COURT OF APPEAL FOR ONTARIO DATE: 20220915 DOCKET: C68676

van Rensburg, Pardu and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Sihat Jahangiri Appellant

Counsel: James Lockyer, for the appellant Maria Gaspar, for the respondent

Heard: June 9, 2022

On appeal from the conviction entered by Justice Pamela L. Hebner of the Superior Court of Justice, sitting with a jury, on February 21, 2020.

van Rensburg J.A.:

A. Overview

1The appellant and his co-accused were charged with possession of cocaine for the purpose of trafficking. The co-accused pleaded guilty and testified for the defence at trial. The appellant was tried before a judge and jury: at issue was whether the appellant had joint possession with his co-accused of approximately two kilograms of cocaine that was seized from a storage hut. The appellant was convicted and sentenced to eight years’ imprisonment, less pre-sentence custody. He appeals his conviction.

2The focus of the appeal is on the trial judge’s treatment of evidence of a seizure of cash from the master bedroom in the house the appellant shared with his girlfriend and the co-accused (the co-accused lived in a basement apartment), and cash seized from the appellant’s parents’ home. Although the evidence about both seizures was initially ruled admissible, the trial judge ultimately instructed the jury to ignore the cash seizure from the parents’ home.

3The appellant contends that: (1) the trial judge erred in failing to exclude the cash seizure evidence from the appellant’s home because it was presumptively inadmissible discreditable conduct evidence, and the Crown failed to follow the application on notice requirement under r. 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (the “Criminal Proceedings Rules”); (2) the jury charge was confusing and failed to provide appropriate direction on the use of the cash seizure evidence; and (3) the verdict was unreasonable.

4For the reasons that follow, I would dismiss the appeal. On the first issue, the trial judge did not err in admitting the evidence of the cash seizure from the appellant’s home. The fact that the appellant had a large quantity of cash in his bedroom safe was contemporaneous circumstantial evidence that, at the time of the offence, he was a drug trafficker. This was evidence that was available to be considered with all the other evidence on the question of his possession of the cocaine at issue, and it did not depend for its probative value on propensity reasoning. It was therefore not presumptively inadmissible discreditable conduct evidence requiring a r. 30 application. On the second issue, there was no error in the trial judge’s instructions with respect to the cash seizures. There was no error when, in response to defence counsel’s submissions during the pre-charge conference, the trial judge provided a limiting instruction on the cash seizure from the appellant’s parents’ home, and when she cautioned the jury against propensity reasoning in connection with the cash seizures from the appellant’s home and his person. Finally, the verdict was reasonable. There was compelling evidence of the appellant’s possession of the cocaine. The verdict of guilt is one that a properly instructed jury acting judicially could reasonably have rendered.

B. Facts

5The police obtained information that the appellant’s housemate and long-time friend, Christopher Scollon, would be arriving in Windsor with drugs on May 23, 2017. When Mr. Scollon arrived by train at 11:56 p.m. that evening, he was carrying a red backpack. He got into a white Buick, and was followed by the police to a prefabricated “Quonset” hut on Pillette Road, arriving at approximately 12:07 a.m. He unlocked the padlock on the pedestrian door and entered the hut, carrying a red backpack. At 12:24 a.m., he left the hut, carrying the backpack. The police followed Mr. Scollon to an address on Eastcourt Drive.

6At 2:10 a.m. the appellant left the Eastcourt Drive address in a black Mercedes and drove to the hut. At 2:18 a.m. he entered the hut through the bay door using a keypad. He was carrying a duffel bag. Later, at 3:35 a.m., the appellant came out the bay door, carrying the duffel bag and a plastic bag. The police arrested him at this time.

7The police searched the appellant incident to his arrest. From his person they seized a small Ziploc bag containing 5.8 grams of crack cocaine, three cell phones, rubber gloves, one of which tested positive for cocaine, and a wallet containing his ID and $2,025 in cash. In the plastic bag, the police found four empty packages of vacuum sealed bags wrapped in duct tape, one of which had the number “1182” written on it and another with “1191” written on it. There was cocaine residue on the packaging. The duffel bag contained a cup and a glass, also with cocaine residue on them, Ziploc bags in two sizes (sandwich and freezer), a box of baking soda with a spoon inside, a piece of a Windsor Star newspaper, and a functioning Infinity scale with cocaine residue on it.

8The police searched the hut. Among other things, it contained a white pickup truck, a broken-down burgundy pickup truck, furniture, tools, a desk, and a workbench. Inside the burgundy truck, the police discovered a total of 2,066.8 grams of powder cocaine in a reusable shopping bag and a laptop bag. The shopping bag contained quantities of cocaine apportioned in Ziploc bags as follows: 124 grams, 123.8 grams, 28.1 grams, 20.7 grams, 248.2 grams, 248.6 grams, and 248.5 grams. The 20.7 gram bag of cocaine was wrapped in newspaper, which was a portion of newspaper from the same issue found in the duffel bag seized from the appellant. The laptop bag contained cocaine in Ziploc bags apportioned as follows: 249.3 grams, 248.6 grams, 248.9 grams, and 248.5 grams. In the glovebox of the burgundy truck was a small Ziploc bag with 28 grams of cocaine and a plastic bag tied with a knot containing 1.6 grams of cocaine.

9On the day of the appellant’s arrest, May 24, 2017, the police executed two searches. They seized CAN$18,000 in cash from a safe in the master bedroom of the Eastcourt Drive house. In the attic bedroom of the appellant’s parents’ house on Moy Avenue (the appellant’s address on his driver’s license), they found the appellant’s passport and two safes, one of which contained CAN$50,050 in cash.

10The appellant and Mr. Scollon were charged with possession of cocaine for the purpose of trafficking. The appellant was also charged with possession of crack cocaine for the purpose of trafficking. Before the jury was empanelled, Mr. Scollon pleaded guilty to possession of cocaine for the purpose of trafficking, and he was severed from the indictment. On the second charge, the appellant pleaded guilty to the lesser offence of possession of crack cocaine. His trial proceeded before a jury in respect of the charge of possession of cocaine for the purpose of trafficking.

11Mr. Scollon was the only defence witness; the appellant did not testify. Mr. Scollon testified that he had taken the train from Windsor to Toronto to purchase two kilograms of cocaine from someone named “Bobby”. He had taken with him, in his backpack, $90,000 in cash and the materials needed to repackage the cocaine: baking soda, gloves, Ziploc bags, and a box cutter. Bobby met him at Union Station and a driver took them to a nearby condominium. Once there, Bobby gave him two packages of cocaine. Mr. Scollon gave evidence that each of the packages had a number on it – 1182 and 1191, which reflected their weight in grams, with the packaging material weighing 182 and 191 grams respectively and the balance consisting of cocaine. Mr. Scollon testified that he weighed the powder cocaine and prepared two 3.5 gram samples of crack cocaine by placing four grams of powder cocaine from each package in a Pyrex measuring cup with water and baking soda and microwaving it. He placed the samples into two small Ziploc bags. Later, he described in detail how he had removed the cocaine from its original packaging and, after removing some of the cocaine and replacing it with baking soda, had repackaged it into Ziploc bags in various quantities for individual sale.

12Mr. Scollon testified that he placed the Ziploc bags of cocaine into his backpack, along with the original packaging, the baking soda, boxes of Ziploc bags, and rubber gloves he had brought with him from Windsor. He took the train back to Windsor and went to the Quonset hut. When he was there, he placed the cocaine in a burgundy pick-up truck, and he locked the truck. He testified that he left all of the packaging materials, the Ziploc bags, baking soda and gloves, along with seven grams of crack cocaine, on the workbench, and that he had forgotten his cell phone there. When he got home, he told the appellant to go pick up the items he left on the workbench, including a “surprise” (the two bags of crack cocaine). He claimed that he had asked the appellant to test the crack for him, and that he did not tell him about the powder cocaine he had placed in the truck.

13Mr. Scollon confirmed that he had been friends with the appellant for more than 15 years, that he had been living in the basement unit at the Eastcourt Drive address, and that in May 2017 he had been unemployed for about three months. He disagreed with the Crown’s suggestion that there was no good reason for him to have brought the original packaging back to Windsor, and he denied that he had transported the two-kilogram bricks in their original form and packaging from Toronto to Windsor.

14Mr. Scollon’s red backpack was seized following his arrest. It contained a variety of personal items, including articles of clothing, a book, Zigzag papers, a lighter, a pill case, and lip balm.

15The Crown’s theory at trial was that the appellant and Mr. Scollon jointly possessed the cocaine that was found in the Quonset hut. The Crown asked the jury to reject Mr. Scollon’s testimony because he was trying to cover up for the appellant, his long-time friend. Instead, the Crown suggested that Mr. Scollon had dropped off two bricks of powder cocaine at the Quonset hut after coming back from Toronto, and after returning to the Eastcourt Drive address, he told the appellant that the cocaine was at the hut and asked him to go there to cut and repackage it. The appellant took the necessary paraphernalia with him in a duffel bag, spent over an hour in the hut cutting and repackaging the cocaine, and then he stored it in the burgundy pick-up truck. The Crown also suggested that it was the appellant who paid for the cocaine because Mr. Scollon, who was unemployed and drove an old Buick, was unlikely to have had $90,000 in cash.

16The defence agreed that, if the appellant was found to be in possession of the cocaine found in the pick-up truck in the hut, he possessed it for the purpose of trafficking. The defence argued that the appellant’s possession of the drugs had not been proven beyond a reasonable doubt. The defence asserted that the appellant had gone to the hut where he sampled 1.2 grams of the crack cocaine. On arrest, he was carrying the remaining 5.8 grams of crack and the garbage bag of paraphernalia Mr. Scollon had left at the hut. There was no place in the hut to cut and repackage the cocaine, and there were no traces of powder cocaine in the hut to indicate that it had been handled there. There was also no evidence of cooking, which would have been required to produce crack cocaine.

C. Ruling on the admissibility of alleged discreditable conduct evidence

17During the course of the Crown’s case, the defence objected to the admission of certain evidence the Crown planned to introduce, consisting of the cash that had been seized from the Eastcourt Drive and Moy Avenue locations, and evidence of surveillance establishing the appellant’s presence at the hut in the six weeks prior to the arrest, sometimes with Mr. Scollon and sometimes while carrying bags. The trial judge conducted a voir dire into the admissibility of the evidence.

18Defence counsel argued that the impugned evidence was evidence of discreditable conduct other than the conduct charged, in respect of which the Crown had neglected to bring a pretrial application. Rule 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 requires an application on 30 days’ notice in respect of the proposed admission of evidence that a common law rule or other rule of admissibility renders presumptively inadmissible, including without limitation, “evidence of disreputable conduct by an accused, other than the conduct charged in the indictment”. The defence argued that both types of evidence invited the jury to engage in prohibited propensity reasoning – to infer that the appellant was the type of person who would deal drugs, and therefore had possession of the cocaine at issue.

19The Crown argued that the impugned evidence was “just simply parts of the factual matrix in a circumstantial case” and the evidence had direct probative value without resort to propensity reasoning. Crown counsel acknowledged that, if the evidence in question was evidence of disreputable conduct, it should not be admitted because of the Crown’s non-compliance with r. 30.

20For oral reasons given at the conclusion of the voir dire, the trial judge held the impugned evidence was admissible. With respect to the cash seizures, which are at issue on the appeal, she found that the evidence of the cash was relevant: the presence of a significant quantum of cash in a safe at the appellant’s home and at his parents’ home (located in close proximity to his passport) made it more likely than not that he was in possession of the cocaine, alone or jointly with Mr. Scollon. The trial judge concluded that this was not discreditable conduct evidence because having cash in a safe in and of itself did not tend to show criminal behaviour. The trial judge stated that, if she was wrong in this conclusion, she found that the probative value of the evidence outweighed any prejudicial effect.

21With respect to the surveillance evidence, which is not at issue in the appeal, the trial judge concluded that, while relevant, it was “to some extent” discreditable. She would have admitted the evidence on the basis that its probative value outweighed its prejudicial effect. After Crown counsel repeated his concession that, if the surveillance evidence was discreditable conduct evidence, he would not lead that evidence as part of the Crown’s case in chief because r. 30 had not been complied with, the trial judge ruled the surveillance evidence inadmissible.

D. Treatment of the Cash Seizure evidence at trial

22In the course of the trial, evidence was led about both cash seizures. Photos of the Eastcourt Drive and Moy Avenue cash seizures were entered as separate exhibits.

23Although the trial judge had ruled the evidence of the cash seizures from both addresses admissible, and the evidence went in without objection, during the pre-charge conference, defence counsel asserted that none of the cash seizure evidence (including the cash seized from the appellant on his arrest) should be considered by the jury. Crown counsel objected to the apparent attempt to have the judge revisit her earlier ruling, and to the trial judge’s use of the word “tenuous” in her draft charge, when describing the appellant’s link to the cash seized from the Moy Avenue address. Ultimately, the trial judge accepted the defence argument, but only in respect of the Moy Avenue seizure, and she revised her draft charge accordingly.

24The trial judge instructed the jury in relation to the cash seizure evidence as follows:

You have heard evidence of monies Mr. Jahangiri had on his person. Monies found in a safe at his residence on Eastcourt Drive. And monies found in a safe at his parents’ residence on Moy Avenue. The evidence linking Mr. Jahangiri to the monies at Moy Avenue is tenuous. It was found at the residence of his parents in a safe, and the only connection is the proximity to Mr. Jahangiri’s passport. Therefore you should not consider these monies in your deliberations.

The monies on his person and at his residence are pieces of circumstantial evidence only. You must not use this evidence to conclude that Mr. Jahangiri is involved in criminal activity and is the type of person to commit the crime with which he is charged. A propensity to commit a criminal act is not a proper consideration in this case. You must not consider any such propensity to decide that the Crown has proven Mr. Jahangiri’s guilt beyond a reasonable doubt.

E. Issues

25The appellant raises the following issues on appeal:

1. Did the trial judge err in admitting the evidence of the cash seized from the Eastcourt Drive address because it was discreditable conduct evidence and the Crown had failed to comply with the Criminal Proceedings Rules before seeking its admission?
2. Did the trial judge provide a confusing instruction to the jury with respect to the cash seizures?
3. Was the verdict unreasonable?

F. Discussion

(1) Issue One: The evidence of the cash seized from the Eastcourt Drive address was not discreditable conduct evidence

26I begin by noting that the Crown conceded at trial that if the trial judge found the cash seizures fell within r. 30, then the seizures were not to be admitted. The Crown does not step back from this concession on appeal. Accordingly, it was unnecessary for the trial judge, after concluding that the cash seizure evidence was not presumptively inadmissible discreditable conduct evidence, to determine whether the evidence should be admitted because its probative value outweighed its prejudicial effect. At trial and on appeal, the relevant issue was and is the threshold issue: does the cash seizure evidence constitute discreditable conduct evidence?

27The appellant contends that the cash seizure evidence was discreditable conduct evidence because it invited the jury to engage in propensity reasoning. In the appellant’s view, the purpose of the cash seizure evidence was to demonstrate that the appellant was a drug trafficker, and thus to invite the jury to conclude that, because he was a drug trafficker, which the appellant characterizes as a profession of disreputable conduct, it was more likely that he possessed the cocaine at issue. The appellant relies on R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), leave to appeal refused, [1997] S.C.C.A. No. 524, where Charron J.A. (as she then was) stated: “It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through [the] evidence of discreditable conduct, which is prohibited”: at para. 46.

28The Crown asserts that the cash seizures were not evidence of discreditable conduct. On the voir dire, the Crown submitted that the cash seizures were relevant to the issue of possession because it was the appellant’s “working capital”. The Crown’s position is that the cash was contemporaneous circumstantial evidence from which the jury could infer that the appellant was a participant in cocaine distribution. When assessing whether the Crown has proven an intention to traffic, the trier of fact can take into account any unexplained wealth, associations with known drug traffickers, the quantity and value of the drugs involved, and any money or drug paraphernalia that was found. Moreover, the evidence suggested that the appellant had ready access to the cash necessary to fund the purchase of the subject cocaine.

29I agree with the Crown’s position and would not give effect to this ground of appeal.

30Evidence that takes its probative effect from propensity reasoning is presumptively inadmissible, although relevant. The presumption is rebutted when the Crown, on a balance of probabilities, proves that the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

31Doherty J.A. explained in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), that propensity reasoning involves two inferences: first, one infers from conduct on occasions other than the occasion in issue, that a person has a certain disposition; and second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: “Viewed in this way, the evidence of the accused’s discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion”: at para. 97.

32The reasons for exclusion of discreditable conduct evidence were described by Doherty J.A. in Batte, at paras. 99 and 100, as follows:

Even where the discreditable conduct is such as to reasonably permit the inferences necessary to give propensity reasoning probative value, that evidence can still be misused by the jury. Often, evidence which can support propensity reasoning will have a much greater potential to improperly prejudice the jury against the accused. As Sopinka J. observed in R. v. D.(L.E.), 1989 SCC 74, [1989] 2 S.C.R. 111 at 127-28, a jury may assume from the evidence of discreditable conduct that the accused is a bad person and convict on that basis, or they may convict in order to punish the accused for the discreditable conduct, or they may become embroiled in a determination of whether the accused committed the alleged discreditable acts and lose sight of the real question – did he commit the acts alleged in the indictment?...

Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is….

33In R. v. B.(L.), Charron J.A. referred to the “forbidden line of reasoning” in respect of discreditable conduct evidence as “that which leads to the conclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is ‘a bad person’ who would have a tendency to commit this offence”: at para. 48. She stated, at para. 43, that the relevance of this kind of evidence “usually depends on the proposition that persons tend to act consistently with their character, or, in other words, that persons have the propensity to act in the manner in which they have acted previously. This underlying proposition is all about propensity” (emphasis added).

34Contrary to the appellant’s submission, the probative force of the cash seizure evidence did not depend on propensity reasoning, and therefore cannot be properly considered discreditable conduct evidence.

35In a recent decision, R. v. Baksh, 2022 ONCA 481, this court was dealing with what was alleged to have been cross-count similar act evidence in a drug trafficking case where the only issue was the identity of the trafficker. The appellant argued that the trial judge was not permitted to rely on similar act evidence – evidence by an undercover officer that he had purchased cocaine from the same person on all four occasions − without first conducting an inquiry pursuant to r. 30 of the Criminal Proceedings Rules. At para. 23, Favreau J.A. identified as the “threshold issue”, whether the evidence the trial judge relied on across the four drug trafficking counts was properly characterized as similar act evidence (and therefore presumptively inadmissible). In concluding that it was not, she observed that, while the trial judge relied on some of the same evidence across the different counts, “he did not do so for the purpose of embarking on impermissible propensity reasoning … that, because the appellant was the drug trafficker on one occasion, he was more likely to be the drug trafficker on other occasions”: at para. 24. She explained at para. 26:

Not all instances of reliance on evidence across counts amounts to impermissible similar act evidence or evidence that raises a risk of propensity reasoning: see e.g., R. v. Settle, 2021 ABCA 221, at paras. 34-36; R. v. Giesbrecht, 2019 MBCA 35, 373 C.C.C. (3d) 70, at paras. 73-77. Whether the evidence is properly characterized as similar act evidence depends on the use to which the evidence is put: see e.g. R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, at paras. 29, 33; R. v. deKock, 2009 ABCA 225, 454 A.R. 102, at para. 36.

36Similarly, the presence of a large quantity of cash in a safe in the appellant’s bedroom – from which it could be concluded that he was, at the time, a drug trafficker − was not presumptively inadmissible discreditable conduct evidence. It was not evidence that was put to the jury for the purpose of inviting them to reason that because the appellant had trafficked drugs in the past, he was likely to have possessed the drugs at issue. The probative value of this evidence did not rely on propensity reasoning. The cash seizure evidence was circumstantial evidence consistent with the appellant being a drug trafficker at the time and was evidence that he had ready access to the cash that was necessary to purchase the cocaine in question. As this court noted in R. v. Duvivier, 2010 ONCA 136, where money was seized from the accused at the time of his arrest, “the presence of money on the [accused’s] person was one piece of circumstantial evidence available for consideration by the jury as pointing to [his] knowledge and control of the drugs”: at para. 8.

37Indeed, the appellant’s counsel acknowledged that “tools of the trade”, such as scales, multiple cell phones and the like, whether found on the appellant’s person or in his home, as well as cash on his person, would not have been presumptively inadmissible discreditable conduct evidence, even though they could also be used for the inference that the appellant was a drug trafficker and therefore in possession of the drugs at issue. Instead, counsel asserted that the cash seizure in this case was inadmissible because it was “more remote”, presumably because the cash was located in a physically more distant place − the appellant’s home.

38Contrary to counsel’s submission, while the physical proximity of such evidence may go to its relevance and materiality (in this case the trial judge removed from consideration by the jury the cash at Moy Avenue on the basis that it had a “tenuous” connection to the appellant), the question is whether evidence - be it money or tools of the trade found on the accused, at his home or at some other location over which he had control - gives rise to an inference that, at the material time, he was a drug trafficker. In each case the purpose of the evidence is not to invite propensity reasoning. It is circumstantial evidence from which it can be inferred that, at the time of the offence, the appellant was a drug trafficker who had possession of the drugs at issue.

39I turn to the appellant’s argument based on the Supreme Court decision in R. v. Lepage, 1995 SCC 123, [1995] 1 S.C.R 654. The appellant contends that his case is indistinguishable from Lepage where the court accepted that evidence that the respondent was a drug dealer was presumptively inadmissible discreditable conduct evidence and admitted the evidence only after concluding that its probative value outweighed its prejudicial effect.

40In Lepage, the issue was whether the respondent possessed drugs that were found in a house he occupied with two others. The court concluded that one of the other occupants’ testimony that he knew the drugs belonged to the respondent because the respondent was a drug dealer was relevant to the question of possession, and that it was not “adduced solely for the purpose of showing that the respondent [was] likely to have committed the crime because he is the type of person who would be likely to possess drugs”: at para. 37. Sopinka J., writing for the majority, concluded that, provided the use of the evidence was limited to prove the respondent’s ownership of the drugs, its probative value overbore its prejudicial effect: at para. 38.

41The appellant says that the impugned evidence here was discreditable conduct evidence analogous to the evidence at issue in Lepage whose admissibility fell to be determined after weighing its prejudicial effect against its probative value. In this case, however, the appellant notes that there was no ability to seek its admission after a weighing of its prejudicial effect against its probative value. This is because the Crown conceded at trial that, if the impugned evidence was found to be discreditable conduct evidence, a failure to bring a timely r. 30 application rendered the evidence inadmissible.

42The appellant’s reliance on Lepage is misplaced. In Lepage, the evidence in question was the testimony of a housemate, who testified that he knew the respondent to be a drug dealer because he lived with him, he saw drugs around, and he knew who the respondent associated with: see para. 33. The probative force of the evidence depended on propensity reasoning: the Crown relied on evidence of the respondent’s prior conduct consistent with drug dealing to prove that the respondent possessed the subject drugs at the time of the offence.

43Here, by contrast, the evidence relied on by the Crown is cash from a safe in the appellant’s bedroom seized during a search conducted on the day of his arrest. Its probative value does not depend on propensity reasoning: that because the appellant possessed a significant amount of cash, he had dealt drugs in the past and was therefore likely to be in possession of the drugs for the purpose of trafficking as charged. This was contemporaneous circumstantial evidence consistent with the appellant being a drug trafficker at the relevant time, that was available to be considered together with all the other evidence in determining whether he had possession of the drugs at issue.

44Finally, and contrary to the appellant’s submission, the trial judge’s instruction to avoid propensity reasoning does not itself confirm that this was inadmissible prior discreditable conduct evidence. Where there is a risk of misuse of evidence by a trier of fact, such an instruction is appropriate. The trial judge properly instructed the jury to consider the monies on the appellant’s person and at his residence as “pieces of circumstantial evidence only”, and she cautioned the jury against improper propensity reasoning in respect of this evidence: “You must not use this evidence to conclude that Mr. Jahangiri is involved in criminal activity and is the type of person to commit the crime with which he is charged. A propensity to commit a criminal act is not a proper consideration in this case. You must not consider any such propensity to decide that the Crown has proven Mr. Jahangiri’s guilt beyond a reasonable doubt.”

(2) Issue Two: The charge to the jury reveals no error

45The appellant contends that the trial judge failed to properly equip the jury with how to assess the cash seizure evidence, and would have left them in confusion, when, “out of the blue”, and after she had reviewed and told them to consider all of the evidence, she instructed them to “not consider” the Moy Avenue cash seizure. The appellant also contends that it was not enough for the trial judge to caution the jury not to infer propensity with respect to the Eastcourt Drive seizure without articulating how the evidence could properly be used. In the appellant’s view, the potential prejudicial effect of this evidence was significant.

46I agree with the Crown that there was no error in the trial judge’s charge on the jury’s use of the cash seizure evidence. The trial judge, after hearing the submissions on her charge, agreed in part with the appellant’s counsel. She instructed the jury that they should not consider the cash that was seized from the Moy Avenue address, after explaining that the evidence linking the appellant to that money was tenuous, and that the only connection was the proximity to his passport. While that evidence was referred to earlier in the charge, this was a clear direction to the jury that was not undermined by what had come before. As the court stated in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 29, “[a] limiting instruction will be necessary when, at the end of all the evidence and for the purposes of the charge to the jury, certain evidence that appeared unobjectionable when it was admitted should in fact be removed from the jury with respect to one or more of the issues in the case”.

47As for the rest of the trial judge’s instruction on the cash seized from the appellant’s person and his home, the jury was properly and specifically cautioned not to reason that the appellant was involved in criminal activity or is the type of person who would commit this crime. The jury had a single issue to determine – whether the appellant was in possession of the cocaine in the hut. In the circumstances it was sufficient to instruct the jury that the monies on the appellant’s person and at his residence were “pieces of circumstantial evidence only”, and then to caution them as to its prohibited use. I am not persuaded that this would have confused or misled the jury in its treatment of this part of the circumstantial evidence.

(3) Issue Three: The verdict was reasonable

48The test for unreasonable verdict is whether, on all the evidence, the verdict is one that “a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Corbett, 1973 SCC 199, [1975] 2 S.C.R. 275, at p. 282. In determining what verdict a reasonable jury, properly instructed, could judicially have rendered, “the court must review, analyze, and, within the limits of appellate disadvantage, weigh the evidence”: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 74. It is not the role of the court on an unreasonable verdict appeal to retry the case or in effect to act as a 13th juror; rather, the question is whether the verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding, when applied to the evidence as a whole, precludes the jury’s verdict: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478, at para. 163.

49To succeed on this ground of appeal, the appellant must establish that, based on the entirety of the evidence, no properly instructed jury, acting judicially, could reasonably have found that the appellant’s guilt had been established.

50The appellant contends that the Crown’s case against him was weak and purely circumstantial. It depended on the jury’s acceptance that he was the person who repackaged the cocaine and hid it in the pick-up truck in the hut. It was, however, unclear what the appellant did in the hut two hours after Mr. Scollon entered it with the cocaine. There were no traces of cocaine residue in the hut to support the Crown’s allegation that the appellant cut and repackaged the cocaine there, and nothing in the hut for cooking the crack cocaine that was found on the appellant. Mr. Scollon accepted his culpability by pleading guilty, and he made no attempt in his testimony to explain away his conduct. The appellant submits that the jury's verdict was unreasonable because no reasonable jury, acting judicially, would have concluded that the only reasonable inference from the circumstantial evidence was that the appellant had possession of the cocaine in the hut.

51I disagree. There was ample evidence from which a jury, acting judicially, could have reasonably concluded that the appellant was guilty of possessing for the purpose of trafficking, the cocaine that was found in the hut. Mr. Scollon went to the hut from the train station, carrying a backpack, and remained there for approximately 15 minutes. He went to the Eastcourt Drive residence, from which the appellant left after 2 a.m. The appellant drove to the same hut, which he entered with a duffel bag, and he remained there for more than an hour. When he left, he was carrying the duffel bag that contained materials for cocaine packaging, two different size boxes of Ziploc bags, a container of baking soda, a scale with cocaine residue, a cup and a glass, each with cocaine residue, and a Windsor Star newspaper. He was also carrying a plastic bag containing packaging with the notations “1182” and “1191” and duct tape (that Mr. Scollon identified as the original wrappings for the bricks of cocaine). The appellant had rubber gloves in his pockets with cocaine residue. Concealed in a locked truck in the Quonset hut were several bags of cocaine packaged for individual sale, one of which was also wrapped in a newspaper clipping, that was identified as being from the same newspaper issue seized from the appellant’s duffel bag. There was 2,066.8 grams of cocaine in the truck, and expert evidence that one kilogram was valued at between $40,000 and $60,000.

52From its verdict, the jury necessarily rejected Mr. Scollon’s evidence that he had repackaged the bricks of cocaine before arriving at the hut: It was implausible that Mr. Scollon would have taken all of the repackaging materials and tools, together with $90,000 in cash in his backpack to Toronto, and that he would have brought back all the waste packaging materials and tools to Windsor, and then left them in the hut for the appellant to retrieve in the middle of the night. Moreover, the newspaper clipping in which one package of cocaine was wrapped matched the issue that was seized from the appellant’s duffel bag. I agree with the Crown that it was open for the jury to reject Mr. Scollon’s evidence and to conclude that the only possible reason anyone would attend a remote industrial unit in the middle of the night and be that closely connected to a quantity of cocaine worth tens of thousands of dollars was because he was involved with it. The cumulative effect of all the evidence meant the finding of guilt was one that a properly instructed jury could have reached.

G. Disposition

53For these reasons I would dismiss the appeal.