R. v. Murphy, 2014 NSCA 91

Nova Scotia Court of Appeal Citation: R. v. Murphy , 2014 NSCA 91 Date: 20141023 Docket: CAC 420792 Registry: Halifax Between: Gordon James Murphy Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: September 15, 2014, in Halifax, Nova Scotia Subject: Criminal law: requirements for constructive possession

Summary: A property manager of an apartment complex testified that the appellant was the sole occupant of a two bedroom apartment. The police searched the apartment. On entry, a man was asleep on the couch. He was released. The police found hydromorphone, cocaine, cash, scales and paraphernalia indicative of commerce in those drugs. The appellant was not present in the apartment, and no evidence was adduced that tended to show that he knew of, and was in control of, the drugs. Nonetheless, a jury found the appellant guilty of possession of the drugs for the purpose of trafficking.

He appealed, alleging that the verdicts were unreasonable or not supported by the evidence. Issue: Result: Are the verdicts unreasonable? To convict, the jury must have concluded that the Crown had proven beyond a reasonable doubt that the appellant was the sole occupant, and from that fact, inferred that he had the requisite knowledge and control over the drugs that were hidden in the apartment. The evidence of the property manager that, in her view, the appellant was the sole occupant of the apartment constituted some evidence of that fact. “Some evidence” is insufficient.

The jury’s conclusion conflicts with the bulk of judicial experience. A properly instructed jury, acting judicially, could not reasonably conclude that the Crown had proven beyond a reasonable doubt that the appellant was the sole occupant of the apartment, and hence had the requisite knowledge and control of the drugs. The appeal is allowed, the verdicts quashed and acquittals entered. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 22 pages. Nova Scotia Court of Appeal Citation: R. v.

Murphy , 2014 NSCA 91 Date: 20141023 Docket: CAC 420792 Registry: Halifax

Between: Gordon James Murphy Appellant v. Her Majesty the Queen Respondent Judges: Beveridge, Farrar, and Scanlan, JJ.A.Appeal Heard: September 15, 2014, in Halifax, Nova ScotiaWritten Release: October 23, 2014Held: Appeal allowed, per reasons for judgment of Beveridge, J.A.; Farrar and Scanlan, JJ.A. concurringCounsel: Darlene MacRury, for the appellant Mark Donohue, for the respondent Reasons for judgment: INTRODUCTION [1] The police entered an apartment through an open door. A man was asleep on the couch. He was the only one there.

A searchturned up a bottle of hydromorphone pills, cocaine, cash, a scale and documents indicating commerce in those drugs. [2] A jury convicted Gordon James Murphy of possessing those drugs for the purpose of trafficking contrary to s. 5(2) of theControlled Drugs and Substances Act. The Honourable Justice Cindy Bourgeois (as she then was) was the trial judge. Mr. Murphy wasat that time fifty years of age, with no prior conviction. Justice Bourgeois sentenced Mr. Murphy to 36 months’ incarceration. [3] Mr.

Murphy appeals from conviction on the sole ground that the verdicts are unreasonable or not supported by the evidence. The evidence was unusually thin. Giving due deference to the advantages a jury has as it hears the evidence, I must conclude thatviewed through the lens of judicial experience, the weight of the evidence is so lacking so to make the verdict based on it unreasonable. For the reasons that follow, I would allow the appeal and enter acquittals. THE LEGAL FRAMEWORK [4] Courts of appeal have an important role to play in criminal cases. They must ensure that wrongful convictions do not occur.

The Court’s jurisdiction is statutorily defined by s. 686(1) of the Criminal Code. The Court is given the power and duty to rejectverdicts that are tainted by non-harmless legal error, a miscarriage of justice or where the evidence is so tenuous that a reasonable trier offact, properly instructed, could not reasonably convict. [5] Section 686(1) reads: 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or notcriminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [6] The test to be applied in assessing a complaint that a verdict is unreasonable or cannot be supported by the evidence is wellknown; it is not open to debate. It is not sufficient that an appellate court merely be satisfied that there was some evidence that couldsupport a conviction.

An appeal court must re-examine, and to some extent, re-weigh the evidence, and consider its effect. [7] The traditional expression of the test is clearly set out in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168. In R. v.Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, the Supreme Court was asked to modify the test. The Court unanimously

declined. Arbour J., for the court, described the test: [36] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot besupported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever a jury goes beyond a reasonable standard. ... [T]he test is 'whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered'. (Yebes, supra, at p. 185 (quoting Corbett v.

The Queen, (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and,within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjectiveexercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.

The test is thereforemixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or asubjective test. [Emphasis added] [8] The need to defer to a verdict reached by a properly instructed jury was recently emphasized in R. v. W.H., 2013 SCC 22. Theappellant was convicted of sexual assault.

Conviction depended on the jury’s assessment of the credibility of the complainant, and thatof the appellant who testified, denying any impropriety. [9] The Newfoundland Court of Appeal concluded that the improbabilities and unexplained inconsistencies in the complainant’sevidence could not be reasoned away and quashed the conviction as being unreasonable.

The Supreme Court found that although anappeal court’s jurisdiction to quash a conviction as being unreasonable extends to cases where the outcome hinged on assessment ofwitness credibility, the Court of Appeal had applied the wrong test and failed to give proper deference to the advantages of the jury whoheard the evidence as it unfolded. [10] Cromwell J., writing for the Court, charted the course for appellate courts in reviewing a jury verdict: [27] Appellate review of a jury's verdict of guilt must be conducted within two well-established boundaries.

On one hand, the reviewingcourt must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard theevidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt basedon its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubtbased on its review of the record. [28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence.

A positive answer tothe question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of thereviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh theevidence" (Biniaris, at para. 36) and consider through the lens of judicial experience, whether "judicial fact-finding precludes theconclusion reached by the jury": para. 39 (emphasis added).

Thus, in deciding whether the verdict is one which a properlyinstructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidencein the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience: Biniaris,at para. 40. [Emphasis added] [11] This is not the first time that the Supreme Court has voiced the caution that an appeal court must not merely act as a “13th juror”.

Justice Arbour in Biniaris explored the difficulty facing an appeal court when reviewing a jury verdict: [38] The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the allegedunreasonableness of a verdict reached by a jury. If there are no errors in the charge, as must be assumed, there is no way of determiningthe basis upon which the jury reached its conclusion. But this does not dispense the reviewing court from the need to articulate the basisupon which it finds that the conclusion reached by the jury was unreasonable.

It is insufficient for the court of appeal to refer to avague unease, or a lingering or lurking doubt based on its own review of the evidence. This "lurking doubt" may be a powerfultrigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, aproper basis upon which to interfere with the findings of a jury.

In other words, if, after reviewing the evidence at the end of anerror-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt,which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeedreached in a non-judicial manner.

In that case, the court of appeal must proceed further with its analysis. [39] When a jury which was admittedly properly instructed returns what the appeal court perceives to be an unreasonable conviction, theonly rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty verdict, was not acting judicially. Thisconclusion does not imply an impeachment of the integrity of the jury. It may be that the jury reached its verdict pursuant to ananalytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment.

Sucherror would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself of the verdict would beapparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes theconclusion reached by the jury. Judicial appreciation of the evidence is governed by rules that dictate the required content of thecharge to the jury.

These rules are sometimes expressed in terms of warnings, mandatory or discretionary sets of instructions by which atrial judge will convey the product of accumulated judicial experience to the jury, who, by definition, is new to the exercise. Forinstance, a judge may need to warn the jury about the frailties of eye-witness identification evidence. Similarly, years of judicialexperience has revealed the possible need for special caution in evaluating the evidence of certain witnesses, such as accomplices, whomay, to the uninitiated, seem particularly knowledgeable and therefore credible.

Finally, judicial warnings may be required when the

jury has heard about the criminal record of the accused, or about similar fact evidence. But these rules of caution cannot be exhaustive, they cannot capture every situation, and cannot be formulated in every case as a requirement of the charge.

Rather, after the jury has been adequately charged as to the applicable law, and warned, if necessary, about drawing possibly unwarranted conclusions, it remains that in some cases, the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced. [40] When an appellate court arrives at that conclusion, it does not act as a "thirteenth juror", nor is it "usurping the function of the jury".

In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience . This, in my view, is the assessment that must be made by the reviewing court.

It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction. [Emphasis added] [ 12 ] It is with these principles in mind I turn to the admissible evidence heard by the jury. THE EVIDENCE AT TRIAL [ 13 ] As already described, when a complaint of unreasonable verdict is made, the appeal court must review, analyze, and within the limits of appellate disadvantage, weigh the evidence.

What then was the admissible evidence that the jury heard, and what findings of fact and reasonable inferences could be drawn from it? [ 14 ] The Crown called six witnesses. One was a police officer, qualified to give expert opinion evidence. Four police officers testified about their involvement in the investigation. The sole civilian witness was Mrs.

Coleen Morrison, the property manager of the apartment building at 73 Dominion Street, Glace Bay, Nova Scotia. [ 15 ] On September 4, 2008, the police executed search warrants for three locations: a storage locker believed to be rented by the appellant; a residence located at 2274 Sydney Road, Reserve Mines; and one for Apartment 5 at 73 Dominion Street. [ 16 ] The police arrested the appellant when they searched the home at 2274 Sydney Road. No drugs or any relevant evidence was found. Likewise on the search of the storage locker. [ 17 ] It was quite a different story for Apartment 5 at 73 Dominion Street. Csts.

Somerton and Popwell were the first to arrive. The door to the apartment was ajar. They entered. Cst. Somerton described finding “an older gentleman” asleep on the chesterfield in the living room. Cst.

Somerton determined his identity and released him without charge. [ 18 ] A search of the apartment turned up: $290.00 in cash in a kitchen cupboard; empty Ziploc bags containing an unknown white residue; score sheets with names and dollar amounts; a thermos found under the kitchen cupboards containing two bags of cocaine, each weighing approximately 29 grams; 26 hydromorphone pills (in an unmarked pill bottle) found in the master bedroom dresser drawer; a digital scale; 14 grams of cocaine in the nightstand beside the bed in the master bedroom, along with a white mixing bowl; $1,315.00 in cash found in a safe in the master bedroom; .4 grams of cocaine in a man’s jacket in the hall closet. [ 19 ] Cst.

S.E. Timmons gave expert opinion evidence that, based on the totality of everything found, the possession of the controlled substances would absolutely not be for personal use. He put the retail street value of the cocaine (without further dilution of the product) to be between $5,840.00 and $7,300.00, and the hydromorphone pills to be between $1,560.00 and $2,340.00. Cst.

Timmon’s opinions were not challenged in cross-examination or by any other evidence. [ 20 ] The key issue at trial was: had the Crown proven beyond a reasonable doubt that the appellant was in possession of the cocaine and hydromorphone found in Apartment 5 at 73 Dominion Street. [ 21 ] The Crown did not adduce one shred of evidence from the search that connected the appellant to Apartment 5 or to any of the drugs and associated paraphernalia found in that apartment. Nothing was tested for fingerprints. Photographs were apparently taken, but not adduced at trial.

No personal effects, bills or other documents were described as being present, let alone associated with the appellant. The police referred to finding and seizing a set of car keys, but there was no evidence linking those keys to any particular car or anyone, and certainly not to the appellant. [ 22 ] The sole source of admissible evidence led by the Crown that connected the appellant to Apartment 5 came from the property manager of the building, Mrs. Coleen Morrison. Her evidence was short, but to the point. It occupied only 13 pages of the transcript, including cross-examination. [ 23 ] Mrs.

Morrison identified the appellant as the tenant for Apartment 5 at 73 Dominion Street from 2006 to the early fall of 2008. She asserted that he lived there by himself, except he did have a girlfriend who stayed with him for couple of weeks in 2006, until she got an apartment of her own in the building. [ 24 ] In terms of the formal legal arrangements, Mrs. Morrison described how the appellant came to her office in 2006 with Stewart MacMullin. The lease was in Mr. MacMullin’s name, with the appellant listed as an occupant.

The rent was paid by automatic withdrawal from Stewart MacMullin’s chequing account. [ 25 ] Twice, the payment ‘bounced’. Both times, the appellant paid Mrs. Morrison in cash to replace the dishonoured payment from Mr. MacMullin’s bank account. The first time was on July 7, 2006 ($525.00). The second was on May 7, 2008 ($525.00 plus $25.00 for the NSF fee). The receipt for this latter cash payment was introduced as an exhibit.

[26] Mrs. Morrison described that she had occasion to speak with the appellant when she was cleaning the halls, and that a few times“he got locked out and he came over and I had to go over and open his apartment to let him in”. She said she saw him coming andgoing. [27] The evidence of Mrs. Morrison was not really challenged when examined by the appellant. The only additional informationadduced in cross-examination was that she did not live in the same building, nor socialize with the appellant; she simply saw theappellant as she was going about her duties as manager or if there was a problem.

In addition, she confirmed that the first time the policecontacted her about the events of 2006 to 2008 was in November 2012. [28] The appellant did not testify. He did call his sister, Cheryl Scott, as a witness. Mrs. Scott described how she had lived at 2274Sydney Road until she was 20 years of age, and then moved away for 26 years. There was some confusion about dates.

She said shereturned in 2007 when her mother underwent surgery, but came home permanently in July 2009, and was present when the policeconducted the search of 2274 Sydney Road and arrested her brother. [29] In any event, she testified that she was familiar with Apartment 5 at 75 Dominion Street as being the residence of StewartMacMullin, a friend of her brother. To her knowledge, the appellant had never resided there. She did visit the apartment in 2006 withthe appellant and their mother. Mrs. Scott said they went to the apartment as that was where the appellant kept his two cats.

Mr.MacMullin let them in. [30] The Crown asked the jury to conclude that the appellant lived in the apartment at 73 Dominion Street, and therefore hadcontrol over its contents including the drugs, which they could infer he had knowledge of, in light of their location in the apartment andvalue. [31] The appellant urged the jury to find a reasonable doubt that he was in possession of the drugs. Counsel was highly critical ofthe quality of the police investigation: the long delay in contacting Mrs.

Morrison; there had been no police surveillance connecting theappellant to the apartment; nor prints, documents or anything else that connected the appellant to the apartment, let alone the drugs. Inessence, it was the absence of evidence that mandated a reasonable doubt. Reliance was also placed on the evidence of Mrs. Scott. ANALYSIS [32] The case against the appellant was entirely circumstantial. No one saw him exercise any acts of control over the drugs, nor washe in actual possession of them.

However, criminal liability for possession of drugs can attach if an accused is proven to haveconstructive or joint possession of them. [33]

Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 directs that possession means possession within themeaning of subsection 4(3) of the Criminal Code. Section 4(3) of the Code creates three ways a person can be found to be in possession:personal possession; constructive possession; and joint possession. The formal language used is as follows: 4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the possession of each and all of them. [34] This was a case of constructive possession. That is, the Crown asserted that the appellant knowingly had the drugs atApartment 5 for his use or benefit. To state the obvious: there was no direct evidence that the appellant knew the drugs were in thatapartment. [35] The Crown argues that to convict the appellant, the jury must have rejected the evidence of Mrs. Scott, and accepted theevidence of the property manager, Mrs.

Morrison, that the appellant was living in the apartment by himself. From that fact, and that factalone, the jury must then have inferred that he knew of the presence of the drugs found in the master bedroom and under the kitchencupboard and had control over them. [36] I agree with the Crown that it was open to the jury to reject the evidence of Mrs. Scott and accept that of Mrs. Morrison. Tofind the appellant guilty of possession, they must have done so. But is the evidence of Mrs.

Morrison as to the occupancy of theappellant sufficient to permit the jury, acting judicially, to find the charges proven beyond a reasonable doubt? [37] Put another way, would a trier of fact, without more, be entitled to infer that the appellant knew of the presence of the drugsfound in the master bedroom and under the kitchen cupboard in a thermos and had control over them? [38] The Crown referred to a number of cases to assist in answering this question. [39] In R. v. Grey, (ON CA), [1996] O.J. No. 1106 (C.A.), a trial judge convicted the appellant of possession ofcocaine for the purpose of trafficking.

A search warrant was executed on an apartment. The apartment was that of the appellant’sgirlfriend. Neither the appellant nor his girlfriend were present when the warrant was executed. The police found a bag of cocainehidden in a cassette player sitting on a dresser in the master bedroom. There were both men’s and women’s clothing hanging in thecloset. A bag containing a set of scales and personal papers in the appellant’s name was also located in the closet, along with $1,570cash in a skirt pocket.

[40] The appellant testified. He admitted staying over at the apartment three or four nights a week, but denied any knowledge of thepresence of cocaine. He explained that he worked in a restaurant and that the scales were used to measure ingredients, an explanation thetrial judge accepted. [41] Nonetheless, the trial judge rejected the balance of the defence evidence and convicted. Laskin J.A., writing for the Court,concluded that the verdict was unreasonable and directed an acquittal: 16 There was no direct evidence of the appellant's knowledge.

The Crown did not have a witness who could state affirmatively that theappellant knew about the cocaine. Also, the drugs seized by the police were not in plain view -- they were hidden. To find that theappellant had possession of the cocaine, the trial judge had to infer knowledge from the circumstantial evidence. The case against theappellant rested principally on his regular occupancy of Ms. Escoffery's apartment and on the presence of his clothing and otherbelongings in the bedroom where the crack cocaine was found. The question is whether the trial judge was entitled to infer knowledgefrom this evidence.

In my opinion, he was not. [42] After referring to a number of authorities, Laskin J.A. cautioned that there should not be a firm rule for inferring knowledgefrom occupancy: 22 I would not prescribe a firm rule for inferring knowledge from occupancy: cf. R. v. LePage, (SCC), [1995] 1S.C.R. 654, 36 C.R. (4th) 145. In the present case no other evidence connected the appellant to the drugs, there was no direct evidence ofknowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and theappellant was not a permanent occupant.

The circumstantial evidence does not therefore support a finding that the appellant hadknowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable. [43] In R. v. Pham, (ON CA), [2005] O.J.

No. 5127, aff’d, 2006 SCC 26, the majority reasons for judgmentreferred to the basic principles that govern the law of constructive possession: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R.v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9 B.C.A.C. 290, 19W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence.

It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge. The court of appeal decision in R. v. Sparling, [1988] O.J.

No. 1877 upheld the above passage as being sufficient evidence to inferknowledge. 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can beaccomplished by direct evidence or may be inferred from circumstantial evidence.

In Re: Chambers and the Queen, supra at 448, MartinJ.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control ofan accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presenceof the drug." [44] In that case, the appellant was the tenant in an apartment from October 2002 to March 2003. The occupant of an adjoining unitdescribed seeing numerous people come to the appellant’s door, slip money under the door, followed by a clear plastic bag coming out,containing “white stuff”.

These activities were observed right up to March 1, 2003. [45] In December 2002, Lieng Nguyen moved into the apartment. The police conducted surveillance. They observed many peoplewith known drug addiction come and go. On March 3, 2003 the appellant left her apartment. On March 4, 2003 the police saw a personattend the appellant’s apartment. On leaving, they searched him and seized two pieces of crack cocaine. [46] A warrant was obtained and executed on March 5, 2003. Mr. Nguyen was the only person in the apartment. In the bathroomthe police found two pouches next to the sink.

One was a small black purse with 9.8 grams of individually wrapped crack cocaine. Theother was a pink make-up bag containing $165.00.

The appellant did not testify. [47] The majority found the conclusion of constructive or joint possession not to be unreasonable in light of, amongst other factors:the evidence that the appellant used her home as a drug trafficking center; the black purse containing the drugs and the pink make-up bagwere in full view in the bathroom, a common area of the apartment; the bags were consistent with the personal toiletries of the appellantand were found amidst her belongings; there was no evidence of any men’s toiletries in that bathroom; the main bedroom containedwomen’s clothing, the appellant’s passport, and materials used to wrap crack cocaine. [48] The New Brunswick Court of Appeal in R. v.

Smith, 2012 NBCA 99 heard an appeal from a judge’s decision to convict based onevidence of joint or constructive possession. The appellant was under police surveillance. They saw him on the balcony of an apartmentbelonging to his friend, Elizabeth Wilson. When the police searched the apartment, the appellant was present along with Ms. Wilson. Aconsiderable array of various drugs, phones, score sheets and drug paraphernalia made it clear that whoever possessed those drugs did so

for the purpose of trafficking. [49] The police testified that the appellant made several comments that they considered incriminating, and had directed them to asupply of drugs in a small closet next to the kitchen. The appellant testified. He denied pointing out to the police where the drugs were,and put an innocent or neutral spin on his comments. [50] In relation to the dual requirements of knowledge and control, Drapeau C.J.N.B. quoted with approval a lengthy extract from aleading text on drug offences.

I will reproduce a portion of it: 16 Whether the requisite degree of control exists is a question of fact, which stands to be determined in the light of the particularcircumstances of each case. In Drug Offences in Canada, 3d ed. looseleaf (Aurora, Ont.: Canada Law Book Inc., 2012), the authors,Bruce A. MacFarlane, Robert J.

Frater & Chantal Proulx, provide, at paras. 4.1280-4.1296, the following insights regarding evidence ofcontrol in residential cases: In residential cases of constructive possession, it should also be noted that where a person occupies a room, such occupation constitutessome evidence from which an inference may be drawn that the person was aware of the presence and had control of a drug found withinthe room: see R. v. Chambers (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont.C.A.); R. v. Fairgrieve (1996), (BC CA), 83 B.C.A.C. 219, 136 W.A.C. 219 (B.C.C.A.); R. v. Tran (2000), 45 W.C.B. (2d) 531 (B.C.S.C.); R v.

Pearson, 2000BCCA 216; see also Carnes v. State, 480 N.E. 2d 581 (Ind. App. 2 Dist. 1985); and R. v. Papaluca (2001), 123 A. Crim. R. 322(C.C.A.W.A.); R. v. Peterson (2002), 175 B.C.A.C. 313, 289 W.A.C. 313 (B.C.C.A.); U.S. v. Paulino (unreported, March 29, 2006, U.S.Court of Appeals, 2d Cir., docket no. 04-2553-cr). However, a rebuttable presumption of possession because of tenancy or occupancydoes not exist at common law or under the Controlled Drugs and Substances Act, and a decision by a trial judge to analyze the evidenceon a presumptive basis constitutes a reversible error: R. v.

Watson (2011), 2011 ONCA 437 , 94 W.C.B. (2d) 733 (Ont. C.A.), atpara. 13. Whether and to what extent any particular accused can be tied to drugs found in residential premises will depend on a range of factors,including: whether the accused lived there or regularly stayed over; whether others lived there or stayed over, and the frequency;clothing and other indicia of living arrangements; who paid the rent or mortgage; in whose name are the various utility accounts;frequency of attendance based on surveillance; and relationship between individuals appearing to live in the premises.

This is not, ofcourse, an exhaustive list. For example, knowledge and control over openly visible drugs can and often will be inferred where theaccused are the only ones living in the premises: R. v. Vu (2004), 2004 BCCA 381 , 201 B.C.A.C. 293, 328 W.A.C. 293(B.C.C.A.), at para. 33; R. v. Wu (2010), 2010 BCCA 589 , 92 W.C.B. (2d) 9 (B.C.C.A.); R. v. Callejas (2011), 94 W.C.B. (2d)498 (Ont. C.A.), at para. 8.

On the other hand, where the accused simply visited the premises from time to time and had a key to the door, but there was no otherevidence connecting the accused to the drugs and the other persons frequented the premises, an inference of knowledge and controlusually will not be drawn: R. v. Grey (1996), (ON CA), 47 C.R. (4th) 40 sub nom. R. v. Escoffery (Ont. C.A.), at pp. 41-3; R. v. Do (2003), (ON CA), 175 C.C.C. (3d) 176 (Ont.C.A.), at paras. 23-26.

Indeed, where the evidence adducedby the Crown is entirely circumstantial, and razor thin, a trial judge is entitled to enter a directed verdict where the evidence does notmeet the standard established by the Supreme Court in USA v. Shepard, (SCC), [1977] 2 S.C.R. 1067: R. v. Beals (2011),2011 NSCA 42 , 302 N.S.R. (2d) 358 (C.A.). [51] The Court had no difficulty in concluding that the verdict reached was not unreasonable. The conclusion was reached for anumber of reasons.

Among them: the trial judge rejected the innocent or neutral gloss of the appellant’s incriminating comments; therewas male clothing present; the appellant’s truck keys were found near a bag of marijuana in the pantry; there were three bronchialinhalers (recently prescribed) located in a kitchen cupboard. [52] The last case is that of R. v. Sampson and Anderson, 2009 NSSC 133. The police executed a search warrant for an apartmentrented by Mr. Sampson. They found both accused in bed, together in the main bedroom. In the closet there was a brown jacket.

Hiddenin the lining was a bag containing 9.66 grams of cocaine. Also in the closet were small quantities of other drugs, including mushrooms,valium and dilaudid, a birth certificate for Mr. Sampson, a lease in a name that Mr. Sampson used on other occasions, and a digitalscale. In the bathroom they found a digital scale with a white residue that tested positive for cocaine, white crumbs of cocaine, andplastic bags. [53] Neither Mr. Sampson nor Ms. Anderson testified.

A defence witness was called who claimed ownership of the 9.66 grams ofcocaine in circumstances that would demonstrate that neither of the accused had knowledge of it. The trial judge was Wright J. of theNova Scotia Supreme Court. He rejected the defence evidence as a total fabrication. [54] Justice Wright convicted Mr. Sampson. His reasons in relation to finding Mr. Sampson in possession were: [30] The evidence shows that the cocaine was found in the lining of a jacket hanging in the closet of the main bedroom (the onlybedroom in apparent use) of the apartment leased by Mr. Sampson.

The clothing and men's toiletries found in the apartment furtherdemonstrate that he lived there. True, the cocaine was found inside a jacket which does not appear to fit him, but having examined it, Iinfer that the cocaine was deliberately hidden in the lining of that jacket as it was found.

Moreover, the scales with cocaine residue andthe packaging materials found in the bathroom is highly indicative that the occupant of the apartment (which I am satisfied was Mr.Sampson), had knowledge and control of the bulk amount of cocaine found in that residence. [31] I am accordingly satisfied beyond a reasonable doubt that Mr. Sampson had knowledge and control of the 9.66 grams of cocainefound in his apartment and thereby had constructive or attributed possession of it. [55] Justice Wright acquitted Ms. Anderson.

The jacket in the main bedroom closet appeared to be a woman’s jacket, although thiswas by no means certain. But importantly, there was no indication of ownership. There was no evidence of the presence of femaleclothing, other than what she had been wearing, and the only toiletries were men’s. In sum, the only link between her and the cocainewas that she was present in the apartment at the time it was searched.

[ 56 ] It is safe to extract a number of principles from these authorities. The question whether an accused has constructive possession of something is a question of fact. Whether a judge or jury can reasonably draw the requisite inference of knowledge and control will therefore depend on the totality of the circumstances.

Occupancy of premises in which there are drugs and related paraphernalia in plain view, or hidden in circumstances indicative of likely knowledge, can be sufficient to ground reasonable inferences of knowledge and control. [ 57 ] In this case, the Crown commented that a trial judge would not likely have convicted. I agree. The drugs and other related items were not in plain view. There is lacking any of the usual evidence that demonstrates regular occupancy or connection to the drugs.

There was no evidence the appellant’s belongings were present in the master bedroom, (or anywhere in that apartment), or that he paid the power or phone bill. Car keys were found, but no evidence that they were in any way related to any vehicle connected to the appellant. [ 58 ] If I was trying this case based on the trial record, I would have a reasonable doubt. I venture to say that in every case where an appeal court finds a verdict to be unreasonable or unsupported by evidence such a conclusion is necessary.

But the law is clear, it is clearly not a sufficient basis to say the verdict is unreasonable. [ 59 ] An appeal court is not a venue to re-try cases. We are precluded from merely substituting our views for those of the trier of fact. [ 60 ] The appellant stresses that while the property manager described the appellant as being the sole occupant of Apartment 5, and having seen him coming and going, there was no actual evidence of a temporal connection to the critical date of September 4, 2008. I acknowledge that there is “some evidence” supportive of occupancy at that time. Mrs. Morrison testified: A. And Mr.

Murphy was a tenant at 73 Dominion Street, Apt. 5 from eh… Q. Apartment Number 5. A. Apartment 5 yes. Q. I am sorry I cut you off. A. Um, from April 2006 until um, 2008. Q. And what, how long, how late into 2008? A. Um, probably eh early fall I would say. Q. Okay so that would include September of 2008? A. Yes. Q. Okay. And were you aware if there was anyone else living there with Mr. Murphy or was he living there by himself? A. Um, he was there by himself. Q. By himself. A.

Yes. [ 61 ] The only qualification to her evidence was that in the summer of 2006 the appellant’s girlfriend lived in Apartment 5 with him for couple of weeks, and the tenancy was in the name of Stewart MacMullin, with the appellant listed as an occupant. [ 62 ] There was no attempt by the Crown to establish the basis of her claimed knowledge that the appellant was the sole occupant.

If he were the sole occupant, judicial experience, as found in the cases set out earlier, demonstrate that occupancy, and hence control over premises proximate in time to the discovery of drugs, is established by such things as presence at the location or the presence of personal effects in relevant areas. [ 63 ] These things are missing in this case. In addition, when the police executed the warrant they found Mr. Myers asleep on the chesterfield with the door to the apartment open. There was no evidence how he gained entry and what he was doing there. The jury did hear testimony that Mr.

Myers told the police that he “resided in the apartment”. Another police officer said Mr. Myers indicated to them that he was “a neighbour”. Either version was inadmissible hearsay evidence that cannot inform our analysis, nor that of the jury’s, although they were not directed to disregard this evidence. Therefore, the jury heard no admissible evidence as to why Mr.

Myers was present in that apartment. [ 64 ] The 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 (see R. v. Watson , 2011 ONCA 437 ¶ 11 , 13). [ 65 ] The problem here is that the only evidence of the essential fact that the appellant was the sole occupant was that of Mrs. Morrison. I do not dispute that her evidence constitutes “some evidence” that the appellant was the sole occupant, nor do I suggest that there is any basis to doubt the credibility of Mrs.

Morrison as a truthful witness. [ 66 ] The issue is the weight that can be assigned to this evidence. Mrs. Morrison did not live in the same building. There was no reference to the source or basis of her knowledge for her assertion that the appellant was the sole occupant. [ 67 ] If the appellant were the sole occupant, why is it that the Crown did not produce a shred of evidence that the appellant’s

belongings were present in that apartment. Surely if a person had lived in a two bedroom apartment for two years, there would bedocuments, bills, clothing, personal effects—something. [68] The only reference to personal effects was to a set of car keys and a jacket. The jacket was in the hall closet (.4 grams ofcocaine was seized from one of its pockets). The police did not seize the jacket. There were no photographs introduced of the jacket orof the closet where it was found.

There was no evidence that it was a man’s or woman’s jacket, or whether there were other clothespresent. [69] The Crown led no evidence about where the car keys were found, just that Cst. Robert MacMullin seized them. If the appellantwere the sole occupant, surely the car keys were his, and the Crown could have led evidence tending to establish this fact. But theappellant was not present. It is a matter of common sense that he would have had his car keys with him, if he owned a car. Someone bythe name of Amos Myers was present.

There was no admissible evidence as to explain why he was present, and what he was doingthere. [70] There was evidence that the police searched the appellant (and the premises where he was located) when he was arrested. If hewere the sole occupant of Apartment 5, why did the police not find a set of keys to that apartment. [71] I do not suggest that cases of constructive possession are a special class of case that somehow require corroborative evidencebefore a finding of guilt can be made. That cannot be the law. It is not.

Nor, as I have indicated earlier, is it insufficient for the Crownto rely on sole occupancy to prove knowledge and control. Much will depend on other circumstances as to whether a trier of fact canreasonably draw those inferences. [72] In light of all of these circumstances, I must conclude that with all due respect, the jury reached its verdict in a non-judicialmanner. The only basis upon which the jury could find knowledge and control is to draw an inference. But on what evidence? It is plainthat Mrs. Morrison had no personal knowledge whether the appellant was the sole occupant.

She never said she was in the apartment. She did not socialize with the appellant. She was the property manager for 36, two bedroom apartments spread out over four buildings. I do not doubt that she believed what she testified to. But that belief, in light of all of evidence, is of insufficient weight from which toinfer knowledge and control in the absence of any other evidence. [73] One can be understandably suspicious about the appellant’s connection to Apartment 5. After all, he was listed on the lease asan occupant. Mrs.

Morrison saw him coming and going and on a “few occasions” let him in when he was locked out.

Even according tohis sister, he, at least at one time in 2006, kept two cats there (there was no suggestion that any cats were even present on September 4,2008); and he personally paid the rent twice, both times in cash and as recently as four months prior to the search. [74] However, in my opinion, the evidence led by the Crown in this case simply does not permit a reasonable trier of fact to draw aninference that the appellant had the requisite knowledge and control over the contents of Apartment 5 on September 4, 2008.

As Idescribed earlier, a trier of fact would be entitled to draw an inference of knowledge and control of contraband in a location, and hencepossession, if sole occupancy were established. [75] Here, it would be unreasonable for the jury to find sole occupancy of Apartment 5 on September 4, 2008 established beyond areasonable doubt. I do not lose sight of the general rule articulated by the Supreme Court in R. v.

Morin, (SCC), [1988] 2S.C.R. 345 that individual pieces of evidence must not be evaluated in a piecemeal fashion using the criminal standard of proof. [76] In other words, if a trier of fact is confronted with several pieces of evidence, they should not ask whether they are satisfied thatthe existence of each piece of evidence has been established beyond a reasonable doubt, but should instead ask whether the totality of theevidence supports a finding of guilt beyond a reasonable doubt.

Justice Sopinka explained why this approach is the correct one: [36] The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectfulopinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not theweighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual memberof the jury to rely on the same facts in order to establish guilt.

The law is clear that the members of the jury can arrive at their verdict bydifferent routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion… [77] The rationale that compels this approach is based on the reality that since individual jurors are permitted to weigh the evidencedifferently, and take different routes to their legal conclusion, it is inappropriate to set out how each piece of evidence should be proved.

To do so would require the jurors to agree on the implications of each piece of evidence, as well as the chain of reasoning which couldlead them from that evidence to the legal conclusion.

All a jury is required to find is that the elements of the offense have been provenbeyond a reasonable doubt. [78] However, there are cases, admittedly rare, which turn on a single piece of evidence, and the determination of the existence of afact based on that evidence is a determination whether the elements of the offense have been proven beyond a reasonable doubt. [79] In other words, there is only one path from what was presented in court to a finding of guilt.

It is appropriate in those cases torequire that a jury be satisfied that a particular fact has been proven beyond a reasonable doubt because that requirement is implied fromthe general criminal standard. There is no way to be satisfied that the elements have been proven beyond a reasonable doubt without alsobeing satisfied that the sole incriminating fact has been so proven. [80] This reality was recognized in R. v.

White, (SCC), [1998] 2 S.C.R. 72 where the Court concluded that a juryneed not be told that the Crown must establish beyond a reasonable doubt after the fact conduct before it could be used or relied on toinfer guilt (¶ 39). Major J., for the court, nonetheless acknowledged there could be cases where such an approach was proper: [55] This does not mean that a jury may never be instructed to apply the reasonable doubt standard to evidence of post-offence conduct.

In the rare case where evidence of flight or concealment is the only evidence or constitutes substantially all of the evidence of theCrown, it follows that such evidence must be proven beyond a reasonable doubt in order to support a conclusion of guilt, and it

would not be error for the trial judge to make this clear to the jury. In addition, where evidence of post-offence conduct is so crucialto the Crown's case that the final determination of guilt necessarily turns upon it, and the evidence is subject to two directly conflictinginterpretations, the trial judge would be justified in telling the jury that in choosing which theory to believe with respect to that evidence,they should consider the record as a whole and give the benefit of the doubt to the accused.

As in MacKenzie, however, such a chargewould only be proper if it did not involve any significant departure from the standard of proof that the jury would properly apply in anyevent by virtue of the general instruction on reasonable doubt. A reasonable trier of fact, acting judicially and following the correct legalprinciples could not find this case proven beyond a reasonable doubt. [Emphasis added] (See also R. v.

Seck, 2011 QCCA 2250 at ¶ 29.) [81] In this case, the jury were not charged that to draw the inference of knowledge and control (and hence possession), they neededto be satisfied beyond a reasonable doubt that the appellant was indeed the sole occupant. The trial judge told the jury: The Crown has presented evidence which, if accepted by you, could establish beyond a reasonable doubt that Mr. Murphy was in fact inpossession of substances at 73 Dominion Street, Apt. 5. Mr.

Murphy has also presented evidence, which may give rise to a reasonabledoubt, as to whether or not he was in possession of substances at that particular location. [82] The trial judge then reviewed the evidence that bore on the crucial issue of possession. This review was, quite understandably,limited to the Crown evidence of Mrs. Morrison and the defence evidence of Mrs. Scott. The Crown on appeal concedes that the onlyevidence that suggested the appellant was the sole occupant of Apartment 5 was that of Mrs.

Morrison; and that there is not a shred ofother evidence that the appellant occupied that apartment on September 4, 2008 or otherwise had knowledge and control over the drugsfound there. [83] The appellant has raised no objection on appeal to any aspect of the jury charge. In the absence of such a challenge, I willassume that the jury was properly charged so that they understood that they needed to find sole occupancy by the appellant proven forthem to draw inferences of knowledge and control. [84] The evidence of Mrs.

Morrison constitutes “some evidence” that the appellant was the sole occupant, and hence knew of, andwas in control of the contents of Apartment 5. If our role were limited to determining if there were some evidence to support the guiltyverdicts, the appeal would be dismissed. But as outlined in R. v. Biniaris and R. v. W.H., supra, we are required to do more. [85] We must review, analyse, and within the limits of appellate disadvantage, weigh the evidence. This mandate has lead me toconclude that in all of the circumstances, the jury’s implicit finding of sole occupancy on September 4, 2008 was unreasonable.

Theevidence here simply does not support a judicial finding of knowledge and control—necessary elements to establish possession under s.4(3) of the Criminal Code. [86] There is not a shred of direct evidence in the trial record that the appellant had knowledge of and control of the drugs found onSeptember 4, 2008 in Apartment 5. An inference of these essential elements could only be via a finding of sole occupancy. It wouldhave taken very little additional evidence to sustain these verdicts, but there was none.

In my respectful view, based on the totality of thecircumstances, the jury’s conclusion conflicts with the bulk of judicial experience. The verdicts are therefore unreasonable. [87] The Crown points out the failure of the appellant to testify at trial is a factor that an appeal court can consider where anappellant complains that a verdict is unreasonable. In my view, an otherwise unreasonable finding of guilt cannot be made reasonablemerely because the accused elected not to testify.

The fact that an accused did not testify at trial can be used by an appellate court toindicate that it does not have an alternative explanation for the conduct in issue, but cannot be used to sustain a conviction that isotherwise unreasonable or not supported by the evidence (see R. v. Noble, (SCC), [1997] 1 S.C.R. 874 ¶ 103; R. v.Gagnon, (2000), (ON CA), 147 C.C.C. (3d) 193, 136 O.A.C. 116 ¶ 132). [88] I would allow the appeal and enter acquittals. Beveridge, J.A. Concurred in: Farrar, J.A.

Scanlan, J.A.