COURT OF APPEAL FOR ONTARIO
Miller, Paciocco and George JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Justin Brennan
Appellant
Hanna Colbert, for the appellant
Genevieve McInnes and Jay Pelletier, for the respondent
Heard: June 18, 2026
On appeal from the convictions entered by Justice J. Peter Wright of the Ontario Court of Justice on December 20, 2023.
REASONS FOR DECISION
1The appellant appealed his convictions for possession of various controlled substances for the purposes of trafficking. For the reasons that follow, the appeal is allowed and an acquittal entered.
Factual overview
2Police on patrol in downtown Ottawa saw an idling vehicle parked in front of a community housing development, in a spot reserved for staff. They approached the appellant, who was seated in the driver’s seat, as part of a trespass investigation. After speaking with the appellant, they determined that he was in violation of his house arrest conditions under a Conditional Sentence Order. He was arrested for failure to comply with his probation. The other occupant of the vehicle, Mr. Osborne, was permitted to leave.
3The appellant was not the registered owner of the vehicle and as the registered owner was not present, the police determined that it would have to be towed. They conducted an inventory search prior to towing. The search produced a hatchet wedged between the driver’s seat and the centre console, a digital scale in the centre console, and two backpacks on the rear seat. One of the backpacks contained crack and powdered cocaine, fentanyl, other controlled substances, as well as drug paraphernalia including a bong and pipe.
4The appellant was arrested for possession for the purpose of trafficking. Mr. Osborne, who had already left, was arrested on a later date.
Issues on appeal
5The appellant raised three grounds of appeal:
(1) The trial judge provided insufficient reasons;
(2) The trial judge misapplied the burden of proof and failed to follow Villaroman in a circumstantial case; and
(3) The trial judge erred in refusing a Pollock application to admit the co-accused’s criminal record into evidence.
Analysis
6As explained below, we are persuaded that the trial judge erred in his analysis pursuant to the framework set out in R. v. Villaroman, 2016 SCC 33 and the appeal must be allowed on that basis. Accordingly, it is not necessary to address the other two grounds of appeal.
7The case against the appellant was circumstantial. In a case where the Crown relies on circumstantial evidence to establish constructive possession of controlled substances, there can be a conviction only if the accused’s knowledge and control of the substances is the only reasonable inference on the facts. The trier of fact “must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense”: R. v. Choudhury, 2021 ONCA 560, at para. 19; see also R. v. Villaroman, 2016 SCC 33, at paras. 55-56.
8In this case, the trial judge correctly observed that knowledge and control of the drugs could not be inferred from the lone fact that the appellant was in control of the vehicle in which the drugs were located. He based his finding of guilt on control of the vehicle and three additional factors: (1) weapons are a tool of drug trafficking and a hatchet was found wedged between the driver’s seat and the centre console; (2) scales are similarly a tool of drug trafficking and scales were located in the centre console; (3) a significant quantity of drugs were found in the vehicle.
9The trial judge concluded that it was “a reasonable inference” from these facts that both the appellant and his co-accused would have known that one of the backpacks contained drugs and that “[t]he evidence in totality” supported “a logical inference of both knowledge and joint control of possession.”
10The standard of proof beyond a reasonable doubt required that the trial judge be satisfied that there were no other plausible theories consistent with the evidence as a whole that were inconsistent with the guilt of the appellant. A person cannot be convicted on “a reasonable inference” where there are one or more reasonable inferences inconsistent with guilt. The problem in this case is that the appellant advanced a plausible theory inconsistent with guilt that the evidence cannot overcome: that Mr Osborne possessed the drugs alone.
11Even in isolation, the evidence relied upon by the trial judge does not support a compelling inference that the appellant knew the drugs were in the vehicle. The appellant’s control of the vehicle was not a strong indication of knowledge given that all the drugs were in a backpack within the vehicle rather than directly in the vehicle itself. Indeed, the appellant did not own or rent the vehicle. The only evidence of the circumstances of his control of the vehicle was that he was seated in the driver’s seat while the vehicle was parked and the engine was idling. It was not known whether he had driven the vehicle to that location or how long he had been in the vehicle. This further weakened an inference from his control of the vehicle that he could be taken to know its contents. Given the challenges in inferring the appellant’s knowledge of the contents of the car without greater clarity as to the nature of his control over the vehicle, the location of the scales inside the console is not strong evidence of his knowledge of the link between the vehicle and drug activity. Although a hatchet, as a weapon, can be a tool of the drug trade, it is not unequivocally so. The fact it was in plain view and near the appellant is not compelling evidence of his knowledge of the drugs. And the significant quantity of the drugs is not an indicium of the appellant’s knowledge since there was no evidence that the drugs were put under his effective control. They were located in a personal container – a backpack – the contents of which were linked to Mr. Osborne by DNA evidence. Mr. Osborne was present in the vehicle and the backpack was on the seat behind him.
12The trial judge did not adequately heed the location of the drugs in a backpack, where they were not open to view, and the link of the backpack to Mr. Osborne. Critically, there was no evidence of the appellant’s involvement in any conduct indicative of drug trafficking or in engaging with the backpack in any way. The fact that Mr. Osborne left the backpack behind when he was told he could go – a factor relied upon by the Crown before us – was equally consistent with Mr. Obsorne trying to manage the risk of arrest by leaving the drugs behind when he left.
13The only reasonable conclusion is that the totality of the evidence was equally consistent with sole possession by Mr. Osborne. Accordingly, it was an error to find that the case against the appellant had been proved beyond a reasonable doubt.
14In light of the equivocal nature of the circumstantial evidence and the gaps in the evidence, the convictions were unreasonable, and it is appropriate for this court to set them aside under s. 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46.
DISPOSITION
15The appeal is allowed, the convictions set aside, and an acquittal entered.
“B.W. Miller J.A.”
“David M. Paciocco J.A.”
“J. George J.A.”