R. v. Wishart

R. v. Wishart Collection Decisions of the Court of Appeal Date 1999-09-08 Docket numbers C31437 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990908 DOCKET: C31437 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH WISHART (Appellant) BEFORE: ABELLA, LASKIN and FELDMAN JJ.A. COUNSEL: Munyonzwe Hamalengwa for the appellant Robin Parker for the respondent HEARD: June 11, 1999 On appeal from the judgment of Mr. Justice Dambrot dated June 12, 1997. ENDORSEMENT [1] This is an appeal from a conviction for conspiracy to traffic in heroin, contrary to s.4(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1. The appellant alleges the evidence was insufficient to prove beyond a reasonable doubt that he had knowledge that six wooden deer shipped from Thailand contained heroin. He contends that the trial judge was not justified in drawing an inference of knowledge from the circumstantial evidence of his conduct subsequent to picking up the deer, and absent that inference, an essential element of the offence remains unproven. Essentially, the appellant’s argument is that the verdict is unreasonable. We are not persuaded that the inference drawn by the trial judge or the verdict was unreasonable. FACTS [2] The appellant picked up the deer from his co-accused, Hughes, after three previous failed attempts by the RCMP to execute a controlled delivery. After picking up the deer, the appellant drove to Yorkdale shopping centre, taking a very circuitous route. Police maintained surveillance. The appellant parked his van at the shopping centre and left by subway. Approximately three hours later he returned. He approached one of the drivers of the surveillance vehicles and asked him if he was a police officer. The officer said he was not. [3] The next day at 10:00 a.m. a tow truck arrived and towed the van to a different parking lot. The appellant then approached a taxi driver and asked him to take the van keys, go to the lot, retrieve the boxes containing the wooden deer and deliver them to Shab Decorative and Tribal Art. The appellant then telephoned the owner of the art shop, Ghavamian, and asked for an appraisal of the Chinese artifacts he was having delivered. Ghavamian appraised the deer as reproductions worth approximately $40 - $50 each. When the appellant telephoned, Ghavamian informed him of the value of the deer. The appellant told him that the owner wanted $500 each for the deer. A half hour later the appellant arrived at the shop in a different van, picked up the deer and haphazardly threw them in the back of the van. [4] When the appellant drove off he was speeding, making many turns, and generally driving erratically. The police decided to arrest him, and did so. They recovered the deer from the back of the van. [5] The appellant maintained in his testimony that the reason he was so conscious of surveillance, and took such pains to evade police, was because he was afraid the deer were stolen. He said that he is a “picker” who buys and sells goods for profit and that 50% of the goods he sells are stolen. He had a record of two convictions for possession of illicit cigarettes and liquor and an outstanding fine of $15,000. [6] The trial judge disbelieved the appellant’s explanation for his erratic behaviour and driving, and convicted him. DISCUSSION [7] The appellant contends that the trial judge erred in his findings of credibility and in inferring the appellant knew the wooden deer contained heroin. To succeed on this submission, the appellant must show the verdict was unreasonable. In our view, he has not done so: see: R. v. W. (R.) (1992), 74 C.C.C. (3d) 417. [8] The trial judge was entitled to reject the appellant’s version of events . Having done so, he then correctly directed himself to consider whether the Crown had proved its case beyond a reasonable doubt. He was satisfied, on the evidence, that the Crown had met its burden with respect to the key issue in this appeal: knowledge. In our view, the trial judge was reasonably entitled to infer from the evidence he accepted that the appellant’s conduct was consistent with guilt and inconsistent with innocence. Accordingly, there is no basis for this court to interfere with the verdict. DISPOSITION [9] The appeal is therefore dismissed. Signed: “R.S. Abella J.A.” “John Laskin J.A.” “K. Feldman J.A.”