HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 745

CITATION : R. v. Magdales , 2017 ONCJ 745 DATE : November 8, 2017 COURT FILE No .: Halton Region, Central West 15-2105 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RAPHAEL MAGDALES Before Justice Alan D. Cooper Heard on January 20 & July 7, 2017 Reasons for Judgment released on November 8, 2017 Mark R. Miller for the Crown Deepak Paradkar for the defendant Raphael Magdales Case History [ 1 ] On July 8, 2015, at the Town of Milton, Ontario, Raphael Magdales was charged with trafficking cocaine.

Crown Evidence [ 2 ] At the outset of the trial, it was agreed that there was no issue as to date, jurisdiction, identity, or that a quantity of cocaine was found on a person who had met with the defendant on that date. [ 3 ] The Halton Regional Police drug unit had received a tip that the defendant was involved in trafficking drugs. Several officers conducted surveillance on him at his residence at 216 Sarah Cline Drive in Oakville, beginning at 5pm. Ten minutes later, the defendant pulled into his driveway in a black Accura car and went into his townhouse. At 6:17pm, he left the residence and drove off.

At 6:22pm, he stopped at a plaza on Trafalgar Road south of Dundas Street, in Oakville. He went into a video store and was there for eight minutes. He came out with a bag and drove to Manswood Court in Milton. This is a dead end street in an industrial plaza. He stayed there for twenty two minutes and never got out of his vehicle. Then he drove southbound to Number 5 Side Road. [ 4 ] A black Honda Civic car came out of an industrial area near Number 5 Side Road and Manswood Court. It followed the defendant in his car.

The cars went eastbound on Number 5 Side Road, and then southbound on Boston Church Road for approximately one half kilometer and then stopped on the west side of the road. This is an area of rural farmland. [ 5 ] At 7:19pm, the Civic pulled in front of Mr. Magdales’ car. It was sunny outside and the visibility was clear. The sole occupant of the Civic got out and walked up to the car of the defendant. Officer Brian Curciano drove by at this time and was approximately fifty feet away when he saw the driver of the Civic reach his hands into the Accura for a couple of seconds.

The defendant was alone inside the Accura. The driver of the Civic got back into his car and both cars drove off, eventually going in separate routes.

[6] Officer Curciano recognized the driver of the Civic as T.J. Norrie, someone he knew. [See transcript of January 20, 2017, atp.63, lines 5-9] He gave instructions by radio to other officers to arrest Mr. Norrie. Curciano stopped Magdales and, in a pocket on theback side of the front passenger seat, a sum of seven hundred Canadian dollars, all in twenty dollar denominations, was located. Thedefendant was arrested at 7:28pm. He fainted twice on the roadside, and had to be taken to the Milton hospital. In cross-examination,officer Curciano acknowledged that he could not see what Mr.

Magdales was doing inside his car, or see his hands, when Mr. Norrie hadreached in. [7] Officer Aaron Short testified that he and another officer stopped the Civic and arrested Mr. Norrie. In the car they found a bagwith a white powdery substance in it. It turned out to be 35.6 grams of cocaine. [8] Officer Adam Anastasakis gave evidence that he stopped the defendant’s vehicle and arrested Mr. Magdales for trafficking in acontrolled substance. In the defendant’s wallet were three twenty dollar bills and a Samsung cellular telephone. Officer Anastasakistestified that the 35.6 grams of cocaine found on Mr.

Norrie was in a clear plastic bag and could easily fit into the palm of one hand. Hesent a sample of the drug to Health Canada and it tested as cocaine. In cross-examination he said that the plastic bag in which the cocainewas found was not tested for fingerprints, nor was the currency found on the defendant. Defence Evidence [9] No witnesses were called on behalf of the defence. Onus of Proof [10] The Crown must prove the guilt of the defendant beyond a reasonable doubt. Submissions of Counsel [11] Counsel for the defendant submits that the evidence against his client is primarily circumstantial.

Even though officer Curcianosaid that he saw Mr. Norrie put his hands inside the open window of the car Mr. Magdales was operating, he did not see what was takingplace inside the defendant’s car. He did not see anything in Mr. Norrie’s hands before or after he put them inside Mr. Magdales’ carwindow. There was no fingerprint evidence concerning the cocaine and the currency.

As well, a possible explanation for the two menmeeting in this location is because they were lost and were speaking to each other about directions. [12] Crown counsel argues that the only reasonable inference arising from the circumstantial evidence is that a drug transaction hadtaken place. He referred to the evidence of officer Anastasakis who testified that the plastic bag containing the cocaine could easily fitinto the palm of one hand.

The Law – Circumstantial Evidence [13] In Watt’s Manual of Criminal Evidence [2017], at p. 49 and para. 9-01, circumstantial evidence is defined as follows: “Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It isany fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determinewhether circumstantial evidence is relevant. Where evidence is circumstantial, it is critical to distinguish between inference and speculation.

An inference is a deduction of fact thatmay logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There canbe no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven factsfrom which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.” [14] In R. v.

Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000, Cromwell J., for the court, said the following: 30 It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by tooquickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an

example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we maythen notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, andre-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanationsthan that it has been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidenceand the absence of evidence, assessed logically, and in light of human experience and common sense. [15] Cromwell J. also stated as follows: 37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonablepossibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff'd (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused": R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. "Other plausible theories"or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation.

Analysis [16] The witnesses called by the Crown were credible and trustworthy in my opinion. However, they could not say that the cocaineand money were actually exchanged, and this conclusion relies on circumstantial evidence. [17] The issue in this case is whether or not an inference of guilt is the only rational conclusion that the defendant sold cocaine toMr. Norrie and received cash in exchange, and whether the Crown has proven the guilt of the defendant beyond a reasonable doubt. [18] Counsel for the defendant has contended that inferences other than guilt can flow from this indirect evidence.

One possibilityhe raised is that Mr. Magdales and Mr. Norrie were lost in an isolated area, and Norrie got out to talk to the defendant about directions. Itwas a very unfortunate coincidence that cocaine was found in Norrie’s vehicle and cash in the Magdales’ car. [19] From a Crown perspective, one might infer that the defendant drove to the industrial plaza and parked because he wanted to seeif anyone, particularly police officers, was following him. When the coast seemed to be clear, he drove off and Norrie pulled out andfollowed him.

A cell phone was found in the defendant’s vehicle and he may have been communicating with Norrie as they went along.They went to a rural area to avoid detection. Only then was the transaction completed. [20] In my view, the inference of guilt is the only reasonable inference to make from the circumstantial evidence in this case. Thepresence of the cocaine and currency were not a coincidence. The Crown has proven its case beyond a reasonable doubt. Conclusion [21] Accordingly, the defendant is found guilty as charged. November 8, 2017 Signed: “Justice Alan D. Cooper”