R v Lola, 2020 SKCA 103

Court of Appeal for Saskatchewan Docket: CACR3271 Citation: R v Lola , 2020 SKCA 103 Date: 2020-08-19 Between: Remy Lola Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Ryan-Froslie and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice Leurer On appeal from: 2019 SKQB 63 , Moose Jaw Appeal heard: March 16, 2020 Counsel: Bob Hrycan for the Appellant Wade McBride, Q.C., for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] Remy Lola appeals his conviction after trial in the Court of Queen’s Bench for possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]: R v Lola , 2019 SKQB 63 [ Trial Decision ]. Mr. Lola was sentenced to two years less a day incarceration, and ancillary firearms and DNA orders were imposed on him. [ 2 ] For the reasons hereinafter set forth, his appeal is dismissed. II. Facts and Background [ 3 ] The germane facts of this case are straightforward. In the fall of 2016, the police were investigating Mr.

Lola for drug trafficking. In January of 2017, the police were involved in mobile surveillance of Mr. Lola in Regina. They observed Mr. Lola driving a brown Nissan X-Trail SUV [X-Trail] throughout the surveillance and installed a tracking device on the vehicle pursuant to judicial authorization. The police also learned that the registered owner of the X-Trail was Roberta Moon. [ 4 ] The police learned through sources that Mr. Lola might be in Calgary to purchase cocaine. Data transmitted by the tracking device showed that the X-Trail had been in Calgary and was travelling back to Regina.

On February 4, 2017, using that data, the police were able to track the X-Trail as it travelled from Calgary eastbound on the Trans-Canada Highway. Officers near Calgary had earlier surveilled the X-Trail and were able to visually confirm that Mr. Lola was the driver. The X-Trail was stopped by the RCMP approximately 3 kilometers east of Caronport, Saskatchewan. Mr. Lola was the sole occupant of the X-Trail. [ 5 ] The police arrested Mr.

Lola for offences contrary to ss. 5(1) and 5(2) of the CDSA and, at the time, informed him of his right to counsel and gave him the standard police warning about making any statements. [ 6 ] The police searched the X-Trail at the Moose Jaw Police Station. Inside the vehicle, police found, among other things, the following items germane to this appeal: (a) 208.3 grams of cocaine secreted behind the stereo console; (

b) a box of business cards in the names of Remy Lola and Roberta Moon in the back of the vehicle; (

c) a “[l]etter of authorization” containing the handwritten words “Lola’s express inc. [ sic ]”; (

d) a number of air fresheners near the front of the vehicle; and (

e) a note on the driver’s side having the following notation: I Roberta Moon sign over Nissan X-Trail to Remy Lola Roberta Moon III. Trial Decision

[ 7 ] Although at his trial Mr. Lola challenged the validity of the tracking warrant for the X-Trail and also alleged the police had violated his s. 8 and s. 9 Charter rights during the vehicle stop, neither of these issues are the subject of this appeal. Accordingly, I need not refer to the portions of the Trial Decision dealing with those issues. [ 8 ] As is often the case, the Crown tendered all its evidence in the Charter voir dires . The parties agreed to the admissible evidence from the Charter voir dires being applied to the trial proper.

The Crown’s case consisted of seven exhibits, including an Agreement and Admissions at Trial document, which admitted the specifics of the vehicle stop and the presence of the drugs in the X- Trail. Four witnesses testified for the Crown. Mr. Lola did not call any evidence. [ 9 ] Sergeant Robert Karaim was accepted as an expert in relation to cocaine trafficking on behalf of the Crown without any challenge by Mr. Lola. That the cocaine found was a trafficable quantity was not disputed.

Sergeant Karaim’s expertise included evidence describing how cocaine was typically packaged, distributed and priced, and evidence connected to the possession, use, distribution and production of cocaine. The expert evidence was presented primarily in his report. Sergeant Karaim also testified that to avoid detection, couriers who transport illicit substances in a vehicle will often use air fresheners to mask the odour of the substances. He concluded, based on all the circumstances, that most, if not all, of the cocaine seized in this case was for the purpose of trafficking.

Sergeant Karaim was not cross-examined about the contents of his report or his testimony, including his opinion concerning the use of air fresheners. [ 10 ] Mr. Lola argued that the Crown’s evidence was not sufficient to prove he possessed the cocaine. He made several submissions in that regard. He argued that the police did not have continuous surveillance of the X-Trail, particularly when it was in Calgary, and that it was possible that someone in Calgary had access to the vehicle and could have hidden the cocaine behind the stereo console without his knowledge.

Secondly, he argued that Roberta Moon could have hidden the cocaine in the X-Trail, again without his knowledge. [ 11 ] In addressing whether the Crown had proven that Mr. Lola had possession and knowledge of the cocaine, the trial judge acknowledged that the Crown’s case was circumstantial. He took direction from this Court’s decision in R v Learning , 2019 SKCA 5 [ Learning ], noting that any determination of possession and knowledge required him to focus on the measure of Mr. Lola’s control over the vehicle as revealed by the evidence.

He then set out the circumstantial evidence that, in his view, proved possession and knowledge beyond a reasonable doubt. [ 12 ] He observed that surveillance showed Mr. Lola was in command of the vehicle. He also noted that police intelligence had informed that Mr. Lola was driving to Calgary to reload with drugs and this was corroborated by the tracking device attached to the X- Trail. Mr. Lola was the driver and lone occupant of the X-Trail when it was stopped and this showed his singular control of the vehicle and its contents.

There was no other evidence of anyone being involved with the X-Trail or its contents. [ 13 ] The trial judge addressed Mr. Lola’s argument that someone else could have surreptitiously hidden the cocaine behind the stereo console without his knowledge. On this issue, he instructed himself, again referring to Learning , that a reasonable doubt or alternative theory to guilt is not rendered speculative by the mere fact it arises from a lack of evidence.

He concluded that the quantity and value of the seized drugs made it inconceivable that the drugs would be casually entrusted to someone who did not know what was in the vehicle and hope for the best. The trial judge indicated that this would defy common sense or logic. In light of all the evidence, he found that this argument was speculative. [ 14 ] The trial judge noted several documents found in the vehicle connected Mr. Lola to it. He observed the note purporting to be a bill of sale was not tendered as proof that the vehicle had been sold to Mr.

Lola, but that inferences that he was in control of the vehicle were legitimately available arising from the discovery of the note bearing his name. He also found the business cards bearing his name and the “[l]etter of authorization” referring to “Lola’s express inc. [ sic ]” connected Mr. Lola to the vehicle because they were personal papers that, as a general rule, could be expected to be kept in a location to which Mr. Lola had access and control (at para 106(g)). [ 15 ] The trial judge also found the use of a third-party vehicle consistent with the evidence in Sgt.

Karaim’s report that third-party vehicles are used to transport drugs. As well, he accepted that air fresheners can be used to mask odours of drugs. He found the cocaine was located close to a multitude of air fresheners and that the sole occupant of the vehicle, Mr. Lola, was the person who would benefit from this tactic. [ 16 ] Last, the cocaine was not locked away and inaccessible. It was located behind the fronting material of the console and, therefore, nothing prevented Mr.

Lola from having access to the drugs. [ 17 ] The trial judge concluded: [108] The Crown argues that all of the above results in the circumstantial evidence not being reasonably capable of supporting an inference other than the accused is guilty beyond a reasonable doubt of knowingly possessing the cocaine. I agree. I have taken the time to set out the evidence with my commentary above.

When this evidence is viewed I find there cannot be any other reasonable competing inference. [109] I find that when the evidence is taken as a whole and when I apply common sense, human experience and logic to determine the probability of outcomes this leads myself to only one reasonable conclusion, namely that Mr. Lola had knowledge of and control of the cocaine that was hidden away beside him in the console area of the vehicle that he had been operating. Accordingly I am satisfied beyond a reasonable doubt that Mr.

Lola had possession of the cocaine found in the vehicle he was operating. [ 18 ] The trial judge convicted Mr. Lola. IV. Issues [ 19 ] Although Mr. Lola and the Crown state the issues differently, all of them can be distilled into two questions: (

a) Did the trial err by failing to consider the absence of evidence in drawing the inferences he did?

(

b) Was the verdict of the trial judge unreasonable based on the inferences he drew regarding knowledge and possession? V. Analysis [20] I turn first to the governing law. [21] The standard of review to be applied to arguments of unreasonable verdicts arising from improper or erroneous inferencesdrawn from circumstantial evidence was set out in Learning: [23] … Rather, this Court must determine whether it was unreasonable for the trial judge to have concluded that the evidence as awhole excluded all reasonable alternatives to guilt (see also: R v Youssef, 2018 SCC 49).

As the Court in R v Villaroman explained: [55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh andconsider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186. This limited weighing of theevidence on appeal must be done in light of the standard of proof in a criminal case.

Where the Crown’s case depends on circumstantialevidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v. Mars (2006), (ON CA), 205C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R., 2003ABCA 148; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SKCA), 97 Sask.

R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, [2014 ABCA 328, 316 CCC (3d)357] at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that averdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is stillfundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”. [22] In R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223, this Court noted that an appellate court can interfere with the verdict only ifthe trial judge’s conclusion that the evidence excluded any reasonable alternative to guilt is itself unreasonable (at para 79, citing R vYoussef, 2018 ONCA 16 at para 4, 428 DLR (4th) 612, affirmed 2018 SCC 49, [2018] 3 SCR 259).

Put another way, where a trial judgerejects an alternate inference to guilt because the theory underlying it is implausible or not a reasonable possibility, the role of this Court islimited to determining if that conclusion was reasonable. [23] The test for an unreasonable verdict demands an assessment of the cumulative effect of all of the evidence and not a piecemealevaluation: R v Montague-Mitchell, 2018 SKCA 78 at para 60, 368 CCC (3d) 322. [24] Regarding possession, knowledge and control, it is common ground that these elements may be proved by circumstantialevidence (see R v Pannu, 2015 ONCA 677 at paras 157 and 127 OR (3d) 545 [Pannu]). [25] In R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman], the Supreme Court of Canada clarified the law ofcircumstantial evidence and reiterated a number of key points about circumstantial evidence and how that type of evidence must beassessed.

These points have been conveniently summarised in Learning as follows: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.As stated by this Court in [R v Lifchus, (SCC), [1997] 3 SCR 320], a reasonable doubt ‘is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence’: para. 30 (emphasis added [in Learning]). A certaingap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absenceof evidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. … ‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. [25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possibleexplanations for what happened. The question is whether the trial judge unreasonably concluded that the evidence, when taken as a whole

and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonableconclusion, namely, that the accused committed the crime. To paraphrase the Court in R v Villaroman (at para 69), while not every trier offact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine [2014 ABCA 328, 316 CCC (3d) 357] (at paras 24-25)said the presence of competing inferences does not necessarily mean a finding of guilt is an unreasonable verdict. Rather, if the trier offact considers an alternative

interpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is notbound to give effect to that alternative simply because it is impossible to exclude it entirely.

In concluding its analysis, the Court said:“The law does not require such proof to absolute certainty: see R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30”. [26] It is fundamentally for the trier of fact to decide whether another way to view the case is adequate enough to raise a reasonabledoubt, and to draw the line that separates reasonable doubt from speculation: Villaroman at paras 56 and 71. [27] I next turn to the arguments of the parties. Mr. Lola argues that it was unreasonable for the trial judge to have concluded theevidence as a whole excluded all reasonable alternatives to guilt. [28] Mr.

Lola submits the trial judge made three errors in that regard. He first argues the trial judge’s statement that there was “noevidence” of anyone else being involved with the X-Trail ignored the admonition in Villaroman that inferences inconsistent with guiltneed not be based only on evidence but can also be based on the lack of evidence. As a corollary, Mr. Lola submits there was someevidence linking Ms. Moon to the vehicle in any event. Second, he argues the trial judge’s initial error coloured his subsequent reasoning,causing him to ignore exculpatory inferences that could be drawn from the evidence. Third, Mr.

Lola impugns the trial judge’s reliance oncommon sense, human experience and logic to determine the probability of outcomes in assessing whether the evidence led exclusively toa conclusion of guilt. He argues that if the trial judge determined that it was probable that Mr. Lola’s guilt was the only reasonableconclusion, that in itself was a reversible error. [29] The Crown submits that Mr. Lola merely disagrees with the result of the trial judge’s analysis.

The Crown argues that therewas ample direct and circumstantial evidence to justify the conviction and, after weighing the competing inferences, the trial judge couldpermissibly reject any inference that might be inconsistent with guilt if he found it was too speculative. However, the Crownacknowledges the trial judge did err by considering in his analysis the evidence of the confidential source information in drawing aconnection between Mr. Lola and the X-Trail, but argues that even if this evidence is excluded, the remaining evidence as a whole canonly lead to a finding that Mr.

Lola knew of and possessed the drugs. A. Did the trial judge err by failing to consider the absence of evidence indrawing the inferences he did? [30] Mr. Lola argues the trial judge’s statement there was “no other evidence of any one being involved with the X-Trail or itscontents” (at para 106(d)) was indicative that he failed, as is required by Villaroman, to consider the absence of evidence when assessinginferences that may be drawn. He also argues this statement was simply not true and there was such other evidence.

These argumentscannot succeed for several reasons. [31] First, this statement is taken out of context by Mr. Lola. The statement is, in my view, a correct observation by the trial judgethat there was no evidence of anyone else having had access to the vehicle while it was in Calgary. I say this because this commentimmediately follows his observation at paragraph 106(

c) that Mr. Lola was the driver and lone occupant of the X-Trail. The comment ismerely a statement of the existing evidence and not a statement he would not consider gaps in the evidence. [32] Second, the trial judge’s statement itself, taken at face value, is not indicative of failing to consider an evidentiary gap or anabsence of evidence as described in Villaroman. At the most, it may indicate a failure to acknowledge the existence of evidence thatconnects someone other than Mr. Lola to the vehicle.

That said, as I will explain later, I am not satisfied that this statement signifies thetrial judge ignored the evidence of Ms. Moon’s involvement with the vehicle. [33] The trial judge was cognizant that the absence of evidence played a

part in the inferences that might be drawn. In paragraph106(d), the trial judge clearly instructs himself that in drawing inferences, especially those surrounding the defence’s theory of an alternatesuspect, he must also consider the absence of evidence. There is nothing in the trial judge’s reasons as a whole that indicates he insisted onpositive evidence of an alternate suspect or approached his analysis in that manner. [34] Third, the gaps or absence of evidence Mr. Lola says the trial judge ignored are those arising out of the manner in whichMr. Lola chose to present his defence.

Villaroman makes it clear that when drawing inferences, a judge must consider gaps in theevidence (at para 36). The gaps mentioned in Villaroman were evidentiary gaps in the Crown’s case. Examples of such gaps would be theabsence of a weapon in cases of violent offences; or a lack of evidence of an obvious motivation for the offence, where identity of theperpetrator is at issue; or, in the case of drug offences, the absence of scales that would be relevant to whether the drugs were beingtrafficked.

In R v Russell, 2020 BCCA 108, 386 CCC (3d) 480, for example, the court was directed by counsel to several gaps in theCrown’s evidence allegedly disregarded by the trial judge concerning the condition of a stolen truck as well as the interaction betweencertain persons that was potentially relevant to whether those persons were parties to the offence. [35] In this case, it may be expected that any alleged gaps or lack of evidence if they existed would clearly be in the Crown’s case,since Mr. Lola called no evidence. These supposed gaps were never identified by Mr. Lola at trial.

Apart from the lack of surveillance inCalgary, his counsel did not, in his final submissions set forth below, point to any gaps relating to inferences that may be drawn as toknowledge and control, especially not in relation to Ms. Moon as an alternative suspect. His counsel stated as follows: In this case, the drugs were highly concealed. No officer was able to spot them without dismantling the stereo system. One could operatea motor vehicle registered to another and have no reason to suspect the drugs were present.

The officer, Sergeant Somers, admitted that nosteps, whatsoever, were taken to track the vehicle’s movements while it was in Calgary or to determine how the registered owner operatedthe vehicle or what she did with it.

The other rational inference available to this Court is that the drugs were secreted there by Ms. Roberta Moon. That cannot be excluded onthe evidence. [36] Before this Court, Mr. Lola argues the trial judge failed to consider there was a lack of evidence of an alternate suspect.However, this case is not really about absence of evidence as used in Villaroman. It is about Mr. Lola having proffered an alternatesuspect theory but providing no plausible or reasonable evidentiary foundation for that theory other than the circumstantial evidence in theCrown’s case, of Ms. Moon’s connection with the vehicle.

Absent something in the circumstances giving rise to an inference of another’sinvolvement, any gap in the evidence pointing toward an alternate suspect does not lay at the feet of the Crown. [37] It is trite that at trial, Mr. Lola was under no obligation to present an evidentiary foundation to raise a reasonable doubt or toprove alternative inferences. An accused may choose to rely solely on the Crown to demonstrate gaps.

However, this Court can takecognizance that when an accused chooses not to testify or to call evidence, that decision carries the risk of not providing the trial judgewith the necessary evidentiary foundation for a defence theory, which, if accepted, could have precluded the impugned inferences frombeing drawn: R v Lehner, 2020 ABCA 248 at para 22.

A failure to provide any further evidence pointing to an innocent explanationundermines the alternative inferences that are available to a trial judge: R v C.D. (2005), (ON CA), 194 CCC (3d) 321(Ont CA) at para 35; R v An, 2015 ONCA 799 at paras 15–16; and R v Wu, 2017 ONCA 620 at para 16. [38] On appeal, the failure to call any evidence to support an innocent inference is a factor that this Court may consider indetermining whether the verdict is unreasonable: R v Noble, (SCC), [1997] 1 SCR 874 at para 104; and R v Shaoulle,2015 SKCA 101 at para 43, [2016] 2 WWR 246. [39] Based on the foregoing, I conclude the trial judge did not make the error described in Villaroman when the Trial Decision isread as a whole. [40] Given my conclusion that the trial judge did not commit the error of ignoring the absence of evidence in drawing inferences,Mr.

Lola’s second and third arguments can be merged into whether, given the inferences drawn by the trial judge, the verdict wasunreasonable B. Was the verdict of the trial judge unreasonable, based on the inferences hedrew regarding knowledge and possession? [41] The Crown quite rightly notes that the ultimate issue that may be distilled from this part of Mr. Lola’s argument is this: Couldit be reasonably inferred from the circumstantial evidence that Roberta Moon might have secreted the cocaine in the X-Trail withoutMr. Lola’s knowledge?

I am satisfied the trial judge properly evaluated this possible inference in light of all the other evidence, the lack ofevidence and the inferences that could be drawn, and did not err in coming to the conclusion that there was no other reasonable alternativeto Mr. Lola’s possession and knowledge of the cocaine. [42] The trial judge clearly and directly addressed Mr. Lola’s argument that someone else placed the drugs in the vehicle withouthim knowing. As mentioned above, the trial judge in paragraph 106(

d) properly instructed himself that, in drawing inferences, he was toconsider the evidence as well as the absence of evidence. [43] Counsel for Mr. Lola in the closing submissions noted above touched on different available inferences. The trial judge wasaware of the theory that someone in Calgary or Ms. Moon could have hidden the cocaine in the vehicle without Mr. Lola’s knowledge.Ms. Moon’s potential involvement was pointed out by counsel in argument. Mr. Lola submits before us that he never argued that someonein Calgary could have secreted the drugs without his knowledge.

However, this aspect of the argument is supported by his counsel’sreferences to the lack of continuous surveillance of Mr. Lola and the vehicle while in Calgary. [44] The trial judge was aware there was circumstantial evidence linking Ms. Moon to the vehicle. He noted in his review of thefacts that the police had seized documents from the vehicle that referred to Ms. Moon: the note purporting to sign the X-Trail over toMr. Lola and business cards with both Mr. Lola’s and Ms. Moon’s names on them. He also noted that the vehicle was registered toMs. Moon. There was also evidence that the police believed that Ms.

Moon and Mr. Lola lived together in Regina, although the trial judgedid not refer to this in the Trial Decision. [45] The trial judge then proceeded to evaluate the inference that someone had placed the drugs in the vehicle without Mr. Lola’sknowledge. He would have been aware that this included Ms. Moon, since she was specifically mentioned by counsel for Mr. Lola as analternate suspect. His task at this point was that set out in Villaroman. He was required to evaluate whether that theory was anotherplausible theory or another reasonable possibility inconsistent with guilt (Villaroman at para 37).

He was required to assess that theorybased on common sense, logic and experience applied to the evidence or the absence of evidence of that theory. The basic question waswhether the circumstantial evidence, viewed logically and in light of human experience, was reasonably capable of supporting aninference that someone else placed the drugs in the vehicle unbeknownst to Mr. Lola and he was unaware of its presence.

If such aninference was not to be drawn, the trial judge was required to be satisfied that the circumstantial evidence was such that it excluded anyother reasonable alternative other than guilt (at paras 36–38). [46] It was for the trial judge to draw the line that separated reasonable doubt from speculation. If the trier of fact considers analternative

interpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effectto that alternative simply because it is impossible to exclude it entirely (Learning at para 25). [47] Although it was impossible to exclude entirely Mr. Lola’s alternative suspect theory, that fact did not make the theory plausibleor reasonable. In light of the circumstantial evidence before him, the trial judge dismissed Ms. Moon’s or any other person’s involvementas speculative.

It was open for him to draw that line between speculation and plausible theory and reasonable possibility. [48] There was no evidence with respect to Ms. Moon’s involvement with the drugs other than her limited connections with thevehicle mentioned above. There was no evidence that she was driving the X-Trail in either Regina or Calgary. There was no evidence she

went to Calgary. Her personal documents were not found in the vehicle. In short, Mr. Lola’s submissions – that the inference that sheplaced the drugs in the vehicle without his knowledge could not be excluded – rested on the sparse circumstantial evidence of Ms. Moon’sconnection to the vehicle as indicated above. [49] The logic behind the inference, that Mr. Lola’s submits should have been drawn, is that the drugs belonged to Ms. Moon andshe likely placed the drugs in the vehicle in Regina. This would also require an assumption that Ms.

Moon would have allowed a largeamount of drugs – worth between $9,000 and $20,000 – to be taken from Regina to Calgary by someone who did not know the drugs werethere. [50] With respect to such an argument, Mr. Lola seeks to distinguish the cases relied on by the trial judge at paragraph 106(

d) thatdetermine it is not reasonable that the quantity of drugs found in the vehicle would be entrusted to someone that did not know they werethere. This paragraph reads as follows: [106] … I will apply the principles set out above in Learning: … (

d) There is no other evidence of anyone else being involved with the X-Trail or its contents (see R v Bryan, 2013 ONCA 97 at para 8[Bryan]). Defence counsel argues that the X-Trail was not under constant surveillance by the police (particularly in Calgary) and possiblysomeone else could have surreptitiously hidden the cocaine behind the front console without Mr. Lola’s knowledge. I acknowledge JusticeCaldwell’s comments (paragraph 105 above) that: “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by themere fact that it arises from a lack of evidence”. (Learning para 24(d)).

However, in Bryan at para 10 the Ontario Court of Appeal held thequantity and value of the seized drugs made it “inconceivable” that the drugs would be casually entrusted to somebody who did not knowwhat was in the vehicle (see also R v Russell, 2011 BCCA 277 at para 88). In our case there is a significant amount of cocaine (208.3grams) valued by Sergeant Karaim at between $8,928 to $16,664. I find that it would be equally inconceivable that somebody would putthis amount of cocaine in the vehicle that Mr. Lola was driving and hope for the best.

That would defy common sense or logic.Additionally, in testing defence counsel’s argument I must do so in light of all of the evidence.

In so doing I find that this argument endsup being speculative. [51] The argument that a large quantity of valuable drugs was entrusted to someone who did not know of their existence or wherethey are located is well-known in the jurisprudence [52] In Pannu, the court observed as follows: [157] … Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it maybe open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v.

Blondin(1970), (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3–4;R. v. To, (B.C.C.A.); and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuablequantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container. [53] There are many other cases with similar conclusions.

See also, for example, R v Aujla, 2015 ONCA 350 at para 68, 395 DLR(4th) 244, where the court sustained a trial judge’s finding that entrusting a large amount of drug to a blind courier was “beyond remote”. [54] The argument that drugs were entrusted to a person unaware of their existence has often been dismissed on the basis that suchan inference, depending on the circumstances, is unreasonable or irrational; but not always. [55] In R v Brissett, 2019 ONCA 11 [Brissett], the court sustained a trial decision regarding two accused found with a large quantityof drugs where such an argument was made.

One accused had testified he was unaware of the drugs and was acquitted, the trial judgehaving found him credible in that respect. The other accused chose not to testify and instead called another witness who provided evidencefrom which it might be inferred that the other accused also did not have knowledge of the drugs. That was found to be not credible and thataccused was convicted. [56] Based on the foregoing, the trial judge’s reliance on the cases mentioned in paragraph 106(

d) was appropriate. I take the pointthe trial judge was making to be simply that, in weighing all the circumstances to assess whether he had reasonable doubt or if analternative to guilt was speculative, it was appropriate for him to also take into account the plausibility that someone entrusted valuabledrugs to the accused without his knowing of their existence or location. I see nothing in paragraph 106(d), or elsewhere in the judgment,that would suggest that the trial judge was abrogating his responsibility to assess Mr.

Lola’s guilt or innocence in the context of all of thecircumstances of this case. [57] Ultimately, the strength of the inference that Ms. Moon would have entrusted the drugs to Mr. Lola unbeknownst to him had tobe evaluated against logic and common sense. In doing so, the trial judge concluded that Ms. Moon as an alternate suspect wasspeculative, given the evidence before him and not before him. I agree that, in the circumstances of this case, it was not a plausible theoryor reasonable possibility. [58] Mr.

Lola, before this Court, also challenges each item of circumstantial evidence and the inference arising therefrom that heknew of and possessed the drugs. These challenges cannot succeed. [59] I will only comment on a few. [60] With respect to documents found in the X-Trail, Mr. Lola submits that the note signed by Ms. Moon was inadmissible becauseit had not been authenticated.

Documents found in the possession of an accused are admissible as non-hearsay original circumstantialevidence to prove the accused’s connection with the matter therein: R v Turlon (1989), (ON CA), 49 CCC (3d) 186(Ont CA) at 190; and R v Emes (2001), (ON CA), 157 CCC (3d) 124 (Ont CA) at para 7 [Emes]. This document foundin the vehicle was relevant for the fact of its existence as real or tangible evidence relevant to a material issue – whether Mr. Lola had asufficient connection to the vehicle to permit the court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the

drugs. It was not necessary to prove the truth of the contents of the document or authenticate it for it to be admissible. The same principles apply to the other documents, such as the business cards and the letter of authorization. [ 61 ] Mr. Lola argues the trial judge was wrong to infer from the presence of documents bearing his name in the vehicle that he was connected to the vehicle. He submits that the business cards, the letter of authorization and the note found in the vehicle show that he was not the only person with a connection to the vehicle.

While this is true, it was open to the trial judge to find that the documents bolstered his connection with and control of the vehicle. Moreover, the principle that personal papers are, as a general rule, maintained in a location to which a person has significant access and control applies to the letter of authorization ( Emes at para 8 ). [ 62 ] Mr. Lola also argues that the trial judge wrongly drew an inculpatory inference from the presence of air fresheners. He submits there was not a “multitude” of air fresheners. Constable Madill, one of the officers who surveilled Mr.

Lola, testified there were “lots of air fresheners at the front of the vehicle” ( Trial Decision at para 35). That statement was not challenged on cross-examination. There was clearly a number of air fresheners close to the location of the drugs. It was open to the trial judge to infer that it was a tactic employed by Mr. Lola to minimize detection of the drugs through their smell.

This is so, notwithstanding there was evidence of dog hair in the back of the vehicle that might have suggested the air fresheners were used to mask dog smell. [ 63 ] The circumstantial evidence as a whole established a constellation of factors that together supported the inference of knowledge by Mr. Lola of the presence of drugs in the vehicle. [ 64 ] Last, it is common ground that the trial judge should not, as part of his analysis, have relied on the hearsay police intelligence evidence tendered as part of the Charter voir dires that Mr.

Lola would be driving to Calgary to “reload with drugs” (at para 106(b)), even if it was only for the purpose of showing a connection with the vehicle. However, even excluding this evidence, there remains substantial evidence bearing on Mr. Lola’s connection with the vehicle and, ultimately, knowledge of the drugs. The conclusion of the trial judge that Mr.

Lola had knowledge of the drugs was based on numerous items of evidence, and the elimination of this item and reliance on only the remaining evidence does not, in my view, impair his analysis or conclusion. [ 65 ] I am satisfied that the trial judge’s drawing of inferences was not in any way coloured by a tendency to look only for inculpatory inferences from the evidence or absence of evidence before him. [ 66 ] I turn to Mr. Lola’s last argument that the trial judge’s reference in his analysis to logic and experience and the probability of outcomes is an error. This too is without merit.

Villaroman is clear that the trial judge may approach the drawing of inferences on that basis. In Learning , at paragraph 28 , this Court described the test for assessing alternate inferences to guilt. Any inference alleged to be inconsistent with guilt must have sufficient probability in the context of the whole of the evidence to rise above mere speculation (at paras 31 and 34). I do not see the trial judge’s reference as an indication that he applied the wrong test to the drawing of inferences. [ 67 ] I am satisfied, looking at the Trial Decision as a whole, that the trial judge did not, as argued by Mr.

Lola, determine he was probably in possession of the cocaine and that his guilt was therefore a reasonable conclusion. The trial judge properly applied common sense logic and human experience to reach the only reasonable inference looking at the evidence as a whole, namely that Mr. Lola had knowledge and control of the cocaine hidden in the vehicle. He determined there were no other reasonable competing inferences. [ 68 ] I conclude my analysis by observing that Villaroman is clear that only alternative inferences that are reasonable are sufficient to raise a reasonable doubt. Mr.

Lola relies on a theory that “could be true” whether reasonable or not. The trial judge concluded that theory did not, on the evidence or lack of it, cross the line from speculation to “plausible theory” or “reasonable possibility” inconsistent with guilt ( Learning at para 24 ). That conclusion was reasonable in the circumstances. [ 69 ] Based on all the foregoing, I cannot say the trial judge’s conclusion that the evidence excluded any reasonable alternative to guilt is itself unreasonable. VI. CONCLUSION [ 70 ] The appeal is dismissed. “Ottenbreit J.A.” Ottenbreit J.A.

I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Leurer J.A.” Leurer J.A.