R. v. Murphy, 2022 NSCA 26

Nova Scotia Court of Appeal Citation: R. v. Murphy , 2022 NSCA 26 Date: 20220330 Docket: CAC 501041 Registry: Halifax Between: Lonnie Mercelle Murphy Appellant v. Her Majesty the Queen Respondent -and- Mark Knox Intervenor Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: February 17, 2022, in Halifax, Nova Scotia Subject: Criminal law: misapprehension of the evidence; unreasonable verdict; circumstantial evidence analysis; and, ineffective assistance of trial counsel.

Summary: The police obtained a search warrant for the appellant’s pawn shop business to search for drugs. Shortly after the appellant’s arrest, an officer testified he saw a small bag drop from the appellant. It contained cocaine. Other bags of cocaine and cutting agent were located nearby, along with a digital scale with cocaine residue and small baggies. A large quantity of marijuana was seized from a storage area of the pawn shop. Based on all of the evidence, the trial judge accepted the drug expert’s opinion, possession of the cocaine and marijuana was for the purpose of trafficking.

A large quantity of new merchandise, musical equipment and tools were observed. A second warrant was obtained to search and seize items the police believed to have been stolen. The trial judge rejected the appellant’s denials of knowledge of the drugs and his claim that he did not know the property was stolen. Conviction on the drug charges, and many of the charges of possession of stolen property, knowing it was stolen, followed.

The appellant complains the trial judge misapprehended the evidence, erred in his circumstantial evidence analysis, the verdict is unreasonable and there was a miscarriage of justice because his trial counsel did not provide effective assistance. On this last complaint, the appellant advanced a fresh evidence motion. Issues:

(1) The trial judge misapprehended the evidence.

(2) The trial judge erred in his analysis of the circumstantial evidence.

(3) The trial verdict is unreasonable and cannot be supported by the evidence.

(4) Ineffective assistance of trial counsel. Result: The motion to adduce fresh evidence and the appeal are dismissed. The appellant failed to demonstrate any misapprehension of evidence, legal error in the trial judge’s circumstantial evidence analysis, the verdict was unreasonable or unsupported by the evidence, or the conduct of trial counsel amounted to unreasonable professional conduct, nor any prejudice to his fair trial rights. 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 21 pages. Nova Scotia Court of Appeal Citation: R. v. Murphy , 2022 NSCA 26

Date: 20220330 Docket: CAC 501041 Registry: Halifax Between: Lonnie Mercelle Murphy Appellant v. Her Majesty the Queen Respondent -and- Mark Knox Intervenor Judges: Beveridge, Bryson and Beaton JJ.A.

Appeal Heard: February 17, 2022, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge J.A.; Bryson and Beaton JJ.A. concurring Counsel: Laura McCarthy, for the appellant David Schermbrucker and Susan Bour, for the Public Prosecution Service of Canada Timothy O’Leary, for the Public Prosecution Service of Nova Scotia Jason Cooke and Danielle Keating, for the Intervenor Reasons for judgment: INTRODUCTION [ 1 ] Lonnie Murphy appeals from his convictions for possession of cocaine and marijuana for the purpose of trafficking and various Criminal Code offences for possession of stolen property. [ 2 ] Initially, the appellant, with the assistance of his current lawyer, launched an appeal with no fewer than twenty particularized allegations of reversible error committed by the trial judge.

The appellant also claimed the verdict was unreasonable and could not be supported by the evidence, and he was the victim of a miscarriage of justice because his trial lawyer provided ineffective assistance. [ 3 ] Appellate counsel distilled the issues to four: misapprehension of evidence; errors by the trial judge in relation to circumstantial evidence; unreasonable verdict; and, ineffective assistance of trial counsel.

To try to inject substance into this last issue, the appellant filed his affidavit and a motion to adduce fresh evidence. [ 4 ] With respect, none of the issues raised by the appellant have merit. I would dismiss both the motion to adduce fresh evidence and the appeal. [ 5 ] Before addressing the identified issues, it is useful to set out some background information to provide context. BACKGROUND [ 6 ] The appellant owned and operated the London Pawn Shop at 2859 Isleville Street, Halifax. He said one Donnie Francis was a co-owner. [ 7 ] On October 25, 2017, a confidential informant (CI) told D/Cst.

Michael Sanford the appellant is trafficking in cocaine, marijuana and prescription pills over the counter at his London Pawn Shop on Isleville Street. The CI also advised the appellant is knowingly accepting a large quantity of stolen goods at his pawn shop. [ 8 ] D/Cst. Sanford accessed police databases. They showed the appellant’s business address for the London Pawn Shop as 2859 Isleville Street and the existence of outstanding charges against the appellant of possession of marijuana for the purpose of trafficking.

D/Cst. Sanford swore an Information to Obtain (ITO) a search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act . [ 9 ] The ITO set out D/Cst. Sanford’s historic relationship with the CI and the grounds for his belief the CI was a reliable source.

The ITO also set out the CI’s description of having seen cocaine in the London Pawn Shop, packaged for resale, within the previous 48 hours. [ 10 ] On October 26, 2017, a Justice of the Peace issued a search warrant for the London Pawn Shop. [ 11 ] Early in the afternoon of October 26, 2017, two officers went to the London Pawn Shop posing as customers. The appellant was not present. When surveillance reported the appellant’s arrival shortly before 3:00 p.m., the officers returned. Close on their heels were D/Cst. Sanford and a team of police officers. [ 12 ] Cst. MacIsaac and D/Cst.

McNeil saw the appellant behind a counter in an office area. D/Cst. McNeil arrested the appellant and attended to the associated formalities. A pat down search produced keys, cigarettes, a phone, and a wallet. Once handcuffed, the appellant was seated in the office chair. The officers noticed the appellant moving his hands around his waistband. It was not normal. They directed him to stand. At this time, D/Cst. Sanford saw a hand movement by the appellant and a small clear baggie fall to the floor. It contained 2.1 grams of cocaine.

In close proximity, they noticed a 20.5 gram bag of benzocaine (a cutting agent used to increase a dealer’s profit). [ 13 ] The police subsequently found and seized a 50 gram bag of cocaine from a shelf under the counter. Also seized were a large quantity of small baggies and an operational digital scale. The scale had cocaine residue on it. A desk drawer contained another bag of benzocaine weighing 49 grams. [ 14 ] Police seized a total of 3488.5 grams of marijuana, found in various bags and quantities, in what was described as the storage or garage area of the Pawn Shop. [ 15 ] D/Cst.

Sanford saw a number of new high-end appliances with original price tags. Other items still had security tags attached. He saw new trolling motors which he believed came from an October 22, 2017 theft from the Sackville Canadian Tire store. Sanford decided he should obtain a search warrant with respect to what he believed to be stolen property. [ 16 ] D/Cst. Sanford swore two further ITOs to obtain s. 487 Criminal Code warrants. One was for the London Pawn Shop, the other for the appellant’s residence.

The parties at trial and on appeal refer to the ITO for the London Pawn Shop as the basis for the “second warrant”. Items seized pursuant to the execution of the “third warrant” for the appellant’s residence played no role at trial. [ 17 ] The s. 487 ITO for the London Pawn Shop set out the same details about the information and reliability of the CI. It added further particulars from the CI which named the individuals said to have committed the Sackville Canadian Tire theft on October 22, 2017, and that they had traded the stolen property to the appellant for cash or drugs. [ 18 ] D/Cst.

Sanford described his personal observations of the high-end appliances in their original packaging, the trolling motors with Canadian Tire store identifiers, and the large assortment of electronics, music and construction equipment. [ 19 ] The police laid charges against the appellant and an employee, Michelle Yetman, under both the Controlled Drugs and Substances Act and the Criminal Code . The trial judge eventually acquitted Ms.

Yetman of all charges. [ 20 ] The appellant and his co-accused faced multiple counts of possession of property, stolen from named and unnamed owners, with values both over and under $5,000.00. In addition, there was one count of unlawful possession of property for the purpose of trafficking knowing it was obtained by the commission in Canada of an indictable offence contrary to s. 355.5 (

a) of the Criminal Code . [ 21 ] The CDSA charges were possession of marijuana in excess of three kilograms and cocaine, both for the purpose of trafficking contrary to s. 5(2) of the CDSA . [ 22 ] The appellant and his co-accused elected a judge alone trial in the Supreme Court. They waived their right to a preliminary inquiry and consented to proceed directly to trial. The Honourable Justice Jamie S. Campbell was the trial judge.

The trial proceedings [ 23 ] Some of the details of the events at trial are relevant to the appellant’s claim trial counsel provided ineffective assistance. [ 24 ] Mark Knox, Q.C. represented the appellant for much of the trial. Mr. Knox brought a motion to exclude the evidence seized from the London Pawn Shop. He alleged the appellant’s s. 8 Charter rights were violated because the ITO for the CDSA warrant displayed insufficient grounds to justify the issuance of the warrant. If a s. 8 violation were made out, he requested the trial judge exclude the evidence pursuant to s. 24(2) of the Charter . [ 25 ] Mr.

Knox successfully obtained leave to cross-examine the affiant, D/Cst. Sanford. After cross-examination, he argued the ITO contained incomplete and misleading statements. The trial judge was unconvinced. In an oral unreported decision, he rejected the complaint that D/Cst.

Sanford intentionally or recklessly misled the Justice of the Peace or failed to provide full, fair and frank disclosure. [ 26 ] The trial judge concluded there was sufficient information set out in the ITO for the Justice of the Peace to conclude there were reasonable and probable grounds to issue the search warrant. [ 27 ] The appellant raises no complaint about this decision. [ 28 ] The Provincial and Federal Crowns presented their respective cases from May 27 to May 30, 2019. The CDSA charges were made out by the physical exhibits and the expert opinion of D/Cst.

Jeffrey Seebold that the evidence demonstrated the possession of

cocaine and marijuana was for the purpose of trafficking. [ 29 ] The Provincial Crown called fifteen witnesses to try to establish beyond a reasonable doubt that the property found in the London Pawn Shop had been stolen. There was direct evidence the property of Long & McQuade, Economy Glass, Duron Atlantic and Stephen Bradley had been stolen. The Crown relied on circumstantial evidence for its case the appellant had in his possession property stolen from persons unknown. [ 30 ] At the close of the Crown’s case, the appellant and Ms. Yetman moved for a directed verdict. They enjoyed partial success.

The Crown had presented no evidence on three counts. They were dismissed. The trial judge also dismissed the firearm and possession of marijuana counts as against Ms. Yetman. [ 31 ] The appellant elected to call evidence. Mr. Knox called five witnesses, two of which testified about their purchases of pallets or lots from Mariner Auctions and having sold some of that merchandise to the appellant. [ 32 ] The trial came to a screeching halt on July 18, 2019. Mr. Knox announced there had been a breakdown in the solicitor/client relationship.

The appellant confirmed he had discharged trial counsel. [ 33 ] The appellant explained the problem to the trial judge: Mr. Knox refused to bring an “innocence at stake” application to compel disclosure of the CI’s identity. The appellant announced his intention to bring such an application with the assistance of another lawyer. [ 34 ] On July 19, 2019, the appellant had a letter from his Toronto lawyer. The record is silent as to its contents. Ms. Yetman and the Crown opposed an adjournment.

The appellant explained the adjournment was not just for his innocence at stake application, but also because there was more evidence that should have been called—in other words, there were more witnesses to call. [ 35 ] The trial judge adjourned the trial. Further dates for trial continuation were set for the fall of 2019. In the meantime, the parties and appellant’s new counsel were to appear on August 8, 2019. [ 36 ] On August 8, 2019, Michael Rombis appeared and confirmed he had been retained by the appellant to assume carriage of his defence. Mr.

Rombis announced he would be calling defence evidence, namely the appellant. No mention was made about any further application. When the trial judge raised the issue, Mr. Rombis had not yet had an opportunity to speak with Mr. Knox. A further appearance date was suggested. If there were to be a further application that would require a voir dire , it would be heard on October 28, 2019. [ 37 ] The trial judge set September 18, 2019 for an appearance by counsel. This was rescheduled to September 27 at Mr. Rombis’ request to allow more time to complete his file review. On September 27, 2019, counsel appeared again.

Mr. Rombis had reviewed all of the transcripts and obtained the appellant’s instructions—there would be no Charter applications. October 28, 2019 would be for defence evidence, with two additional days in December, if needed for three or four additional defence witnesses. [ 38 ] On October 28, 2019, Mr. Rombis advised the trial judge there would be but one further defence witness, the appellant. The appellant testified. He denied any knowledge of the cocaine or marijuana. He claimed his business partner and one Josh Byers had set him up. They had been at the London Pawn Shop earlier that day.

He went to the shop because of numerous phone calls about a party on the premises. He saw them drinking and smoking, then he left to meet a neighbour to provide a quote on a job. [ 39 ] On the appellant’s return to the shop, the music was off. He was only there for seconds when the police arrested him. The appellant claimed the police, in particular D/Cst. Sanford, lied. As for the property in the shop, he had no knowledge it was stolen. He said he ran the shop like any other pawn shop. [ 40 ] Ms. Yetman called no evidence. [ 41 ] Counsel and the appellant made submissions on January 2, 2020.

The trial judge reserved. [ 42 ] On January 31, 2020, the trial judge delivered lengthy oral reasons which are now reported ( 2020 NSSC 35 ). I will add further details later. For now, the trial judge’s own

summary suffices: [6] The only reasonable inference that can be drawn from the evidence relating to the cocaine and marijuana is that Mr. Murphy possessed both cocaine and marijuana for the purpose of trafficking. I find him guilty of both offences. [7] Mr. Murphy was charged with various firearms offences related to a rifle that was found in the pawn shop. The way the firearm was kept within the pawn shop permits the reasonable inference to be made that when Mr. Murphy bought an interest in the pawn shop the firearm was already hidden, intentionally or not, out of sight, and that he did not have knowledge of it.

I find him not guilty of the firearms offences. [8] With regard to the possession of stolen property charges, the Crown has proven that Mr. Murphy was in possession of the items related to businesses named in the indictment and some not named in the indictment but identified as persons unknown. With respect to some of the property of Long and McQuade, Duron Atlantic, Stephen Bradley, Economy Glass, and several other retailers not named in the indictment, but named at trial, the Crown has proven that the property was stolen.

The Crown has not proven beyond a reasonable doubt that property associated with Canadian Tire was stolen. The Crown has proven beyond a reasonable doubt that Mr. Murphy knew that the property was stolen or was suspicious about whether the property was stolen and chose not to ask questions. The Crown has proven that Mr. Murphy had stolen property from several retailers, knowing that it was stolen and that the value was more than $5,000. The Crown has also proven beyond a reasonable doubt that Mr.

Murphy had stolen property in his possession, knowing that it was stolen and possessed it for the purpose of trafficking in those stolen goods. [ 43 ] With this background, I return to the appellant’s grounds of appeal.

ISSUES [44] As earlier described, appellant’s counsel advanced four issues: 1. The trial judge misapprehended the evidence. 2. The trial judge erred in his analysis of the circumstantial evidence. 3. The trial verdict is unreasonable and cannot be supported by the evidence. 4. Ineffective assistance of trial counsel. ANALYSIS [45] The appellant’s factum jointly addresses the issues of misapprehension of evidence and the trial judge’s circumstantialevidence analysis. His factum contains no written submissions the verdicts were unreasonable or unsupported by the evidence.

Nonetheless, counsel’s oral argument came to concentrate on this issue. [46] Although these issues can certainly overlap, from an analytical perspective, it is not only useful but important to keep themseparate. Misapprehension of evidence [47] Where a judge misapprehends trial evidence, it can be the foundation to conclude a verdict is unreasonable, there was amiscarriage of justice, or the misapprehension amounts to legal error (R. v.

Stennett, 2021 ONCA 258, at paras. 51-52). [48] A trial judge can be said to have misapprehended evidence if they failed to consider evidence relevant to a material issue, weremistaken as to the substance of evidence, or failed to give proper effect to evidence (R. v. Morrissey (1995), (ON CA),97 C.C.C. (3d) 193 (Ont. C.A.); R. v. Izzard, 2013 NSCA 88, at para. 40; R. v.

Roberts, 2020 NSCA 20, at para. 20). [49] During oral argument, counsel acknowledged she could not identify in the trial judge’s reasons where the trial judge wasmistaken as to the substance of any evidence, failed to consider evidence, or failed to give proper effect to evidence. [50] In essence, the appellant’s suggestion the trial judge misapprehended the evidence is nothing more than a request that wereconsider the evidence, draw different inferences and arrive at other conclusions. [51] For example, in relation to the charge of possession of marijuana for the purpose of trafficking, counsel contends the trial judge“failed to adequately review the evidence pertaining to possession”. [52] Counsel points to the evidence: the appellant had just entered the pawn shop minutes prior to the police arrival; the bags ofmarijuana were not in his possession; and they were not in the same room with the appellant, nor in plain view.

Based on these points,the appellant submits: [31] It is submitted that had the Trial Judge misapprehended this evidence when the Trial Judge inferred the Appellant was inpossession of the marihuana, or had control over the marihuana considering the Appellant did not know of its presence in thestore. This error amounts to a miscarriage of justice. [Emphasis added] [53] With respect to the count of possession of cocaine for the purpose of trafficking, the appellant argues: [37] There was no direct observation of the Appellant in physical possession of the packages.

When considered as a whole, thiscircumstantial evidence supports a reasonable inference that the cocaine or benzocaine packages were not in the Appellant’s directpossession, contrary to the inferences in favour of a finding of guilt made by the Trial Judge. Rather the evidence of the Appellant thathe did not possess the drugs or drop them onto the floor ought to be accepted as supporting the reasonable inference that thepackages were not placed in the office by the Appellant considering the contest of the officer’s testimony.

This error amounts to amiscarriage of justice. [Emphasis added] [54] It is not a misapprehension of evidence when a trial judge rejects an appellant’s evidence and draws inferences the appellantdisagrees with. [55] As for the possession of stolen property, again, there are no identified instances of actual misapprehension of evidence. Instead, the appellant simply faults the trial judge for drawing certain inferences and not drawing others. [56] I would dismiss this ground of appeal. Circumstantial evidence analysis [57] Appeal courts are required to defer to trial judges’ factual determinations.

This stricture applies to both facts based on directand on circumstantial evidence. Deference dissipates only if the findings are tainted by non-trivial legal error or are unreasonable.

[58] The seminal case on a trial judge’s duty in assessing circumstantial evidence and the obligation on appellate courts to defer toreasonable inferences of guilt is R. v. Villaroman, 2016 SCC 33. Cromwell J., for the Court, explained: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. (original emphasis) [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [59] In this case, the appellant testified and denied any connection to the drugs found.

On appeal, the appellant concedes that ifpossession of the drugs were made out it was for the purpose of trafficking. [60] The trial judge accepted the police evidence the cocaine fell from the appellant’s personal possession and rejected theappellant’s suggestion that the police or anyone else had “framed” or “set-up” the appellant. The judge addressed the explanations putforward by the appellant and why they raised no reasonable doubt: [33] Mr. Murphy said that he was lured to the pawn shop on the day of the raid by a call that a party was going on at the pawn shop.

Hearrived at about noon and people were drinking and smoking marijuana in the garage area connected to the pawn shop. He looked in fora moment then left. He returned 45 minutes later. The people partying, drinking and using drugs had all left through the back door withno signs that there had been any party there at all. The marijuana, the cocaine and the scale may then have belonged to one of them. [34] Mr. Murphy said that he had not dropped the bags of cocaine and benzocaine when he was placed in the office chair during thesearch.

He said that the police must have just put them there in order presumably to have him in possession of some drugs. The otherdrugs were not his and he had not seen them before. They must have been left by the people who had been having the party and whocleaned up and vanished without a trace except for the drugs left as part of the set up. [35] Anything, or almost anything, is possible. That version of events is so implausible and unreasonable as to not raise areasonable doubt. It would require the police to have colluded to set Mr.

Murphy up, not just as individuals but coordinated as agroup of officers, and not just as a group of officers but with a group of only vaguely identified others, who were at the party. Iaccept the evidence of the police officers who identified bags as having been dropped by Mr. Murphy during the search. [Emphasis added] [61] I see no error in the trial judge’s analysis in relation to the drug charges. [62] The appellant argues the trial judge erred when he inferred certain property had been stolen.

However, the judge accepted thedirect evidence from Long & McQuade, Duron Atlantic, Stephen Bradley and Economy Glass their property had been stolen. [63] For two of the counts in relation to property from Canadian Tire, the judge commented the goods appeared to have been stolen,but acquitted because he acknowledged it may be a reasonable inference, if only marginally so, they were legitimately acquired (para.107). [64] In relation to goods stolen from “unknown persons”, representatives from La Senza, Princess Auto, Hudson’s Bay, TJX(Winners and Marshalls), and Home Depot identified items that had come from their stores.

None could specifically say they had beenstolen. [65] Yet, the totality of the circumstances convinced the judge they were stolen. The following was his approach to the Crown’scircumstantial case: [108] Mr. Murphy is not required to establish the provenance of every or any item in his pawn shop. He does not have to prove that helegitimately acquired anything. The Crown has to prove its case and Mr. Murphy does not need to prove or disprove anything. He hassaid that he acquired items at auction.

He is entitled to make that contention, but there is no evidence beyond his own words that supportthe claim that the goods noted as having been from the various retailers were acquired in that way. Once again, Mr. Murphy does nothave to prove anything. [109] The volume of retail goods was substantial. The presence of multiple items from each retailer is significant. The fact that each wasfound in original packaging is significant. In some case, as with jeans and at least one sheet set, there were security tags still attached.While each individual item might be explainable as an

article brought in by a customer who bought it from a retailer, the presence of somany items packaged in that way sets up an overwhelming inference that the items were stolen. There is nothing to suggest by theirpackaging or otherwise that they were acquired through a bulk resale arrangement. Those retailers do not dispose of inventory in thatway. It is not reasonable to infer that they came into the pawn shop individually. [110] Considering all the circumstances together, the Crown has proven that the only reasonable inference is that goods fromthe retailers whose representatives testified at the trial were stolen. They were not specifically named in the indictment. [Emphasis added]

[66] The appellant points to no error in this analysis. He simply disagrees with the inferences drawn by the trial judge. I would notgive effect to this ground of appeal. Unreasonable verdict [67] An appeal court has the jurisdiction to quash a conviction if satisfied the verdict is unreasonable or cannot be supported by theevidence (s. 686 (1)(a)(ii) of the Criminal Code).

To test if a verdict is unreasonable, an appellate court must re-examine, and to someextent reweigh, the evidence and consider its effect. [68] This engages the following analysis: is the verdict of guilt one a properly instructed trier of fact, acting judicially, couldreasonably have rendered?; or did the trial judge draw an inference or make a finding of fact essential to the verdict that (1) is plainlycontradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible withevidence that was not otherwise contradicted or rejected by the trial judge? [69] Deschamps J., for the majority in R. v.

R.P., 2012 SCC 22, succinctly described the test: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry, 2007SCC 5, [2007] 1 S.C.R. 190). [70] The appellant makes no argument the trial judge drew inferences or made findings that were contradicted by other evidence thejudge relied upon to convict or were incompatible with evidence not rejected or contradicted. [71] The guilty verdicts for possession of cocaine and marijuana for the purpose of trafficking were amply supported by theevidence. Documents and the appellant’s own testimony tied him to being in control of the London Pawn Shop. On his arrest, theappellant was in close proximity to cocaine contaminated digital scales.

Nearby were a bag of cocaine, a cutting agent and smallbaggies. The police also observed a 2.1 gram bag of cocaine fall to the floor from the appellant’s possession and found another bag ofcutting agent nearby. [72] As the Crown acknowledges on appeal, the appellant’s connection to the various amounts of marijuana in the garage area ofthe pawn shop is not as strong as for the cocaine. On the other hand, it is evident the garage area was being used as a storage area fornumerous items consistent with the appellant’s pawn shop operation.

The appellant concedes on appeal that if anyone were in possessionof the marijuana it would be for the purpose of trafficking. It is an appropriate concession. [73] The trial judge recognized the different evidentiary framework with respect to the marijuana. The appellant claimed noknowledge of the marijuana—it had been planted there by the partiers who had been at the shop earlier that day. The judge rejected thisexplanation. Later, he reasoned: [49] It is not for the expert in this case to make the conclusion.

The conclusion is reached with the assistance of expert opinion evidence,but the conclusion is based on the strength of the inference and the lack of any other reasonable inferences. Here, the only reasonableinference that can be reached from all the evidence is that Mr. Murphy possessed both the cannabis (marijuana) and the cocaine for thepurpose of trafficking it.

Any other inference requires not just the occurrence of one possible but unlikely or improbable event but theconfluence of a series of possible but improbable and unlikely events. [50] It should be noted that the evidence supporting possession of marijuana and the evidence supporting the possession of the cocaineare different. The marijuana was not found directly in Mr. Murphy’s immediate possession. It was in another area of the pawn shopwhere items were being stored. The cocaine was directly and immediately connected to Lonnie Murphy.

The amount of cocaine, thepresence of the cutting agent benzocaine and the presence of a scale with cocaine residue on it confirm that Mr. Murphy was in the drugbusiness of selling illegal drugs. It is not using propensity reasoning to use the evidence that supports cocaine dealing to support theinference that the marijuana, kept in the same location and in a quantity and format consistent with trafficking, was also possessed as partof that illegal undertaking. [74] The inference the appellant also possessed the marijuana is one that a reasonable trier of fact, acting reasonably, could make.

Itis supported by the evidence and is untainted by any legal error. [75] I would not give effect to this ground of appeal. Ineffective assistance of counsel [76] The parties have no disagreement about the governing principles. The appellant cites the recent decision of the Ontario Courtof Appeal in R. v.

Faudar, 2021 ONCA 226, where Tulloch J.A. summarized the well-established guideposts to address allegations ofineffective assistance of counsel: [104] To succeed on a ground of appeal on the basis of ineffective assistance of counsel, an appellant must establish three elements: i. the facts on which the ineffectiveness claim is based on a balance of probabilities; ii. that the representation provided by trial counsel amounted to incompetence on a reasonableness standard (the performancecomponent of the test); and

iii. that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse, at p. 59; R. v.Archer (2005), (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; G.D.B., at paras. 24, 26; R. v. Hartling,2020 ONCA 243, 150 O.R. (3d) 224, at paras. 73-74; R. v. Cherrington, 2018 ONCA 653, at para. 25. [77] This is the same test repeatedly articulated and applied (see: R. v. Girn, 2019 ONCA 202, at para. 91; R. v. Fiorilli, 2021ONCA 461, at paras. 47-49; R. v. West, 2010 NSCA 16, at paras. 268-269; R. v. Gogan, 2011 NSCA 105, at para. 29; R. v.

Fraser, 2011NSCA 70, at para. 53; R. v. Ross, 2012 NSCA 56; R. v. Buckley, 2013 NSCA 73; R. v. Finck, 2019 NSCA 60; R. v. A.W.H., 2019 NSCA40, at para. 32). [78] The appellant complains trial counsel’s incompetent representation caused a miscarriage of justice because counsel: • Did not bring an innocence at stake application; • Did not question D/Cst. Sanford about racial bias; and • Did not challenge the Criminal Code warrant (the “second warrant”). [79] To try to meet the factual component, counsel relies solely on the appellant’s May 14, 2021 affidavit.

With respect, thisaffidavit establishes little beyond what is in the record: there was no innocence at stake application; D/Cst. Sanford was not cross-examined about possible racial bias; and, there was no challenge to the “second” warrant. I will touch on the appellant’s complaints. [80] Mr. Knox was granted intervenor status. His August 3, 2021 lengthy affidavit explains his reasons for decisions made at trial. The Court provisionally admitted both affidavits to assess the appellant’s complaints.

Innocence at stake application [81] Neither the police nor the Crown can disclose the identity or any information that could identify a confidential informant. Thelaw recognizes but one exception. A judge can order disclosure where access to the privileged information is not available from anyother source and there is no other avenue to raise a reasonable doubt as to the accused’s guilt (see R. v. Johnston, 2021 BCCA 34, atpara. 75; R. v. Sandhu, 2020 ONCA 479, at para. 64).

This is known as the “innocence at stake” exception. [82] The appellant does not argue he needed to know the identify of the CI in order to establish his innocence. He has alwaysinsisted he knew the CI was one Josh Byers. It was Mr. Byers, along with Donnie Francis and others, who were partying at the LondonPawn Shop earlier in the day of the police raid. They, along with the police, had planted the drugs. No suggestion has ever been madethat the stolen property was planted, although the appellant testified Mr.

Byers had pawned some of the stolen high-end merchandise. [83] The appellant cannot point to any privileged information that would help prove his innocence. Mr. Byers was an availablewitness at trial. Importantly, the appellant could have called not just Mr. Byers but others to try to corroborate his claim there had been aparty and the provenance of the drugs. No information is provided as to what these witnesses would have said at trial. [84] The trial judge adjourned the trial when the solicitor/client relationship between the appellant and Mr. Knox broke down onJuly 18, 2019.

One of the stated purposes of the adjournment was to give the appellant’s new lawyer the time needed to bring aninnocence at stake application. The appellant’s new lawyer, Michael Rombis, did not bring such an application despite ampleopportunity to do so. [85] After conviction but before sentence, the appellant discharged Mr. Rombis. Ms. McCarthy assumed carriage of the appellant’sfile. The trial judge maintained the jurisdiction to reopen the trial (R. v. Kippax, 2011 ONCA 766, at para. 62).

The appellant broughtno application to try to reopen the trial to bring an innocence at stake or any other application. [86] Appellate counsel argues the innocence at stake application was only relevant to challenge the validity of the search warrant. She theorizes this: the ITO referred to numerous details about the reliability of the CI. If the CI were Josh Byers, then the affiantdeceived the Justice of the Peace about the CI’s reliability.

In other words, the appellant says he needs confirmation the CI was JoshByers. [87] The ability to challenge the admissibility of evidence by way of a Charter challenge is part of an accused’s right to make fullanswer and defence (R. v. Hunter (1987), (ON CA), 59 O.R. (2d) 364 (C.A.); R. v. Scott, (SCC),[1990] 3 S.C.R. 979; R. v. Leipert, (SCC), [1997] 1 S.C.R. 281).

This has the potential to create a tension between theright to challenge the validity of a search warrant issued in whole or in part on information from a CI and the sanctity of informerprivilege. [88] Numerous cases have established the appropriate paradigm to resolve such tension (see, for example: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65; R. v. Morelli, 2010 SCC 8; R. v. Crevier, 2015 ONCA 619). [89] In my view, there was no such tension in the case at bar. The appellant challenged the validity of the warrant. He obtained theITO.

The police edited the ITO by redacting one sub-paragraph to protect the identity of the CI. Leave was granted to cross-examinethe affiant. Trial counsel did not argue he needed the redacted information in order to demonstrate the absence of reasonable andprobable grounds for the warrant to issue. Appellate counsel does not suggest otherwise. [90] Instead, the appellant argues if the CI were Josh Byers, then D/Cst. Sanford did not make full and frank disclosure to theJustice of the Peace about the reliability of the CI.

This amounts to nothing more than speculation. [91] Trial counsel investigated the possibility Mr. Byers was the CI, and reasonably concluded there were insufficient grounds toadvance that contention, let alone to meet the stringent innocence at stake test to override the privilege that protects an informant’sidentity.

[92] The appellant cites no case in support of the proposition he is entitled to know the CI’s identity in order to challenge thevalidity of the search warrant. [93] In R. v. Scott, supra, the appellant argued he had the right to ask the police if one Winston Ross was the police informer. CoryJ., for the majority, concluded he did not. However, some comments in obiter could be interpreted as permitting disclosure. He wrote: [40] A third exception may exist where the accused seeks to establish that the search was not undertaken on reasonable grounds andtherefore contravened the provisions of s. 8 of the Charter.

Even under these conditions, a court should strive to provide as muchevidence as possible to the defence by means of editing the information on which the search warrant was based without disclosing theidentity of the informer. That disclosure should only be made in circumstances where it is absolutely essential: see R. v. Hunter, supra. [94] However, in R. v. Leipert, supra, McLachlin J., as she then was, reaffirmed the role of the “innocence at stake” exception.

Sheintroduced the issue as follows: [21] In order to raise the “innocence at stake” exception to informer privilege, there must be a basis on the evidence for concluding thatdisclosure of the informer’s identity is necessary to demonstrate the innocence of the accused: R. v. Chiarantano, [1990] O.J. No. 2603(C.A.), per Brooke J.A., aff’d (SCC), [1991] 1 S.C.R. 906.

In Chiarantano, the possibility that the informationprovided by the informer regarding the arrival at a residence of drugs later found in the possession of the accused might conflict with theevidence of the accused was held not to raise a basis for disclosure pursuant to the “innocence at stake” exception.

The court held thatthe usefulness of the information was speculative and that mere speculation that the information might assist the defence is insufficient.If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord. [22] On the other hand, circumstances may arise where the evidence establishes a basis for the exception, as where the informer is amaterial witness to the crime or acted as an agent provocateur: see Scott, supra.

Where such a basis is established, the privilege mustyield to the principle that a person is not to be condemned when his or her innocence can be proved. [95] McLachlin J. went on to explain this common law privilege did not yield to an accused’s Charter right to disclosure of Crowndocuments and information.

In addition, on a search warrant challenge, absent a basis to conclude disclosure of informer informationwould be necessary to establish an accused’s innocence, such information remains privileged: [26] Where the accused seeks to establish that a search warrant was not supported by reasonable grounds, the accused may be entitled toinformation which may reveal the identity of an informer notwithstanding informer privilege “in circumstances where it is absolutelyessential”: Scott, supra, at p. 996. “Essential” circumstances exist where the accused establishes the “innocence at stake” exception toinformer privilege.

Such a case might arise, for example, where there is evidence suggesting that the goods seized in execution of thewarrant were planted.

To establish that the informer planted the goods or had information as to how they came to be planted, the accusedmight properly seek disclosure of information that may incidentally reveal the identity of the informer. [27] Absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary toestablish the innocence of the accused, the information remains privileged and cannot be produced, whether on a hearing into thereasonableness of the search or on the trial proper. [96] The appellant presents no template for what a hypothetical “innocence at stake” application would have looked like.

TheSupreme Court of Canada in R. v. Brassington, 2018 SCC 37, described the appropriate process to try to pierce informer privilege: [36] The standard for piercing informer privilege – the “innocence at stake” test – is, accordingly, onerous. The test was set out by thisCourt in McClure. The “privilege should be infringed only where core issues going to the guilt of the accused are involved and there is agenuine risk of a wrongful conviction” (McClure, at para. 47).

The McClure application is typically made at the close of the Crown’scase so courts only consider piercing informer privilege when strictly necessary (R. v. Brown, 2002 SCC 32 , [2002] 2 S.C.R.185, at para. 52). There are no other exceptions to informer privilege (Vancouver Sun, at para. 28; R. v. Leipert, (SCC),[1997] 1 S.C.R. 281).

It is “not something that allows for weighing on a case-by-case basis the maintenance or scope of the privilegedepending on what risks the informer might face” (Vancouver Sun, at paras. 19 and 22). [37] On a McClure application, the accused seeks to gain access to informer-privileged information through, ordinarily, a two-stageprocess. The first stage typically takes place in open court, with the accused and all counsel present.

At this stage, as a thresholdmatter, the accused must establish that the privileged information is not available from any other source and that, in light of theCrown’s case, there is no other way for him or her to raise a reasonable doubt. At this stage he or she must also establish an“evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt” (Brown, at para. 4). [38] If such a basis exists, the second stage of the process occurs.

At this stage, the trial judge should proceed to “examine thecommunication to determine whether, in fact, it is likely to raise a reasonable doubt” (Brown, at para. 4). Depending on thecircumstances of the case, the trial judge may review the information alone, or with the assistance of Crown counsel, or with theassistance of amicus where necessary, in camera (see, generally, Brown; Vancouver Sun, at paras. 45-49). [97] This is the appropriate process even where the accused purports to know the CI’s identity and names that person (see R. v.Sandhu, supra, at paras. 63-64).

The appellant has failed to proffer any evidence the identity of the CI was necessary to establish areasonable doubt about his guilt. Possible racial bias [98] The appellant’s affidavit describes how he had concerns that D/Cst. Sanford targeted him or treated him unfairly because hewas African Nova Scotian. He raised his concerns with trial counsel. [99] The appellant appended to his affidavit media information about the decision of a human rights tribunal. That decisioninvolved a 1998 traffic stop of a young Black man, Kirk Johnson, conducted by D/Cst. Sanford. The media reported that the tribunal did

not decide whether the decision to stop the vehicle resulted from a conscious decision or from a subconscious stereotype—either way, it violated the Nova Scotia Human Rights Act . [ 100 ] Mr. Knox acknowledged the appellant had raised the racial bias concern with him. Mr. Knox explained he spoke with other counsel. He sized up the merits of the issue and considered it to be imprudent to pursue it. [ 101 ] The appellant’s complaint fails. First, there is no basis to conclude D/Cst. Sanford or any police officer demonstrated any conscious or subconscious racial bias toward the appellant.

Counsel need not blindly follow any and all lines of questioning suggested by a client. Professional judgment was brought to bear. Not by any stretch could this decision be viewed as incompetence. [ 102 ] Second, no spectre of a miscarriage of justice arises. Appellate counsel candidly admits she does not know the outcome of the proposed cross-examination. There are no fair trial issues and no basis to suggest the verdict’s reliability was compromised by trial counsel not posing to D/Cst.

Sanford some unspecified questions about an incident nineteen years in the past as the foundation for harbouring racial bias against the appellant. Challenge to the second warrant [ 103 ] The second warrant was obtained when the police observed property they believed to have been stolen—some of it very recently. As described earlier, D/Cst. Sanford swore the ITO to obtain the Criminal Code warrant—the so-called second warrant. [ 104 ] This complaint also has no merit.

First of all, the panel asked appellant’s counsel to identify what in the second ITO could possibly be the basis to request the trial judge to conclude the Justice of the Peace could not have judicially issued the warrant. She provided nothing. [ 105 ] Counsel acknowledged the sole basis to criticize the issuance of the second warrant was the same issue as for the CDSA warrant —that the CI was Josh Byers and hence D/Cst. Sanford’s description of his reliability could not meet the standard of full, frank and honest disclosure.

For the same reasons earlier set out, this proposition has no merit. [ 106 ] Second, if a challenge to the second warrant were vital to prevent a miscarriage of justice, appellant’s second trial counsel had every opportunity to do so but demurred. [ 107 ] The appellant has failed to establish a lack of reasonable professional conduct by trial counsel or prejudice. I would not give effect to this ground of appeal. As a consequence, I would not admit the fresh evidence and would dismiss the appeal. Beveridge J.A. Concurred in: Bryson J.A. Beaton J.A.