a piece of glass with cocaine residue; two different pills of unknown substance; and a safe. [ 17 ] Cst. Nelson attempted to conduct a cursory search of the cell phones seized. The Blackberry was locked. Even with the assistance of a search warrant no information beyond the number assigned to that phone was discovered.

That was not the case for the black Nokia and red LG found in the possession of the appellant. [ 18 ] On the black Nokia, Cst. Nelson noticed two recent incoming texts from “Denise”. She wanted to see him, but did not know where he was. He then had the following text exchange: Cst. Nelson What u want Denise Half Cst. Nelson Hard Denise No i like it soft never hard xo Denise half hour Xo Cst. Nelson where Denise Where r you Cst. Nelson I only have hard right now Denise I don’t Think this wally Call me Cst.

Nelson Full for 80 later Denise This is not wally who is this Denise what r you talking about Call me [ 19 ] Cst. Nelson did not call “Denise”. Instead the black Nokia began to ring a number of times. The caller ID showed it was “Denise” calling. [ 20 ] There were further text messages received by the black Nokia. Cst. Nelson engaged two of the communicants in text exchanges. One was with someone apparently from Pictou ((902) 240-6829), the other had the moniker of “Big Grill” ((902) 830-4969). The “Pictou” exchanges were: 240-6929 I need an 8 for buddy in pictou coming to see me in the morning Cst.

Nelson U have money 240-6929 Yea in the morning at launch 240-6929 How much it has to Be good Cst. Nelson Hard or soft 240-6929 Soft Cst. Nelson Ill give you a deal on 7 bagg 240-6929 How much Cst. Nelson 280

240-6929 40 each how can that be good 240-6929 Answer boy Cst. Nelson How much he normally pay 240-6929 Not sure Cst. Nelson How about 30 each half nex time 35 tho 240-6929 U ant making any sense [21] The text conversation with “Big Grill” was: Big Grill Hey u there Big Grill Hey u there Cst. Nelson Yeah, what you need? Big Grill Can you fix me up till tomorrow? Cst. Nelson Half? Big Grill Three if you could Cst. Nelson Hard or soft? Big Grill Soft Cst. Nelson You got money? Big Grill Not till tomorrow [22] The Crown called Cst.

Jeffrey Peddle as an expert witness, qualified to give opinion evidence with respect to jargon, use,availability, paraphernalia, distribution, dial-a-dope, stash houses, packaging, sale, price and value of cocaine. The appellant concededCst. Peddle’s qualifications to give such evidence. [23] Cst. Peddle’s opinion evidence touched on the considerable body of circumstantial evidence, which included the results of theCobalt search, the text exchanges for the two cell phones from February 2012 to March 2, 2012, and the results of the search of theappellant’s residence. [24] There is no need to review in detail Cst.

Peddle’s views on the significance of the various paraphernalia found in the possessionof the appellant. It is sufficient to say it was his opinion, despite the low quantity of cocaine seized, that based on the totality of theevidence, the possession of cocaine by the appellant was consistent with an unsophisticated, low-level, dial-a-dope operation. [25] Since it is the complaint of the appellant that the post arrest text messages should not have been admitted, I will refer to hisevidence about these text messages. [26] In relation to the “Denise” exchange, Cst.

Peddle testified that the term “half” is common street jargon for a half gram ofcocaine; and that “hard” means crack cocaine. The phrase “I like it soft, never hard” suggested that the individual wanted to getpowdered rather than crack cocaine. [27] Cst. Peddle also interpreted the jargon used in the “Pictou” exchange. He testified that it was his opinion the person was seeking an “8 ball” which is 1/8th of an ounce, or 3.5 grams of powdered cocaine. The reference to a “7 bag” is the equivalent to 7 gramsof cocaine, in other words, two “8 balls”. It was Cst. Peddle’s opinion that Cst.

Nelson’s offer of 7 grams of cocaine for $40 each was solow that the buyer was surprised and thought the cocaine must be of “garbage quality”; hence the responses by the prospectivepurchaser. [28] Cst. Peddle was not referred to the “Big Grill” text exchange in direct nor cross-examination. [29] The appellant did not call any evidence. Submissions were made by both parties about the admissibility of the text messagespost arrest, and whether the Crown had met its burden in proving that the appellant’s possession of 1.4 grams of cocaine was for thepurpose of trafficking.

The trial judge reserved her decision on both issues. [30] On April 25, 2013 she delivered oral reasons for judgment. With respect to the post arrest text messages, she decided that theydid not offend the rule against hearsay, based on R. v. Ly, (SCC), [1997] 3 S.C.R. 698; R. v. Graham, 2013 BCCA 75;and the dissent in R. v. Baldree, 2012 ONCA 138. She concluded: Based on these authorities, I find that drug purchase calls made by Cst.

Nelson as well as a portion of the text messages from thetwo cell phones seized from the Defendant upon his arrest are admissible as circumstantial evidence of possession of the drugs and canbe used as evidence of the Defendant's intention to traffic. However, to admit any messages earlier than March the 1st, the day prior tohis arrest, would, I find, be prejudicial to the Defendant, and therefore, those are not admissible. [31] The trial judge thoroughly reviewed the evidence, including the opinion evidence given by Cst. Peddle, and found that the

Crown had met its burden. Her reasons for conviction are succinctly set out in her final paragraph: This is a circumstantial case and the burden is on the Crown to prove beyond a reasonable doubt that the Defendant was in possession of cocaine for the purpose of trafficking. Depending on its quality, circumstantial evidence can be just as persuasive as direct evidence. However, before basing a verdict on circumstantial evidence, I must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

And based on all of the evidence and the opinion evidence of Cst. Peddle, which I find credible and trustworthy, I'm satisfied that the only logical conclusion to be reached is that Mr. Gerrior was selling cocaine as a street-level, dial-a-dope trafficker.

The Crown has met its burden, and therefore, I find the Defendant guilty of the Section 5(2) CDSA count, and as a result, also guilty on the two breaches of probation matters. [ 32 ] I can now return to re-state the issues: the appellant claims that the trial judge erred in her ruling on admissibility of the post- arrest text exchanges; and the trial judge misapprehended the evidence, which led her to improperly conclude that the only rational inference to be drawn from the evidence was the guilt of the appellant. I will deal with each in turn.

ADMISSIBILITY OF THE POST-ARREST TEXTS [ 33 ] The trial judge’s decision was rendered on April 25, 2013. The Supreme Court of Canada’s decision in Baldree was released June 19, 2013. The Court was unanimous in deciding that implied assertions, when offered to prove the truth of the assertions, offend the hearsay rule. They are presumptively inadmissible. To gain admission, they must survive the principled analysis requiring the proponent to demonstrate the threshold requirements of necessity and reliability. [ 34 ] In this case, the trial judge did not conduct such an analysis.

She can hardly be faulted for not having done so, since the parties did not suggest that she should. The parties now urge this Court to do the analysis based on the trial record.

I agree that it is appropriate to do so. [ 35 ] The appellant says necessity is not made out because the police chose to do nothing to discover the identity of the parties to the text exchanges, and the texts are not reliable due to the vague and confusing language used. [ 36 ] The Crown acknowledges that the evidence as to necessity is perhaps marginal, but any perceived deficiency in that regard is made up by ample evidence to support a finding of threshold reliability, not the least of which is the fact that there were three separate communicators trying (in the opinion of Cst.

Peddle) to obtain cocaine from a person whom they believed to be the appellant. [ 37 ] The principles to be applied to determine admissibility based on necessity and reliability are not controversial (see for example: R. v. Poulette , 2008 NSCA 95 at ¶18-26). They were front and centre in the ultimate outcome in Baldree . [ 38 ] In that case, the trial judge was required to rule on the admissibility of the content of a phone conversation when a police officer fielded a call on Mr. Baldree’s cell phone. A male voice asked for the accused by name.

The officer posed as the person running the show in Baldree’s absence. The caller gave a specific address and requested an ounce of weed for the usual price that Baldree charged ($150). The police made no effort to find out the identity of the caller despite having his specific address. [ 39 ] The trial judge (as the trial judge in this case) relied on R. v. Ly , supra , and other authorities, to find the content of the call admissible as circumstantial evidence. On appeal, the Ontario Court of Appeal split in result. Watt J.A. agreed with the trial judge that the drug purchase call was not hearsay.

Feldman J.A. concluded that the call was hearsay and inadmissible as it failed both the necessity and reliability criteria, and because its probative value was outweighed by its prejudicial effect. Blair J.A. expressed some uncertainty, but on balance, favoured the analysis and conclusions of Justice Feldman. A new trial was ordered. [ 40 ] The Crown’s appeal to the Supreme Court of Canada was by right due to the dissent by Justice Watt. The majority reasons were written by Justice Fish. Moldaver J. agreed, in the main, with the reasons penned by Fish J.

He wrote separately to express his concern about the majority’s perceived endorsement of the need, in some circumstances, for the proponent to demonstrate that all reasonable steps had been taken to secure the evidence of the declarant. [ 41 ] Fish J. found that the decision of the Supreme Court in R. v. Ly did not suggest, let alone decide, that an implied assertion, tendered for the truth of its contents, did not offend the hearsay rule.

He observed that the issue had divided the lower courts in Canada for more than 50 years, but that the highest courts in England and Wales, and Australia had concluded that the hearsay rule governs implied assertions. Justice Fish agreed with this conclusion (and that of Feldman J.A. in the Ontario Court of Appeal). He also agreed with Justice Feldman that the evidence did not pass the principled analysis. [ 42 ] As to necessity, Fish J., emphasized that the police made no effort whatsoever to secure the evidence of the declarant, and offered no explanation as to why they did not even try.

He wrote: [68] In Khelawon , necessity was conceded. Justice Charron nonetheless took care to note that in an appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party. [para. 104] This is the kind of "appropriate case" contemplated by Khelawon . And the answer is that the police made no effort at all to secure the evidence of the declarant: they never sought to interview or even find him, though he gave them his address .

Moreover, there was no explanation offered as to why no efforts were made to locate the declarant. [ 43 ] Justice Fish was equally succinct in finding that the single call failed to meet the threshold for reliability: [69] Nor is the single telephone call in this case sufficiently reliable. As Feldman J.A. found in the court below, "[t]here was no basis to say that the caller's belief was reliable without testing the basis for that belief by cross-examination" (para. 146).

Indeed, this is not a situation "in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its

purposes had been already substantially accomplished": Khelawon, at para. 62, quoting Wigmore on Evidence, at s.1420 [44] But in the case at bar, there was not just one call, but three coded conversations, which in the uncontested opinion of Cst.Peddle, were about obtaining cocaine from the appellant. Does this make a difference? In these circumstances, I find that it does. Justice Fish specifically acknowledged that the existence of multiple calls could inform the analysis of necessity and reliability.

Hewrote as follows: [70] In concluding as I have, I take care not to be understood to have proposed a categorical rule for drug purchase calls.

Although thecall at issue here does not withstand scrutiny under the principled approach, this need not always be the case. [71] For example, where the police intercept not one but several drug purchase calls, the quantity of the calls might well sufficein some circumstances to establish reliability -- indeed, while "[o]ne or two might [be] mistaken, or might even have conspired toframe the defendant as a dealer", it would "def[y] belief that all the callers had made the same error or were all party to thesame conspiracy": I. H.

Dennis, The Law of Evidence, (4th ed. 2010), at p. 708. [72] Moreover, the number of callers could also inform necessity. The Crown cannot be expected, where there are numerousdeclarants, to locate and convince most or all to testify at trial, even in the unlikely event that they have supplied their addresses -- as in this case. And it is important to remember that the criteria of necessity and reliability work in tandem: if the reliability of theevidence is sufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, and R. v.

U. (F.J.), (SCC), [1995] 3 S.C.R. 764. [Emphasisadded] [45] The danger in admitting hearsay is that the evidence may not be true. A trier of fact may be misled by relying on such evidencethat has not been tested by in-court cross-examination that could expose problems with perception, memory, narration and sincerity (R. v.Khelawon, 2006 SCC 57, at ¶2). [46] Here, two of the out-of-court statements were recorded by the mobile service provider, and reproduced by means of aproduction order[1].

There could be no dispute about the completeness of the communications or the absent declarant havingmisperceived the actual exchange of information contained in the text messages, nor accurately recalling what was said.

In my opinion,this goes a long way towards satisfying the threshold requirement of reliability. [47] Ultimate reliability, that is, the truth of the implied assertion that the appellant was a person who was trafficking in cocaine is adifferent issue—although it is clear that other evidence tending to confirm the truth (i.e., the ultimate reliability) of the implied assertionis relevant to the admissibility analysis (R. v.

Khelawon, at ¶93-100). [48] In this regard, the Crown points to the evidence within the text messages themselves, and to the considerable body of othercircumstantial evidence, including a number of pre-arrest texts for commerce in cocaine, all of which tend to support the reliability of theimplied assertion that the appellant was an individual who trafficked in cocaine. I agree. [49] The Crown is right to suggest that the evidence about necessity could have been stronger.

Nonetheless, there is evidence thatclearly suggests that police efforts would not likely have borne fruit to establish the identity, and hence ability to try to secure thecommunicators’ attendance at trial. [50] Both Cst. Nelson and Cst. Peddle gave evidence that support the conclusion that the prospects of actually locating the declarantswere pretty dim. Cst. Nelson was cross-examined on the fact that he chose not to pursue production orders for service providers to obtaininformation about the subscribers for the phone numbers associated with the texts.

In re-direct, he explained that he has experiencedmany circumstances where a third party has signed up for cell phones for others; and if the phone is a ‘pay as you go’ there is norequirement for identification—any name can be given. In other words, a lot of times the phone information does not come back in thesame name as the person actually in possession of it. [51] Cst. Peddle was more colourful about the practice of the use of fictitious names or the use of nominees.

Based on his expertise,and his own practice of having done so, he testified: …You can go to Telus or anywhere else and you can be Mickey Mouse if you want to living at 123 Walt Disney World. There’s noquestions asked really. Just put your minutes on your phone and you’re good to go. [52] I do not suggest a general rule can be laid down that police are never expected to make reasonable efforts to determine theidentity of an unknown declarant. But the circumstances in this case are a far cry from those in Baldree, where the police knew theprecise location of the sole declarant.

Here, the police knew neither the location nor the identity of the declarants; they only had adubious chance of discovering accurate information on those topics. [53] Further, even if accurate coordinates surfaced on these declarants, it seems rather fanciful that the declarants would havetestified about their text communications with the appellant. [54] The appellant does not dispute that the criteria of necessity and reliability work in tandem. That is, if the reliability of theevidence in issue is sufficiently established, the necessity requirement can be relaxed (Baldree at ¶72).

Any deficiencies concerning thenecessity of admitting these calls without the declarant’s presence at trial is overcome by the evidence demonstrating the reliability ofthe out of court communications. [55] Although the trial judge erred in not subjecting the text messages to the principled analysis, they are nonetheless admissible asmeeting the threshold requirements of reliability and necessity. [56] At the appeal hearing, we asked the appellant if he had any submissions as to the potential for this Court, assuming we were tofind the evidence survived the principled analysis, to nonetheless exclude the evidence on the basis that the probative value of the

evidence was outweighed by its prejudicial effect. The appellant wished to consider this issue and provide written submissions. He didso by way of a supplemental factum. The Crown responded in like fashion. [57] The appellant acknowledges that the trial judge was aware of her residual discretion to exclude evidence that lost in thebalancing of prejudicial effect and probative value. She excluded some of the pre-arrest texts on that basis.

The appellant concedes that,at least implicitly, the trial judge found that the probative value of the post-arrest texts exceeded their prejudicial effect, and thatappellate deference is owed to such a determination. [58] Quite apart from the issue of deference, the appellant, at trial and on appeal, did not point to any prejudicial effect that mightflow from admission of the post-arrest texts on the basis that admission might lead to improper propensity reasoning or otherwise triggerfair trial concerns. The evidence is highly probative.

I therefore see no basis to exercise our residual discretion to exclude otherwiseadmissible evidence. [59] I would not give effect to this ground of appeal. In light of my conclusion, I need not deal with the Crown’s alternativeargument that even if the admission of the evidence amounted to an error of law, this Court should invoke the proviso (s. 686(1)(b)(iii))on the basis that conviction was inevitable. MISAPPREHENSION OF EVIDENCE [60] There is no dispute between the parties about the principles that govern consideration of a complaint that a judgemisapprehended the evidence.

To secure a remedy on appeal, an appellant must demonstrate that the trial judge in fact misapprehendedthe evidence, and that the misapprehension was substantial and played an essential role in the decision to convict (see R. v. Izzard, 2013NSCA 88). [61] A misapprehension can be said to have occurred if a judge fails to take into account relevant evidence, is mistaken about thesubstance of the evidence or fails to give proper effect to evidence. If made out, such an error can lead to an unreasonable verdict, amiscarriage of justice or amount to legal error (R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.),[1995] O.J. No. 639.) [62] The appellant’s complaints focus on claimed errors by the judge about certain evidence, in particular: the trial judge’s recitationof pre-arrest text messages; referring to cocaine when the expert used the word “drug”; and her assessment of the “Call Wally” texts. [63] With respect, I am not convinced that the trial judge got the substance of the evidence wrong, or otherwise misapprehended theevidence. Pre-arrest texts [64] In her oral reasons, the trial judge referred to the pre- and post-arrest text messages and Cst.

Peddle’s opinion about what isbeing discussed. She said, in part: On those texts then and the texts of Cst. Nelson, Cst. Peddle opined that the language used in several of these text messages is consistentwith drug trafficking. For example, the call of March the 1st, 2012, at 18:56:25 proceeds as follows: "Comin' in. You got any goodies. Not sure. Whatta mean, not sure? Try to find something good. What kind of text was that? I don'tknow how many you want. I know where you can get it. How many? Call me on the way. I out driving downtown. Okay. How muchis it? Too much, 80. K. How many you want? It is the bomb.

Yeah man, that's garbage. Too much. I am checking another guy out. Okay. It is hard to find. I am going to find something better now. I will drop over." Cst. Peddle interprets that exchange as someone contacting the Defendant about the sale of cocaine, that it would be eighty dollars ($80)a gram and is the bomb, meaning it is really good. The Defendant advised the caller that the price was too high and he was going tocheck another person out. [65] The appellant complains that the quoted words set out by the trial judge are not accurate. He says there were parts of othertexts interspersed into the quoted message.

The appellant is correct, but the slip in including some snippets that the appellant exchangedwith other individuals in no way impacts on the substance of the text exchange, nor on the trial judge’s view about the significance of thetexts. That is, her conclusion, supported by the opinion of Cst.

Peddle, that the text communications between the appellant and someoneelse at 18:56 were about the sale of cocaine. [66] The actual exchange commencing at 18:56 was: 240-6929 Comin in u got any goddies the appellant No sure 240-6929 [incomprehensible string of letters] 240-6929 What a mean not sure the appellant Try to find something good the appellant What kind of tex was that 240-6929 I don t know how many u won t 240-6929 I now were u can get it

the appellant How many the appellant How much is it 240-6929 To much 80 the appellant K 240-6929 How many u won t 240-6929 It is the bomb the appellant To much i am checking another guy out. [ 67 ] The texts added by the trial judge into her recitation of the communication were: 789-0819 Call me on the way I out driving downtown the appellant K 877-4247 Ya man that's garbage the appellant I am going to find something better now i will drop over [ 68 ] I see no error by the trial judge that would meet the stringent standard required to meet the legal test of a substantial misapprehension that played an essential role in the decision to convict. [ 69 ] The appellant also complains that the trial judge overstated the evidence of Cst.

Peddle when she said: “Cst. Peddle interprets that exchange as someone contacting the Defendant about the sale of cocaine, that it would be eighty dollars ($80) a gram and is the bomb, meaning it is really good”. The appellant says that Cst. Peddle actually testified that he interpreted the exchange as the appellant was looking to get re-supplied, and inquiries were being made about “the price of and quality of a drug”. [ 70 ] Again, the appellant is technically correct. Cst. Peddle did not specifically use the word “cocaine”, but it is obvious that cocaine was the drug Cst. Peddle was talking about. Cst.

Peddle had already testified about the price range for a gram of cocaine, depending on quality, to be eighty to one hundred dollars. I see no misapprehension by the trial judge concerning this evidence. “Call Wally Texts” [ 71 ] The appellant, using his two cell phones, sent 16 texts to various recipients on March 1, 2012 that simply said “Call Wally”. Cst. Peddle’s opinion was that this was consistent with a trafficker getting the word out to his clients that he has “product” in stock for sale. The trial judge referred to this evidence as follows: According to Cst. Peddle, this indicates that Mr.

Gerrior was putting the word out to his customers to let them know that he is in possession of product for sale. Traffickers will shut their phones off when they are out of stock and will turn them back on when they have product. [ 72 ] The appellant argues that having ‘product’ for sale and ‘cocaine’ for sale are two different things. In other words, the trial judge erred by interpreting Cst. Peddle’s opinion as a reference to cocaine. [ 73 ] With respect, I see no error by the trial judge, let alone one that could be interpreted as a misapprehension of this evidence. Cst.

Peddle’s testimony is riddled with references by him to “product” where it is obvious he is referring to cocaine. Cst. Peddle was aware that drug traffickers sometimes have other “product” for sale. He did not rule out that the appellant may have had commercial dealings in other drugs, but that did not detract from his opinion, and the considerable body of circumstantial evidence, that the appellant was in the business of selling cocaine. [ 74 ] As pointed out by the respondent, two of the three individuals with whom Cst.

Nelson had text communications had received a “Call Wally” or similar text on the day of the arrest. The expert opinion evidence, accepted by the trial judge was that these communications involved attempts to buy cocaine from the appellant. [ 75 ] The inference drawn by the trial judge that the product in question here was cocaine is amply supported by the evidence. I would not give effect to this ground of appeal. [ 76 ] Although the trial judge erred in not subjecting the post-arrest text exchanges to the requisite principled analysis, the texts pass the bar to gain admission.

The trial judge did not misapprehend the evidence. I would dismiss the appeal. Beveridge, J.A. Concurred in: MacDonald, C.J.N.S. Bryson, J.A.