Trial judge took piecemeal approach to circumstantial evidence rather than as a whole
A trial judge failed to consider the combined effect of the circumstantial evidence relevant to the issue of whether an accused knowingly possessed seized drugs and cash, the Ontario Court of Appeal has found.
During surveillance, police saw the respondent and his father making brief visits to known drug locations. The officers arrested the respondent and his brother in a hotel room and seized the following pursuant to a search warrant under the Controlled Drugs and Substances Act:
- drugs, prepackaged into dime bags with a blue logo and concealed in a fanny pack, hanging in a closet with a black jacket resembling the one that the respondent wore during surveillance
- 15 envelopes, each bundled with $1,000, in a suitcase
- a pair of pants, which had the respondent’s identification, a keychain, and a rental receipt for an apartment in another man’s name.
The officers headed to the apartment and waited for a search warrant. They denied access to the man whose name was on the receipt.
Upon entering the apartment, the officers found in plain view drug trafficking paraphernalia including a scale, latex gloves, envelopes, and Ziplock baggies with the same blue logo. Using keys from the keychain, they opened a safe that contained fentanyl and other narcotics divided into dime bags and a suitcase containing the respondent’s passport.
Justice Cindy MacDonald of the Ontario Superior Court of Justice examined the pieces of the Crown’s circumstantial case. She decided that there was insufficient evidence to infer that the respondent ever went to the apartment, knew that the drugs were there, or possessed the seized drugs and cash.
The trial judge acquitted the respondent of the charges of possession for the purpose of trafficking various controlled substances and proceeds of crime over $5,000. She also acquitted the respondent’s father. The Crown appealed and sought a new trial.
Judge’s approach to evidence flawed
In R. v. Abdelrahman, 2022 ONCA 798, the Ontario Court of Appeal allowed the appeal, set aside the respondent’s acquittal on the charges, and ordered a new trial.
The appellate court accepted that the trial judge said that she had to assess all the circumstantial evidence to see whether it allowed her to conclude that the only reasonable inference was that the respondent had knowledge and control over the drugs in the safe. However, she did not conduct this analysis and instead took a piecemeal approach to the evidence, the court said.
According to the Court of Appeal, the trial judge failed to:
- stand back and assess the possible inferences arising from the combination of the facts that the pants containing the respondent’s identification also had keys that opened the apartment, the safe, and the suitcase where drug trafficking paraphernalia, drugs, and his passport were found
- consider whether the only rational inference that she could draw from the entirety of the Crown’s evidence was the appellant’s guilt beyond a reasonable doubt.
These pieces of evidence showed a connection to the apartment, which had every appearance of a stash house, the appellate court said.
The Court of Appeal then found that the judge was speculating when she concluded that there was no evidence showing that the respondent knew the purpose of the keys found in the pants with his identification, and no evidence indicating how a suitcase with his passport ended up in the apartment. She failed to not consider reasonable alternative inferences arising from the evidence, the appellate court added.
The appellate court cited R. v. Villaroman, 2016 SCC 33, which cautioned courts to ensure that alternative inferences inconsistent with an accused’s guilt should be reasonable and not speculative.
