Mikerlson Vernelus Appellant v. His Majesty The King, 2022 SCC 53

SUPREME COURT OF CANADA Citation: R. v. Vernelus, 2022 SCC 53 Appeal Heard: December 6, 2022 Judgment Rendered: December 6, 2022 Docket: 40072 Between: Mikerlson Vernelus Appellant and His Majesty The King Respondent Official English Translation Coram: Côté, Brown, Martin, Kasirer and O’Bonsawin JJ. Unanimous Judgment Read By : (paras. 1 to 8) Kasirer J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Mikerlson Vernelus Appellant v. His Majesty The King Respondent Indexed as: R. v.

Vernelus 2022 SCC 53 File No.: 40072. 2022: December 6.

Present: Côté, Brown, Martin, Kasirer and O’Bonsawin JJ. on appeal from the court of appeal for quebec Criminal law — Appeals — Unreasonable verdict — Accused charged with possession of loaded restricted firearm and failure to comply with condition of recognizance — Firearm found by police in bag belonging to accused in back seat of car in which there were also two other individuals — Trial judge finding that accused’s testimony that he did not know firearm was in his bag was not credible — Accused convicted — Accused appealing on ground that verdict was unreasonable — Majority of Court of Appeal dismissing

appeal — Convictions upheld. Cases Cited Referred to: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. W.(D.), (SCC), [1991] 1 S.C.R.742. APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Schrager and Moore JJ.A.), 2022 QCCA 138, [2022]AZ-51826418, 480 D.L.R. (4th) 623, 424 C.C.C. (3d) 272, [2022] Q.J. No. 413 (QL), 2022 CarswellQue 20272 (WL), affirming theconvictions of the accused for possession of a loaded restricted firearm and failure to comply with a condition of a recognizance. Appealdismissed. David Leclair and Mustapha Mahmoud, for the appellant.

Jean-Philippe MacKay and Robert Benoit, for the respondent. English version of the judgment of the Court delivered orally by [1] Kasirer J. — The Court is of the view that the appeal should be dismissed for the reasons given by Moore J.A. forthe majority of the Court of Appeal. [2] We agree with the majority that it was reasonable for the trial judge to conclude that the evidence as a wholeexcluded all reasonable alternatives to guilt (see R. v.

Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 71, cited by the majorityin this case at para. 41 of its reasons). [3] All of the grounds of appeal are without merit. [4] First, the trial judge made no error in applying the test set out in R. v. W.(D.), (SCC), [1991] 1S.C.R. 742, at p. 758. She wholly rejected the defence evidence while concluding that it did not raise a reasonable doubt. Finding thatthere was strong circumstantial evidence relating to possession, the judge was faced with a lack of evidence that could counter theinference of guilt reasonably arising from the Crown’s evidence.

Nothing in the judge’s reasons suggests that she used the rejection ofthe defence evidence as positive evidence of guilt. The majority of the Court of Appeal made the same observation at para. 36 of itsreasons, finding that [translation] “the judge’s rejection of the appellant’s testimony, due to its inconsistencies, became determinative ofand fatal to the outcome of his defence”. [5] Second, the majority of the Court of Appeal did not err in applying Villaroman.

The “only reasonable inference”criterion obviously does not mean that guilt had to be the only possible or conceivable inference. [6] The dissenting judge on appeal stressed that it was [translation] “reasonable and not speculative to infer thatMr. Daniel may have placed the firearm in the bag” (para. 28 (footnote omitted)). This is indeed a plausible theory given the fact thatMr. Daniel was sitting beside the bag and that his DNA was found on the firearm.

However, as the majority of the Court of Appealnoted, whether or not it was the appellant who placed the firearm in the bag [translation] “is immaterial” (para. 38). Insofar as theprosecution established that the firearm had not been placed there without the appellant’s knowledge or against his will, all of theelements of possession were present.

The trial judge could therefore conclude that the only reasonable inference was that the firearm hadbeen concealed in the bag with the appellant’s full knowledge. [7] Third, the trial judge did not err in referring to the appellant’s calm reaction when he was arrested for possession ofa firearm.

As the majority noted, the judge did not use this to evaluate the appellant’s credibility during his testimony, but rather toassess, as one element of the circumstantial evidence, the appellant’s knowledge of the fact that the firearm was in his bag (majorityreasons, at para. 37). [8] For these reasons, the appeal is dismissed. Judgment accordingly. Solicitors for the appellant: David Leclair, avocat, Montréal; LEMN Avocats, Montréal. Solicitor for the respondent: Director of Criminal and Penal Prosecutions, Montréal.