R. v. Monaghan, 2013 MBCA 87

Citation: R. v. Monaghan, 2013 MBCA 87 Date: 20130920 Docket: AR 12-30-07897 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN: HER MAJESTY THE QUEEN ) ) S. A. Inness ) for the Appellant Respondent ) ) S. A. Bond and- and - ) K. S. J. Elgert ) for the Respondent ) RICHARD STANLEY MONAGHAN ) Appeal heard and ) Decision pronounced: ) September 20, 2013 (Accused) Appellant ) CAMERON J.A. (for the Court): [1] This is an appeal from conviction and application for leave to appeal and appeal sentence for three charges ofpossession of a

Schedule I drug for the purpose of trafficking. Two of the charges relate to 22 oxycodone pills and 270 codeine Tylenol3 pills that were found in the car driven by the accused at the time of his arrest. The third charge relates to 132 codeine Tylenol 3 pillsfound after police executed a search warrant at a storage unit rented by the accused.

Regarding sentence, the accused seeks to appeal theterm of two years’ incarceration concurrent on all charges imposed by the trial judge. [2] Respecting the conviction appeal, the accused argues first, that the trial judge erred in his assessment of thecredibility of a defence witness which caused him to err in law by misapplying the second part of the test in R. v. W.(D)., (SCC), [1991] 1 S.C.R. 742, that is, whether the evidence of the accused, even if not believed, could raise a reasonable doubt.

Second,the accused argues that the trial judge erred in law in concluding that the circumstantial evidence presented by the Crown was of such anature as to demand an explanation, thereby using the accused’s right to silence as a basis for convicting him. [3] We are of the view that the trial judge did not err for the following reasons. [4] Regarding the first argument, at trial, the accused called a witness, who was a passenger in the car that the accusedwas driving at the time of his arrest and who claimed ownership of the 22 oxycodone pills found in a Kinder Surprise egg hidden underthe floor mat on the front passenger side of the car.

This witness stated that he came into possession of the pills when they wereaccidentally left at his residence by a friend of a friend and that, unbeknownst to the accused, the witness had the pills in his possessionon the evening in question. The witness testified that the pills must have fallen out of his pant pocket while he was in the car at somepoint during the evening. [5] The manner in which evidence can be considered in the application of the test in W.(D.) is a question of law and the

standard of review is correctness ( R. v. Menow , 2013 MBCA 72 at para. 20 ). However, i t is trite to say that findings of credibility are entitled to a high degree of deference on review ( R. v. Rocha (S.) , 2009 MBCA 26 at para. 35 , 236 Man.R. (2d) 213). [ 6 ] In this case, the trial judge gave careful reasons explaining why he rejected the evidence, including the fact that the physical evidence of the drugs under the floor mat did not match the witness’s testimony.

He concluded his analysis of the witness’s evidence by stating “I therefore am not satisfied that [the witness’s] evidence helps [the accused] at all.” [ 7 ] Having rejected the witness’s evidence, the accused argues that, in his analysis, the trial judge should have gone on to consider whether the evidence was capable of raising a reasonable doubt and whether the witness could have been lying about the reason why he had possession of the drugs (i.e., not admitting that he had them because he was a drug dealer), although being truthful about the fact that he had possession. [ 8 ] It should be noted that the trial judge considered this possibility and raised it during the Crown’s closing submission. [ 9 ] When a trial judge rejects the testimony of an accused or a witness on his behalf, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” ( R. v .

Vuradin , 2013 SCC 38 at para. 27 ). Failure by the trial judge to specifically analyze the second prong of W.(D.) does not necessarily constitute an error in law. See R. v. D.K.B. , 2012 MBCA 114 at paras. 5-6 , and R. v. Gagnon , 2006 SCC 17 at para. 11 , [2006] 1 S.C.R. 621. So long as it is clear, as it was in this case, that the trial judge was aware that the overarching principle was whether the Crown had proven the case beyond a reasonable doubt. Indeed, he acquitted the accused of two other charges arising out of the same incident.

It is apparent from his reasons that he rejected the testimony of the witness to such an extent that he was left with no reasonable doubt. He did not err in this regard. [ 10 ] The second ground of appeal arises because the Crown relied on circumstantial and expert evidence to prove that the accused had knowledge and control over the drugs and that he possessed them for the purpose of trafficking.

The evidence being circumstantial in nature, the test is that the trier of fact must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty” ( R. v.

Griffin , 2009 SCC 28 at para. 33 , [2009] 2 S.C.R. 42 ). [ 11 ] The standard of review to be applied where a conviction is based on circumstantial evidence is the same as that for an unreasonable verdict; that is, to determine whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion was the guilt of the accused ( R. v. MacLeod (J.M.) et al. , 2013 MBCA 48 at para. 26 ). [ 12 ] In this case, there was ample evidence supporting convictions on all counts. Police observed the accused driving the car throughout much of the evening of the incident.

Although he was not the registered owner of the car at the time of the incident, the accused was previously the registered owner. All of the pills in the car were wrapped and hidden in seemingly innocent containers; there were baggies on the dashboard of the car and a day timer with entries on it consistent with score sheets which included specific reference to the street term for oxycontin.

Also located in the car was an overdue notice for a storage unit in the accused’s name which caused police to obtain a search warrant for the unit. [ 13 ] Execution of the search warrant led to the discovery of 132 codeine Tylenol 3 pills. Also, similar items such as Crest tooth whitening strips, Oil of Olay skincare products, Gilette Fusion razors, Nicorette gum, Nicoderm patches, asthma inhalers and assorted tools were found in both the car and the storage unit. The striking similarity of these “drug store” items is remarkable.

There were personal papers of the accused, such as a bill of sale for a motor vehicle, vehicle registration documents and a cell phone billing record in the storage unit. As well, items such as aluminum foil, baggies and a scale were found in the unit, all possible drug paraphernalia according to expert evidence called at trial. [ 14 ] In this case, the trial judge found that the circumstantial evidence was of such strength as to cry out for an explanation. In doing so, he applied the law as set out by this court in R. v. Oddleifson (J.N.) , 2010 MBCA 44 , 255 Man.R. (2d) 68.

Given the evidence as a whole, he did not err in this conclusion. [ 15 ] Having found that the trial judge did not err on any of the grounds alleged by the accused, we would dismiss his appeal as to conviction. [ 16 ] With respect to the accused’s application for leave to appeal and appeal of his two-year sentence, at trial, the Crown had asked for three years’ incarceration and the accused asked for a conditional sentence.

On appeal, the accused argued that the trial judge erred in his consideration of the conditions to be met before the court could order a conditional sentence in cases of this nature, and that, in any event, the sentence was harsh and excessive. [ 17 ] Specifically, in reference to persons who encourage or promote the drug culture in order to make money, the trial judge stated: ….

If such people are to be dissuaded from embarking upon such a course absent unambiguous, extenuating circumstances, a period of incarceration is justified. [ 18 ] We are concerned by the trial judge’s use of the phrase “absent unambiguous, extenuating circumstances.” [ 19 ] If the trial judge meant that, in order to obtain a conditional sentence in cases of drug offences, the mitigating circumstances must be exceptional and extraordinary, then that would constitute an error in principle. [ 20 ] If, on the other hand, he meant that, given that general deterrence is a primary consideration with respect to drug offences, a conditional sentence was not appropriate in this case, then we would agree with him.

[ 21 ] There were a number of factors that the trial judge listed which indicated that an incarceratory sentence was more appropriate here. These included: • the drugs were

Schedule I drugs; • the accused was engaged in a commercial enterprise, albeit it as a street-level dealer; • the accused had a criminal record, even though unrelated; • he was not a youthful offender so that rehabilitation was not as primary a consideration. In fact, the accused was 67 years of age; and • he was on interim release at time of offence. [ 22 ] Because of all of the above, we believe that the sentence in this case was fit. Consequently, leave to appeal is granted, but the appeal as to sentence is dismissed. J.A. J.A. J.A.