COURT OF APPEAL FOR ONTARIO
Paciocco, Sossin and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Prajaphan Sivasothy
Appellant
Counsel:
Anil K. Kapoor and Shirin Mollayeva, for the appellant
Jason Mitschele and Diana Lumba, for the respondent
Heard: May 13, 2026
On appeal from the conviction entered by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, on January 31, 2024.
REASONS FOR DECISION
I. overview
1The appellant, Prajaphan Sivasothy, appeals his conviction for possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The appellant argues that the verdict was unreasonable and, in the alternative, that the jury charge on circumstantial evidence was deficient.
2We did not call on the Crown to respond to the unreasonable verdict ground of appeal and dismissed the appeal on the remaining ground of appeal at the close of the hearing for reasons to follow.
3These are our reasons.
II. background
4On the night of August 11-12, 2020, the appellant and two other men, Sangaman Thevathasan and Vithurshan Suthakar, went to a Toronto bar. The appellant drove to the bar in a Jeep Grand Cherokee (the “vehicle”). The appellant had rented the vehicle about five days earlier from a Toronto Pearson Airport rental counter and it was due to be returned two days later. The appellant then drove the other two men to another bar where they stayed into the early morning hours of August 12, 2020.
5After leaving the second bar, one of the appellant’s companions, Mr. Thevathasan, drove the vehicle to a nearby parking lot. However, once parked, the appellant advised the men that he was able to drive and resumed doing so. The appellant later stopped the vehicle on a side street and began chatting with people on the street. His companions testified that they came to believe they were in danger. The companion in the front seat, Mr. Thevathasan, moved to the driver’s side. Mr. Thevathasan drove the vehicle away from the appellant while Mr. Suthakar called 9-1-1 and alerted them to some kind of robbery or kidnapping in progress. The appellant made his way home without the other two men or the vehicle.
6Police responded to the frantic call and eventually located the vehicle and the two companions. The police constable on scene’s reason for entering the vehicle was to retrieve the appellant’s wallet to verify his identity. In doing so, the constable observed and seized 127.13 grams of cocaine, along with the wallet. The cocaine was located in a plastic bag within a compartment of the driver’s door.
7Police seized the vehicle, towed it to the police facility, and, on August 20, 2020, searched the vehicle. The police located 55.78 grams of fentanyl in a plastic bag stored in a paper bag within the vehicle’s spare tire compartment located in the trunk. The police also found a car rental agreement in the centre console area with the appellant’s fingerprints on it. The police forensic analysis of the bags containing the cocaine and the fentanyl did not yield any fingerprints suitable for comparison. The police did not fingerprint the exterior or the interior of the vehicle and also did not submit any of the bags containing the cocaine or fentanyl for DNA testing.
8The quantities of the cocaine and fentanyl seized from the vehicle were consistent with quantities for trafficking rather than for personal consumption. The estimated street level value of the drugs was over $20,000, approximately $10,000 each.
9At trial, both Mr. Thevathasan and Mr. Suthakar denied consuming any drugs that night or knowing that there were drugs in the car. Mr. Thevathasan also testified that at one point, two or three people entered the car during the period in which the appellant had stopped to talk with people on the street.
III. Decision below
10The jury acquitted the appellant of possession of cocaine for the purpose of trafficking but found him guilty of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
11The Crown’s theory of the case was that the only reasonable inference available from the totality of the evidence was that the appellant had knowledge and control, and was thereby in possession, of the cocaine and the fentanyl found in the vehicle.
12The defence’s position was that the only correct verdict in the case was an acquittal on all counts because it was plausible that the drugs belonged to Mr. Thevathasan or Mr. Suthakar and the appellant was unaware that they had the drugs.
IV. GROUNDS OF APPEAL
13The appellant raises the following grounds of appeal:
(1) The verdict of guilt for possession of fentanyl for the purpose of trafficking was unreasonable; and
(2) The trial judge erred in his charge as follows:
(a) failing to direct the jury to consider the absence of evidence when assessing the circumstantial evidence in this case;
(b) failing to provide examples of the absence of evidence when directing the jury to consider whether the appellant had control of the fentanyl; and
(c) in instructing the jury that the evidence relied upon to establish possession was probative of the issue of knowledge, without providing guidance on how the facts relevant to possession can assist in deciding knowledge, a different legal question.
V. Analysis
The verdict was not unreasonable
14Under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, to succeed on this ground of appeal, the appellant must establish that no properly instructed jury, acting judicially, could reasonably have found him guilty. When the evidence is wholly or substantially circumstantial, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
15The appellant argues that the verdict was unreasonable because nothing tied the appellant to the fentanyl found in the trunk beyond the fact that he was the person who rented the vehicle. According to the appellant, tenancy or occupation of a place where a substance is found does not create a presumption of possession much less of knowledge, and conflating access and ownership with possession and knowledge is an error: R. v. Choudhury, 2021 ONCA 560, at para. 19.
16The Crown argues that constructive possession was available on this record and therefore the jury’s verdict was not unreasonable.
17Constructive possession is established when an accused does not have physical custody of the thing in question but has it in any place for their own or another person’s use or benefit: Criminal Code, s. 4(3)(a)(ii). Therefore, constructive possession may be found where an accused (i) has knowledge of the character of the thing; (ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and (iii) intends to have the thing in the place for the use or benefit of the accused or of another person: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
18While the appellant is correct that mere tenancy or occupancy of a place where an object is found does not create a presumption of possession, the control that tenancy or occupancy provides may, along with other evidence, support an inference of possession. In the jury charge relating to possession in this case, the trial judge noted the circumstances related to appellant’s rental of the vehicle supported inferences that he controlled the vehicle and its contents. Those contextual circumstances included:
- The Hertz rental contract in the vehicle names the appellant as the renter of the vehicle and did not name any other renter or authorized driver;
- The wallet in the console area contained the appellant’s driver’s licence. A handicap parking permit in the appellant’s name was also found in the vehicle;
- Based on the photographs of the vehicle when it was searched, the jury could consider whether anyone else may have driven the vehicle before the night in question; and
- According to Mr. Thevathasan’s evidence, the appellant drove the vehicle to the first bar to meet Mr. Thevathasan and Mr. Suthakar, and the appellant drove to the second bar afterwards.
19We would add that after Mr. Thevathasan drove the vehicle, the appellant determined that he would drive from there, thereby asserting his control over the vehicle.
20Further, the 55.78 grams of fentanyl seized had a street value of approximately $10,000. The value of drugs also can support a commonsense inference of knowledge and control: R. v. Chiarelli, 2025 ONCA 428, 178 O.R. (3d) 641, at para. 55.
21It can be seen that by the time of the vehicle’s seizure, the appellant had rented the car for five days. Apart from the brief interludes when Mr. Thevathasan drove the car on the evening of the incident before the appellant resumed driving, there was no evidence that anyone but the appellant had driven the car over this period. This goes beyond mere access to a location, as was the case in Choudhury: at paras. 23-27.
22The location of the fentanyl was also significant. It was not kept in the seating area of the vehicle where Mr. Thevathasan, and Mr. Suthakar were known to have been, but it was deposited in the wheel well, an area under the dominion of the appellant as the renter. It is unlikely as a matter of human experience that someone previously in control of the rental vehicle would have left their drugs in the vehicle. The likelihood is that the appellant put them there.
23All of these contextual factors, taken together, provide the evidentiary foundation for a reasonable inference that the appellant, and no-one else, had constructive possession of the fentanyl.
24For these reasons, in our view, the verdict cannot be said to be unreasonable.
The jury charge did not fail to deal with the absence of evidence
25It is well-settled that an accused is entitled to a jury that is properly, not perfectly, instructed: R. v. Goforth, 2022 SCC 25, [2022] 1 S.C.R. 715, at para. 3. When reviewing a jury charge, an appellate court must take a functional approach by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole: Goforth, at para. 21. The overriding question is whether the jury was “properly equipped” with an accurate and sufficient understanding of the law to apply to the evidence: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at para. 35.
26In oral argument, the appellant reframed the three issues relating to the jury charge that we identify in paragraph 13 above, and advanced two submissions: (1) the trial judge failed to properly instruct the jury to consider the absence of evidence in the circumstantial evidence portion of the charge; (2) the trial judge failed to provide examples of the gaps in the evidence on both the issues of control and knowledge.
27We do not accept that the trial judge’s charge reveals any reversible error. We address both of the arguments together and make the following four observations.
28First, the jury was alive to the fact that the absence of evidence generally could be a basis for reasonable doubt. The trial judge first instructed the jury that “the absence of evidence may be a factor in [their] deliberations where a reasonable doubt arises about an essential element of a charged offence that the evidence before [them] does not address to [their] satisfaction.” He further advised the jury that a reasonable doubt is one “that arises logically from the evidence or from an absence of evidence”. He referenced a reasonable doubt arising from the evidence or absence of evidence on four other occasions in the portion of the instructions explaining the meaning of “beyond a reasonable doubt”. The evidence in the case was almost exclusively circumstantial. Jurors would have understood that the repeated instruction that the absence of evidence was to be considered in assessing reasonable doubt, and they would have appreciated that the instruction applied to circumstantial evidence.
29Second, the charge on the circumstantial evidence captured the key concerns of Villaroman. The trial judge told the jury that “[w]here [they] find that the proof of one or more essential elements relies entirely or significantly upon circumstantial evidence, [they] must take care to ensure that guilt is the only reasonable inference that can be drawn from the evidence viewed as a whole.” He further instructed them that if “the evidence as a whole permits one or more reasonable inferences to be drawn with respect to one or more essential elements of [the] offence which are not consistent with… guilt, then the Crown will have failed to satisfy [them] beyond a reasonable doubt as to the guilt of the [appellant] of that offence.”
30Read in the context of the charge as a whole, and viewed functionally, we do not see an error with the trial judge not specifically referencing the absence of evidence when explaining the Villaroman principles.
31In R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at paras. 29-30, 47-51, Watt J.A. addressed a charge similar to the one in this case. The appellant in that case argued that, when instructing the jury on the application of reasonable doubt to inferences of guilt based on circumstantial evidence, it had to be made clear to the jury in the final instructions that the availability of an inference inconsistent with guilt could arise from an absence of evidence. Watt J.A. concluded that he was satisfied that, despite the absence of an express instruction, read as a whole, the charge adequately apprised the jury of the standard of proof in a case dependent entirely on circumstantial evidence: Megill, at para. 47. In particular, he noted that the trial judge had reminded the jury in the section about the standard of proof that reasonable doubt could arise both from evidence and the absence of evidence: Megill, at para. 49. In our view, a similar analysis applies in this case.
32This case may be distinguished from R. v. Bruzzese, 2023 ONCA 300, 167 O.R. (3d) 81, where this court found the trial judge had effectively removed the absence of evidence as a path to reasonable doubt from the jury’s consideration: at para. 23. One of the trial judge’s instructions to the jury implied that they were only to draw inferences giving rise to a reasonable doubt from facts that were in evidence but not from the absence of a certain piece of forensic evidence, which was a key aspect of the defence: Bruzzese, at para. 21. We are not persuaded that this occurred here.
33Third, the appellant points to the inclusion of language regarding the absence of evidence in David Watt, Watt’s Manual of Criminal Jury Instructions, (Toronto: Thomson Reuters, 2024), at p. 247 (Final 18), on the issue of circumstantial evidence. We note that the language referred to by the appellant comes not in the model charge but rather in the “Notes on Use” section of the Manual. More importantly, the Supreme Court has made clear that failing to follow any particular manual does not constitute an error: Abdullahi, at para. 55.
34Finally, we observe that experienced trial counsel raised no concern with this section of charge, although concerns were raised with respect to other aspects of the charge, which were accommodated by the trial judge. Given the charge as a whole, this is an appropriate case for inferring that counsel did not object because they recognized that the charge was sufficient.
35In this case, the trial judge’s charge reflected the way the case was presented by counsel. The defence theory of the case was not premised on the absence of evidence tying the appellant to the fentanyl (beyond the lack of forensic evidence linking the drugs directly to the appellant) but rather the presence of evidence pointing to the involvement of the other passengers.
36While we acknowledge it is generally helpful for trial judges to be explicit about the possibility that the absence of evidence could give rise to a reasonable doubt specifically in relation to circumstantial evidence, the failure to do so in this case did not amount to a reversible error.
VI. DISPOSITION
37For these reasons, we dismissed the appeal.
“David M. Paciocco J.A.”
“L. Sossin J.A.”
“L. Madsen J.A.”