2015 QCCA 1715, 2015 QCCA 1715

Unofficial English Translation Pinard c. R. 2015 QCCA 1715 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005439-136 (560-01-010424-076) DATE: OCTOBER 20, 2015 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. DANNY PINARD APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on May 21, 2013 by the Honourable Jean R.

Beaulieu of the Court of Quebec, Criminal and Penal Division (District of Labelle), convicting him of producing cannabis and possessing cannabis for the purpose of trafficking. [ 2 ] For the reasons of Bich, J.A., with which Morissette and Bélanger, JJ.A. concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment and QUASHES the conviction; [ 5 ] ACQUITS the appellant of the two charges brought against him. YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A.

Mtre Julie Couture COUTURE AVOCATS For the appellant Mtre Jean Campeau DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: September 3, 2015

REASONS OF BICH, J.A. [ 6 ] On May 21, 2013, on the basis of the Crown's purely circumstantial evidence, the appellant, who exercised his right to silence and did not offer a defence, was convicted of production of cannabis (subsection 7(1) and paragraph 7(2)(

b) of the Controlled Drugs and Substances Act [1] ) as well as possession of cannabis for the purpose of trafficking (subsection 5(2) and paragraph 5(3)(

a) of the same Act ). On appeal from this conviction, he raises various grounds that, at the time of the appeal hearing, boil down to only one, that is, that the verdict is unreasonable (subparagraph 686(1)( a )(ii) Crim.C. ). The appellant believes that the evidence adduced by the Crown is insufficient to establish his guilt beyond a reasonable doubt. He therefore asks to be acquitted of the charges against him. [ 7 ] Conversely, the Crown argues that this evidence, assessed contextually, [TRANSLATION] "inevitably leads to the conclusion that the appellant took

part in the offences of production and possession of cannabis for the purpose of trafficking". [2] * * [ 8 ] The factual background, which is not contested, can be summarized as follows. [ 9 ] In late January of 2007, police officers were tasked with verifying the site of a fire when they discovered a building on a neighbouring lot where various signs led them to believe that it housed a cannabis plantation (the building is located at 740 du Lac Vert Road, Rivière-Rouge, Ste-Véronique district).

The outcome of an investigation that lasted several months confirmed the police officers' suspicions were confirmed by the close surveillance of the premises and an Info-Crime call made concerning one Patrick Bergeron, who had been released from prison in mid-February of 2007 after having been sentenced to two years' imprisonment for possession of cannabis for the purpose of trafficking.

The officers also concluded that the occupants of the residence at 106 de la Colline Road, a property located not far from 740 du Lac Vert Road and owned by Patrick Bergeron, were, in one way or another, connected to this operation. [ 10 ] Extending their investigation to 106 de la Colline, the officers obtained a warrant, which, during its execution, led them to cross an adjacent lot, through the woods. They then discovered a building they had not noticed before. In disrepair, the building (an old cottage, going by the photos reproduced in the appeal record) was located at 180 de la Butte.

Both odour and heat that are characteristic of cannabis plantations were coming from the building. Light could be seen coming from the roof and the basement, and the sound of transformers could be heard. [ 11 ] With this information, the police officers obtained a search warrant for 740 du Lac Vert, for 106 de la Colline, and for 180 de la Butte. This warrant was executed on April 21, 2007. One Dominic Beauregard was arrested at 740, in a building with a cannabis plantation hidden in the basement.

No one was found at 180, which served as a greenhouse and housed another cannabis plantation (943 cuttings, 99 one-foot plants, 561 one-to-two-foot plants, 12 two-foot plants, 334 two-to-three-foot plants, and two "Ziploc" bags of cones). [3] In the residence at 106, the police officers arrested Bergeron, as well as the appellant, whom they did not expect to find there since nothing in their investigation had so far revealed his presence or involvement in the operation, or even his existence. [ 12 ] No cannabis (or any other illegal substance) was seized at 106, but weapons were discovered there, hidden under Bergeron's bed.

Also discovered, in a hallway, were two keys. One of the keys (marked "Huguette", the first name of Bergeron's aunt) opened one of the locks at 180, but an obstacle prevented entry into the building. The other key opened a door of the building and allowed entry.

A shed (or it may be a garage), located some distance from the building at 106, on the same lot, contained equipment similar to that seized at 180. [ 13 ] The only access to 180 is via 106, since the two buildings are connected by a path, the condition of which suggests that it is in regular use. [ 14 ] At the time of his arrest, in response to the police officer asking him if he was the owner of 180, the appellant answered in the affirmative. The rest of the conversation was noted as follows by the officer: [ translation ] Q. Are we going to find drugs at your place? A. I don't know. Q.

Dominic Beauregard, short, black hair, blue eyes, glasses, is he with you guys? A. Don't know him. Q. Is it by chance that we found 2,000 plants at their place at the same time as at your place? A.

Um, um, because that guy, that doesn't ring a bell at all. [4] [ 15 ] The investigation revealed that the property at 180 de la Butte Road is in fact owned by the appellant, who bought it from Bergeron on August 29, 2006 for a price of $22,500, secured by a $50,000 mortgage with an interest rate of 25 per cent, plus an additional mortgage and a mortgage on rents (even though there was no lease in force at the time as according to the deed of sale). The appellant reconveyed the property to Bergeron by notarial deed on October 20, 2008.

During the entire time that he was the owner of 180, the appellant, who resides in Boisbriand, was also responsible for the Hydro-Québec accounts related to the property. The only evidence in the record in this regard shows a bill for $44.04 for the month of January of 2007. The electrical installations at 180 were

rigged, however, so that the bill does not reflect the actual usage at that place. [ 16 ] As the trial judgment noted, there was no fingerprinting or taking of footprints and [TRANSLATION] "no surveillance showing the presence of [the appellant] at a time other than the time of the arrest".

The judge continued: [TRANSLATION] "It can be said that [the appellant] was never a person of interest to the police following the primary information from Info-Crime", nor, it may be added, in any other regard until the day of his arrest at 106 de la Colline. * * [ 17 ] Let us now consider how the judge found the appellant guilty. [ 18 ] He first stated that the burden of establishing the appellant's guilt beyond a reasonable doubt lay solely on the shoulders of the Crown, since every accused is presumed innocent, need not prove his innocence, and has the right to silence, which right was exercised by the appellant.

He pointed out the purely circumstantial nature of the Crown's evidence. He then summarized the basic facts that the Crown had established. Referring to Dunlop and Sylvester v. The Queen , [5] he said that [TRANSLATION] "the mere presence of an accused at or near the scene of a crime cannot serve as the basis for a guilty verdict" and that we must consider whether there are other elements supporting such a verdict, [TRANSLATION] "or at least whether there is evidence that, if not refuted, can lead to a guilty verdict". Relying on R. v. P. (M.B.) [6] and R. v.

Lepage , [7] the judge then stated that although an inference of guilt should not be drawn from the fact that the accused did not testify and did not present a defence, this silence may deprive the court of grounds to find otherwise. He also said that the case resembles R. v. Jackson , [8] although in that case, the accused testified but was not believed. The judge then said: [TRANSLATION] The accused is the owner of the production site, having purchased the property from Bergeron, who was arrested with him.

He is responsible for the Hydro-Québec accounts, although the evidence shows that the electricity was rigged. He is therefore responsible for the Hydro-Québec bills, which are sent to his residential address. A key to the premises he owns, and thus to the production site, was found in an item of clothing that the police linked to him. This evidence was not formally contradicted. The production site and the site of the arrest, which are near each other in an obviously secluded area, are connected by a path, which was the only one used at any point in the investigation.

It is clear that the two sites are connected, and we can assume that the person or persons who used this path are the persons in charge of maintaining the production operation. Curiously, ownership of the production building was reconveyed to Bergeron by the accused in the months that followed the dismantling of the greenhouse, or of the operation. I find that in the circumstances of this case, given the prima facie case presented by the Crown and the serious elements, as Lamer, C.J. put it in R. v.

P. (M.B.) , as it was said by Lamer, C.J., given the "... prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal" and the elements that arise from this prima facie case, I believe that here, the failure of the accused to testify, or at the very least to call other witnesses, deprives me of the possibility of reaching a conclusion other than a guilty verdict. The accused is convicted on both charges as laid. And I am ready to hear you on sentencing. [ 19 ] With respect, I believe that the judge could not reasonably reach such a conclusion.

I shall explain. * * [ 20 ] First, it is noteworthy that the judge did not really explain the reasons that caused him to conclude that the evidence for which he gave an account established the appellant's guilt beyond a reasonable doubt. His judgment is composed of segments that are merely juxtaposed, without any analysis. There is a

summary statement of the general rules of criminal liability, followed by a statement of the facts, a review of some specific rules (proximity does not make one guilty, the silence of the accused does not justify an inference of guilt, but it may deprive the judge of grounds to conclude otherwise, the similarity with Jackson ), and a reiteration of the salient facts.

From there, the judge jumped to the conclusion that given [TRANSLATION] "the elements that arise from this case" (elements which the judge fails to identify) and given the appellant's silence, he was deprived of [TRANSLATION] " grounds to come to a conclusion other than a guilty verdict". [ 21 ] It appears that the amalgam of rules of law and facts recounted by the judge served as the basis for his conclusion: clearly, he felt that the evidence established the appellant's guilt beyond a reasonable doubt.

But we do not know exactly why, other than that the appellant's silence deprived him of grounds to conclude otherwise. But how do the facts proved by the Crown (which are not in dispute and do not require a credibility assessment) show that the appellant had control over the plantation discovered at 180 and over the drugs for the purpose of trafficking, or that he took

part in committing the offences? [ 22 ] It was not enough here to state that the appellant's guilt must be established beyond a reasonable doubt and that the facts do indeed establish this guilt, which is actually the essence of the trial judgment. [ 23 ] In the circumstances, such an approach does not meet the requirements of R. v. Sheppard [9] and R. v.

R.E.M. [10] The teachings of the Supreme Court on the sufficiency of the reasons for judgment given by a judge certainly make large allowances for implicitness, logic, common sense, functionality and practicality (including consideration of the arguments submitted to the judge), but they normally still require the formulation of reasoning that goes beyond a mere statement that the Crown's evidence establishes the accused's guilt beyond a reasonable doubt.

The bar can undoubtedly be set low when the Crown's undisputed evidence is overwhelming, but that is not the case here. [ 24 ] In short, the judge should have explained himself. He could not simply conclude that the appellant's silence [TRANSLATION] "deprived him of grounds to come to a conclusion other than a guilty verdict". In reaching this conclusion, it is, rather, the appellant that he is depriving of the benefit of an analysis as to whether the evidence adduced by the Crown does in fact establish his guilt beyond a

reasonable doubt, because as the Court stated in R. v. Fenelon : [11] [TRANSLATION] [5] The appellant maintains that the respondent's failure to provide an explanation necessarily had to lead to a conviction. It erroneously cites in this regard R. v. P. (M.B.) [reference omitted], since Lamer, C.J. does not write that this must necessarily be the consequence of a failure to provide an explanation.

He says, rather, after stating that the accused cannot be compelled to incriminate himself, that he may be found guilty if he does not testify: Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences: ...

In other words, once there is a "case to meet" which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes -- in a broad sense -- compellable. That is, the accused must answer the case against him or her, or face the possibility of conviction . [ 25 ] Although the judge cited this same passage from R. v. P. (M.B.) [12] earlier in his judgment, he did not abide by it.

At least he did not explain himself in such a way as to enable the appellant (and the Court) to know his reasoning. [13] [ 26 ] This error does not, however, warrant a conclusion that the conviction is unreasonable, and we must now consider whether a judicial assessment of the facts established by the Crown rules out, as the appellant claims, the conclusion reached by the judge, [14] however he explained it. [ 27 ] That said, the Crown's evidence essentially boils down to this: the appellant is the titled owner of a building housing a cannabis plantation, a building that he purchased from Bergeron, to whom he later reconveyed it.

The fact that the appellant is responsible for the Hydro-Québec electricity account adds nothing to this evidence, since this responsibility falls on him as the owner of the building and since we can learn nothing from the electricity bill issued for this account.

The appellant was, moreover, arrested at 106, which is owned by Bergeron, where a key was found that unlocks 180 (not to mention the key marked with the name "Huguette"). [ 28 ] Speaking of the key that unlocks 180, note that like the judge, who mentions it twice in his judgment, the Crown seems to infer that this key belongs to the appellant, since it was found in the pocket of a large coat in his size. We should point out, however, that the coat could just as well have belonged to Bergeron, whose measurements are hardly less impressive than those of the appellant.

In fact, the only noteworthy element here is that a key to 180 was found in 106, where Bergeron and the appellant were arrested. [ 29 ] Furthermore, and to continue reciting the circumstantial evidence presented by the Crown, a shed located at 106 contained cannabis production equipment similar to that found at 180. At the time of the arrest, one had to go through 106 to get to 180 [15] as there is a path connecting the two lots. To this, other details can be added: during the police investigation, the vehicle of Bergeron's aunt, Huguette Richer, was noticed close to 106.

Richer lives in the appellant's neighbourhood, in Boisbriand [16] . [ 30 ] For the rest, as the trial judge noted, nothing directly links the appellant to the plantation discovered at 180, the production of cannabis, or the possession of this substance for the purpose of trafficking. The appellant was unknown to the police until the time of his arrest; he had never been seen nor had he appeared during the investigation that led to his fortuitous arrest on April 21, 2007.

Since no fingerprints were found, no one can even say whether the appellant had ever been in 180, if he had physically handled the key or used it. We don't even know if he had ever gone to 180, since no footprints or other evidence to this effect was gathered to confirm this.

The judge wrote that [TRANSLATION] "we can assume that the person or persons who used this path [connecting 180 and 106] are the persons in charge of maintaining the production operation", but we do not know exactly whether the appellant used this path, nor do we know whether the appellant's personal effects were found in 106 (which could have indicated an extended stay), since no such effects were found in 180. [ 31 ] In Reference Re: Steven Murray Truscott , [17] Hall, J. (who would later be proved right) wrote in his dissent concerning circumstantial evidence: … I recognize fully that guilt can be brought home to an accused by circumstantial evidence; that there are cases where the circumstances can be said to point inexorably to guilt more reliably than direct evidence; that direct evidence is subject to the everyday hazards of imperfect recognition or of imperfect memory or both.

The circumstantial evidence case is built piece by piece until the final evidentiary structure completely entraps the prisoner in a situation from which he cannot escape. There may be missing from that structure a piece here and there and certain imperfections may be discernible, but the entrapping mesh taken as a whole must be continuous and consistent.

The law does not require that the guilt of an accused be established to a demonstration but is satisfied where the evidence presented to the jury points conclusively to the accused as the perpetrator of the crime and excludes any reasonable hypothesis of innocence. … [ 32 ] Indeed, for many years now – consider, for example, R. v. Cooper , [18] R. v. Charemski , [19] R. v. Steele [20] and R. v.

Griffin [21] –, the Supreme Court has taught that a trial judge who is presented with purely circumstantial evidence must be satisfied beyond a reasonable doubt that the accused's guilt is the only logical or rational inference. In the case at bar, as it was put by Charron, J. in Griffin , [22] the appellant's guilt must be "the sole rational inference to be drawn" from the purely circumstantial evidence offered by the Crown.

Or, as was approvingly cited by Fish, J. in Steele , [23] is the appellant's situation here such that "the circumstantial evidence is consistent with guilt and there is no other reasonable inference that could be drawn"? [24] Can we say, as Doherty, J. wrote (for the majority) in R. v.

Wills , [25] that the conviction entered by the trial judge meets the following test: [33] … The reasonableness of the verdicts must be assessed with regard both to the inferences reasonably available from the totality of the evidence and to the Crown’s ultimate burden to demonstrate that guilt is the only reasonable inference to be drawn from the totality of that evidence: … [ 33 ] The answer is no.

[ 34 ] Of course, the evidence does not rule out the possibility that the appellant is guilty. Perhaps we could even go so far as to say that on the basis of the evidence, it is more likely that he is guilty than innocent. We could be tempted to infer or to presume that the owner of a building generally knows what is going on there and likely controls what is done there.

We could also see in the appellant's purchase of Bergeron's property, while Bergeron was serving a prison sentence, proof of this knowledge or of this control. [26] Moreover, since the appellant was arrested at 106 (which belongs to Bergeron), it would not be illogical to infer that he had to know what was going on in his home, at 180, a place to which he theoretically had access by means of a key which could have belonged to him as the owner and which, in any case, he could easily get hold of since it was found nearby. [ 35 ] None of this is in any way incompatible with guilt.

But that is not the standard that must be met: guilt must not be only plausible, likely or feasible, it must be established beyond a reasonable doubt.

In the circumstances, whether guilt is the only rational inference that can be drawn from the circumstantial evidence presented by the Crown, or the only reasonable inference, is not obvious. [ 36 ] First, to infer that the appellant, as the owner of 180 and a visitor to 106, knew what was going on, in other words, was aware of the existence of the plantation, would not be sufficient considering the elements of the offences with which he was charged, which assume a measure of control that cannot be inferred or satisfied from knowledge alone, as was noted by the Court in Rochon v.

R. [27] Nor is knowledge alone sufficient to establish participation, aiding or abetting. [28] [ 37 ] As the Nova Scotia Court of Appeal observed in R. v.

Murphy , [29] however, it cannot be ruled out that the control required for the offences of production or possession can be inferred from the accused's occupancy of the premises where they were committed: « [ t ] he fact of tenancy or occupancy of premises does not create a presumption of possession of all that is found in those premises, but I accept that a trier of fact can infer possession from occupancy ." But there is no evidence here of occupancy, which cannot be inferred from the mere fact that the appellant is the owner of 180.

As in Murphy , there is no evidence showing that the appellant occupied 180 or 106, or even that he ever set foot in 180, and we cannot reasonably infer that because he is the titled owner of the property, that he actually occupied the premises. An inference of this kind would, moreover, be contrary to the daily reality of property owners, many of whom never occupy their property. [ 38 ] Of course, it is possible not to occupy premises and still know and control what goes on there or be complicit therein.

In the case at bar, however, we cannot draw this inference from the mere fact that the appellant is the owner of 180 and that he was arrested on a neighbouring property.

At the most, we can infer from the appellant's title to 180 that he knew of the existence of the plantation, but from this presumed knowledge we cannot infer, directly or by complicity, that he had control (whether for the purpose of production or possession for the purpose of trafficking), which cannot be the merely legal control exercised as owner of the property. [ 39 ] The mere fact that an accused is found in or near such a plantation at a point in time does not necessarily lead to the conclusion that he cultivated, propagated or harvested the substance, as was noted by, for example, the British Columbia Court of Appeal in R. v.

Lai . [30] Similarly, [TRANSLATION] "personal possession cannot be inferred from the mere physical presence of a person in an apartment where drugs are found and, moreover, hidden in different places", as Côté, J. wrote in Marc v. R. [31] In the case at bar, the appellant was not arrested where the cannabis plantation and the drugs that were allegedly in his possession for the purpose of trafficking were found, but rather in a neighbouring place.

A fortiori, inferring control over the former and possession of the latter (which also requires a measure of control) appears even more remote. [ 40 ] The fact that each of these elements is, in itself, inconclusive, does not mean, however, that, together, they are not. Rather than examining each of these pieces of circumstantial evidence individually, they should be considered as a whole, since the whole may be more probative than each of the parts.

We should therefore consider whether, together, the following circumstances show that the appellant is guilty while ruling out " any reasonable hypothesis of innocence ": [32] - 180 houses a cannabis plantation; - the appellant is the titled owner of 180, which he purchased from Bergeron in August of 2006, and as such he is also responsible for the Hydro-Québec bills for this property (the only bill we have in hand being for a modest amount); - the only access to 180 is via 106, which is precisely the place where the appellant was arrested on April 21, 2007, in the company of Bergeron, but he had never been seen there before or been noticed in the vicinity; - the two properties are connected by a path that shows regular use; - a key found in 106 unlocks 180; - production equipment was found in a shed located on lot 106; - at the time of the arrests of the appellant and of Bergeron, weapons were found hidden in the base of the bed occupied by the Bergeron, at 106; - according to the records of the Société de l'assurance-automobile, Bergeron's aunt and mother are domiciled in Boisbriand, like the appellant. [ 41 ] In my opinion, a trier of facts acting judicially could not reasonably conclude that all of these circumstances together show beyond a reasonable doubt that the appellant is guilty in respect of each of the elements of the offences with which he is charged.

Such a hypothesis is plausible, of course, but other, equally logical possibilities cannot be ruled out, including that Bergeron alone is responsible (I shall return to this) and that the appellant is therefore innocent. It cannot therefore ground a conviction, since reasonable doubt, while not requiring absolute certainty, does require more than a balance of probabilities. [33] [ 42 ] The Crown invites us to compare the facts in the case at bar with those in R. v. Jackson , [34] which the trial judge also discussed, and to come to the same conclusion.

Comparisons of this kind have their limits, but here the exercise is not probative. In Jackson , the accused was arrested on the very premises of the marijuana plantation. The police officers arrived while he was sleeping

under a camouflaged tent housing fertilizer. He could not have been unaware of the presence of the marijuana, which was visible, nor could he have mistaken the activities conducted there, the Court of Appeal explained in its judgment. The accused had been on the premises for at least two days. He exited the tent wearing rubber boots, rather than the running shoes he said he was wearing when he arrived on the site.

The majority of the Supreme Court, per Fish, J., concluded that "it was open to the trial judge to conclude, as he did, that the appellant’s presence at the scene of the crime was consistent only with his culpable involvement in the production of marijuana with which he was charged". [35] [ 43 ] In contrast, the appellant here was arrested not on the plantation site, but in a cottage – 106 – located about 300 feet from there, [36] on another lot. No drugs were found in the cottage in question or any marijuana production equipment.

Such equipment was only found out of sight in a shed located further on the lot of 106. The only thing that linked the appellant to 180 – and I concede that it is not insignificant – is his title to the property and his presence, on one occasion, at 106, the property one must go through to get to 180, the condition of the path connecting the two properties suggesting that it is in regular use.

Note that because of the distance, the trees and the positioning of the buildings, the building at 180 cannot be seen from the cottage at 106. [37] [ 44 ] At the risk of repeating myself, this does not support the conclusion beyond a reasonable doubt that the appellant was involved in the production of cannabis, that is, the cultivation, propagation or harvesting of this substance, nor that he aided or abetted someone to engage in such production, knowing that it was cannabis, nor even that he knew of the existence of the plantation.

Nor does this support the conclusion beyond a reasonable doubt that he had this cannabis in his possession, and even less that he had it for the purpose of trafficking. We can perhaps, as in Marc v. R. , supra , suspect that the appellant and Bergeron were in business together, but, as Côté, J. wrote in that judgment, [TRANSLATION] "on the control aspect, we would have to speculate", [38] in the absence of any direct evidence of any handling whatsoever of the substances by the appellant or of the appellant's presence at 180.

The circumstantial evidence presented by the Crown, taken as a whole, does not justify such a conclusion. [ 45 ] In short, we cannot say here that "the final evidentiary structure completely entraps the prisoner in a situation from which he cannot escape [and that] the entrapping mesh taken as a whole [is] continuous and consistent", [39] nor that the appellant's guilt is "the only rational inference that can be drawn" [40] from the Crown's evidence. [ 46 ] As the Court wrote in Tremblay v.

R. , [41] with the necessary adaptations according to whether we are referring to production or possession for the purpose of trafficking: [TRANSLATION] [1] The appeals must succeed.

With respect, the circumstantial evidence adduced by the Crown does not support the conclusion, contrary to the finding of the trial judge, that the appellant exercised [TRANSLATION] "direct control" over the drugs found at the address where he was arrested on November 10, 2009. [2] The appellant undoubtedly had suspicions, but we must speculate to conclude beyond a reasonable doubt that he had the seized drugs in his possession for the purpose of trafficking, or that he exercised control over them. [3] Here, as in Marc [reference omitted], we cannot identify who sold the drugs and who exercised a measure of control over them. [ 47 ] I do not believe I am speculating [42] here when I say that all of the evidence presented to the trial judge is as consistent with the guilt of Bergeron alone (who is the owner of 106, the property that offers the only access to 180 and where 1) a key unlocking 180 was found and where 2) marijuana growing equipment was found in a shed) as with the guilt of the appellant (alone or as Bergeron's accomplice, or vice-versa). [ 48 ] This said, the judge could not conclude that the appellant is guilty beyond a reasonable doubt as there is insufficient evidence to support such a finding. * * [ 49 ] For these reasons, I would therefore recommend that the appeal be allowed, that the trial judgment be set aside, and that the appellant be acquitted of the two charges brought against him.

MARIE-FRANCE BICH, J.A.