Judge properly apprehended photo evidence showing transaction: Ontario Court of Appeal
There was ample evidence supporting the trial court’s finding that a woman convicted of trafficking methamphetamine knew the contents of a bag that she passed to an unknown man, the Ontario Court of Appeal has ruled.
The unknown man briefly stopped at a residence that the appellant shared with her boyfriend and his mother, who ran a clothing alterations business. Police observed as the appellant handed him a blue shopping bag, which he passed to a second male, who later gave it to a third male. Police arrested the third male and found inside the bag a clear plastic container with 985 grams of methamphetamine, valued at between $30,000 and $78,800.
At the appellant’s trial, the evidence included five photographs that showed her giving the bag to the unknown male at the residence’s front door.
Justice Mary Misener of the Ontario Court of Justice convicted the appellant of trafficking methamphetamine and acquitted her of possessing the drug for trafficking purposes. She accepted the surveillance officers’ testimony about the exchange and used the photographs to corroborate the testimony. She rejected the defence arguments that the appellant unwittingly passed the bag and that there was a reasonable inference that she was handing over clothing.
The trial judge saw no reasonable basis to doubt that the appellant knew about the bag’s contents at the time that she handed it over. She found that the appellant could clearly see what was inside the bag. The photographs depicted the appellant talking to the unknown male, looking down into the bag that she handed him, and pointing at the bag while the unknown male looked inside it, the judge said.
In R. v. Chen, 2022 ONCA 803, the Court of Appeal dismissed the appeal.
First, the appellant argued that the trial judge misapprehended the photographic evidence. The judge allegedly failed to consider that the transfer occurred quickly and that it was unclear what the appellant was pointing to. The pictures offered a partial and obstructed view of the brief transaction and failed to show that she could see what was in the bag, the appellant added.
The appellate court rejected the appellant’s position. It ruled that the judge was entitled to conclude that the evidence gave rise to no reasonable possibilities inconsistent with guilt.
Next, the appellant contended that the judge failed to specifically address the possibility that tissue paper in the bag might have covered the plastic container with drugs and might have prevented the appellant from seeing it.
The Court of Appeal disagreed. It found that the judge indeed raised this possibility in discussion with trial counsel, followed the law on circumstantial evidence in R. v. Villaroman, 2016 SCC 33, and clearly rejected the tissue paper theory since she disagreed with the defence suggestion that the appellant unwittingly passed the bag.
The judge also explained why she rejected this defence suggestion, the appellate court said. Specifically, the judge found that the appellant was seen conversing with the unknown male, that they both looked into the open bag, and that the appellant pointed to something inside the bag, the appellate court added.
