Court of Appeal for Ontario
Judges: Doherty, Laskin and Tulloch JJ.A.
Between:
Her Majesty the Queen Respondent
and
Cheuk Ki Wu Appellant
Counsel:
Delmar Doucette and Daniel C. Santoro, for the appellant
Tom Lemon, for the respondent
Heard and released orally: November 13, 2015
On appeal from the conviction entered on August 6, 2014 by Justice B. Thomas of the Superior Court of Justice.
ENDORSEMENT
1In our view, the verdict is unreasonable and cannot stand. Assuming that it was open to the trial judge to find that the bag that the appellant placed in Mr. Lo’s car at about 9:10 a.m. was the same bag that the police retrieved from Mr. Lo’s car some three and one-half hours later, we are satisfied there is no evidence upon which a reasonable trier of fact could infer that the drugs found in the bag at about 12:30 were in the bag some three and one-half hours earlier when the appellant placed it in Mr. Lo’s car.
2The bag was in a motel room for two hours and 20 minutes. The Crown led no evidence concerning access to the bag while it was in the motel room. The Crown also led no evidence as to who or what was in the motel room when Mr. Lo and his companion exited the motel room and went to the car with the bag.
3In the absence of any evidence about who had access to the bag over that two hour and 20-minute period, we think it was unreasonable to conclude that the Crown had proved beyond a reasonable doubt that the contents of the bag had not changed between 9:10 a.m. and 12:30 p.m. when the police seized the bag.
4In convicting the appellant, the trial judge said:
I find it is mere conjecture to suggest that somehow the contents of the bag changed while it sat in Mr. Lo’s Kenora motel room. I have no evidentiary basis upon which to make that conclusion.
5We agree with counsel for the appellant that the trial judge erred in approaching his task by looking for evidence from which he could infer that the contents of the bag had changed. The trial judge was required instead to look for evidence that would satisfy him beyond a reasonable doubt that the contents of the bag had not changed. The difference between these two approaches is fundamental to a correct application of the criminal burden of proof. In our view, this error explains why the trial judge arrived at what we conclude is an unreasonable result.
6The appeal is allowed, the conviction is quashed and an acquittal is entered.
“Doherty J.A.”
“John Laskin J.A.”
“M. Tulloch J.A.”