COURT OF APPEAL FOR ONTARIO
Zarnett, Favreau and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Richard Gurhan
Appellant
Chris Rudnicki, for the appellant
Bryan Guertin, for the respondent
Heard: June 2, 2026
On appeal from the convictions entered by Justice W. Danial Newton of the Superior Court of Justice on June 7, 2024, with reasons reported at 2024 ONSC 3249.
REASONS FOR DECISION
1The police executed a search warrant at a residence in Thunder Bay and on a vehicle located in front of the residence. The police found $8,455 in cash and two bottles of Percocet pills[1] in a room in the residence. They found powdered cocaine, crack cocaine and a loaded firearm in the vehicle. The appellant, Richard Gurhan, was one of four men who was in the room where the cash and Percocet pills were found. He also had the keys to the vehicle in his pocket.
2Mr. Gurhan was convicted of possession of the proceeds of crime over $5,000, possession of oxycodone, possession of cocaine for the purpose of trafficking and several offences related to the possession of the firearm.
3The appellant raises two grounds of appeal: (1) the verdict was unreasonable; and (2) the trial judge misapprehended the evidence.
4We have concluded that the appeal should be allowed in relation to the convictions arising from the items found in the residence and that the appeal should otherwise be dismissed.
Background
5The police received information that a residence located at 938 Crawford Place in Thunder Bay was being used to traffic and stash drugs.
6On November 10, 2021, the police conducted surveillance of the residence. This included placing a surveillance camera facing the front of the residence and the driveway. The police also conducted surveillance on a vehicle, a Hyundai Kona, parked in front of the house.
7In the afternoon of November 10, 2021, the police observed three men exit the back of the residence and get in the vehicle. Mr. Gurhan was one of them. He held the keys to the car and drove it to a housing complex. The police followed and observed the three men, including the appellant, get out of the car and go into a building for approximately five minutes, after which they returned to the car.
8On November 10, 2021, the police observed approximately 8 to 12 people enter the back of the residence and exit shortly after. The police identified this pattern of quick entry and exit as likely drug transactions.
9The police observed two other occasions the following day when someone came out of the residence and drove the vehicle. The police witnesses did not identify the driver, but the Crown’s position at trial was that it was the appellant.
10Based on their investigation, the police obtained a search warrant for the residence and the vehicle.
11The police executed the search warrant on the evening of November 11, 2021. They entered the residence through the back door, as the front door was barricaded, and found four men in a room at the back of the residence. Mr. Gurhan and Hassan Ali were amongst the four men.
12The police searched Mr. Gurhan incident to arrest and found the keys to the vehicle in his pocket, as well as his driver’s license. The police also searched Mr. Ali incident to arrest. In Mr. Ali’s pockets, they found a white rock-like substance believed to be crack cocaine, a small bag of Percocet pills and some cash.
13The police searched the room where they found Mr. Gurhan, Mr. Ali and the two other men. There were several chairs and a bookshelf in the room, but no bed. The police found a digital scale with a white substance on it, several cell phones and two bottles of Percocet pills. These items were in plain view. On the floor behind a cabinet, the police also found cash totaling $8,455.
14When the police searched the car, they found a handgun, 64.55 grams of powder cocaine with an estimated value of $5,164 to $6,455, and 225.44 grams[2] of crack cocaine with an estimated value of $24,068 to $48,136. These items were located behind a panel in the console between the driver’s seat and the passenger seat. The handgun and the powder cocaine were closer to the driver’s seat. The crack cocaine was closer to the passenger seat. The police officers testified that these items were not in plain sight and that they had to pry open some paneling to find them.
15The police found several bags in the trunk of the car. One bag contained Mr. Ali’s passport and another bag contained another person’s passport. None of Mr. Gurhan’s identification was found in the car.
16The appellant was charged with the eight following criminal offences:
(1) Careless storage of a firearm, contrary to s. 86(1) of the Criminal Code;
(2) Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19;
(3) Possession of oxycodone, contrary to s. 4(1) of the Controlled Drugs and Substances Act;
(4) Possession of proceeds of crime (over $5,000), contrary to s. 354(1) (a) of the Criminal Code;
(5) Unauthorized possession of a firearm, contrary to s. 91(1) (a) of the Criminal Code;
(6) Possession of a firearm knowing its possession was unauthorized, contrary to s. 92(1) of the Criminal Code;
(7) Unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code; and
(8) Possession of a restricted firearm with ammunition, contrary to s. 95 (a) of the Criminal Code.[3]
17Fourteen police officers testified at trial. Mr. Gurhan did not testify.
18The trial judge convicted Mr. Gurhan on all counts. In his reasons, the trial judge acknowledged that the case against Mr. Gurhan was circumstantial, but he was satisfied that the only reasonable inference was that Mr. Gurhan was in constructive possession of the items found in the residence and the vehicle.
19With respect to the residence, the trial judge reasoned as follows:
Located in that room was a scale, a bundle of cash totaling $8,060, cell phones, and the oxycodone pills. There was nothing found in that room suggesting that Mr. Gurhan or the other males resided there.
The only rational inference that can be drawn from the traffic at 938 Crawford and from what was found in that room is that this location was used for drug trafficking. Mr. Gurhan was present in that room. He was not “found in”, appearing only at 938 Crawford at the time of the execution of the search warrant. He was observed there the day previously and observed travelling with Mr. Mahdi to and from Crawford Street to Windsor Street. The only rational inference that can be drawn from this circumstantial evidence is that Mr. Gurhan knew that drug trafficking was occurring at 938 Crawford. [Emphasis added.]
20The trial judge reasoned as follows in relation to the items found in the car:
I accept that no identification belonging to Mr. Gurhan was found in the Kona. His driver’s license was on his person as confirmed by the booking sheet. I also accept that no drugs, cash, or weapons were found on his person at the time of his arrest. I also accept that there is no forensic evidence linking Mr. Gurhan to the drugs or firearm found within the Kona.
However, Mr. Gurhan had care and control of the Kona on November 10, 2021. He had the keys, and he was the operator. On November 11, 2021, the keys to the Kona were in his possession.
The drugs and firearm, although not in plain sight, were located in an area most proximate to the driver, Mr. Gurhan. Having concluded that Mr. Gurhan had knowledge of the drug trafficking at 938 Crawford I conclude that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Gurhan also had knowledge and control of the drugs and firearm found within the Kona. No other “reasonable possibility” that is not speculation arises on the facts of this case. [Emphasis added.]
21The trial judge stayed all the firearm convictions, except for the conviction for possession of a restricted firearm with ammunition, pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
22The trial judge sentenced Mr. Gurhan to a total of four and a half years’ imprisonment, broken down as follows:
(a) Three years for possession of a restricted firearm with ammunition (Count 8);
(b) One and a half years consecutive for possession of cocaine for the purpose of trafficking (Count 2);
(c) Six months concurrent for possession of proceeds of crime exceeding $5,000 (Count 4); and
(d) 30 days concurrent for possession of Percocet (Count 3).
Issue 1: Was the verdict unreasonable
23The appellant submits that the verdict was unreasonable because the evidence could not support the appellant’s guilt beyond a reasonable doubt. Specifically, the appellant submits that the case was circumstantial and that there were other reasonable inferences available other than the trial judge’s conclusion that Mr. Gurhan was in constructive possession of the cash and Percocet pills found in the residence and the gun and cocaine found in the car. We agree that the verdict in relation to the items found in the residence was unreasonable. However, we are not persuaded that the convictions for the items found in the car were unreasonable.
24Section 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 gives an appellate court the power to set aside a conviction that is “unreasonable or cannot be supported by the evidence”. This requires the court to assess the totality of the evidence. A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 30. The same test applies whether the trier of fact is a judge or a jury: Biniaris, at para. 37. To decide whether a verdict was unreasonable, an appellate court must review, analyze, and, within the limits of appellate disadvantage, weigh the evidence for the purpose of determining whether the evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: Lights, at para. 30.
25When an appellant challenges a verdict as unreasonable on the basis that the trier of fact could not have reasonably rendered the guilty verdict given the evidence, an appellate court is entitled to consider that the accused did not testify or adduce other evidence at trial to support any other reasonable inference consistent with innocence: Lights, at para. 33; R. v. Daye, 2022 ONCA 675, 518 C.R.R. (2d) 63, at para. 24.
26This was a circumstantial case. Before finding Mr. Gurhan guilty of the offences with which he was charged, the trial judge had to be satisfied beyond a reasonable doubt that his guilt was the only reasonable inference to be drawn from the evidence as a whole: Lights, at para. 36; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. Circumstantial evidence does not have to totally exclude other conceivable inferences: Villaroman, at para. 56. While the Crown must negate other reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the appellant’s innocence: Villaroman, at para. 37; Lights, at para. 38.
27On appeal, absent any error, this court owes deference to a trial judge’s determination that the appellant’s guilt was the only reasonable inference to be drawn from all of the evidence: R. v. Darrington, 2025 ONCA 189, at para. 6. When the Crown’s case is circumstantial, a verdict is reasonable if the trier of fact “was entitled to find that the circumstantial evidence in light of human experience, when considered as a whole, and the absence of evidence could exclude all reasonable inferences other than guilt”: R. v. Anderson, 2020 ONCA 780, at para. 30, leave to appeal refused, [2021] S.C.C.A. No. 103. This court is to assess whether the trial judge could reasonably be satisfied that guilt was the only reasonable inference: R. v. Jeyakanthan, 2025 ONCA 608, at para. 9.
28Mr. Gurhan urges the court to approach the convictions related to the items found in the residence, namely the cash and the Percocet pills, separately from the items found in the car, namely the gun and the cocaine. We agree that the convictions related to the items found in each location must be looked at separately.
29Constructive possession is established where an accused does not have physical custody of an item but has it in any place for their own or another person’s use or benefit: Lights, at para. 47; Criminal Code, s. 4(3)(a)(ii). To find that a person was in constructive possession of an item, the court must be satisfied that the person: (a) has knowledge of the character of the thing; (b) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the person; and (c) intends to have the thing in the place for the person’s use or benefit or for another person’s use or benefit: Lights, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17. Knowledge and control are essential elements of both personal and constructive possession: Morelli, at para. 15; Lights, at para. 44.
30In this case, as referred to above, when dealing with the items the police found in the residence, the trial judge concluded that “[t]he only rational inference that can be drawn from this circumstantial evidence is that Mr. Gurhan knew that drug trafficking was occurring at 938 Crawford.” He did not make a specific finding that Mr. Gurhan had knowledge and control of the cash and Percocet pills.
31Had the trial judge engaged in such an analysis, it should have been evident that Mr. Gurhan having knowledge and control of the cash and Percocet pills was not the only reasonable inference.
32First, the cash was found hidden on the floor behind a cabinet. There were four men in the room. There was nothing specifically linking Mr. Gurhan, rather than any of the other men, to the cash. There was no evidence that Mr. Gurhan knew about the cash or that he was storing it for himself or for anyone else’s use or benefit. Even if the trial judge’s inference that Mr. Gurhan knew that there was drug trafficking occurring at the residence was reasonable, which it was, this did not make the inference that Mr. Gurhan specifically had knowledge and control of the cash reasonable. The cash could have been placed behind the cabinet by one of the other men without Mr. Gurhan’s knowledge and not for his use or benefit. In the circumstances, the finding of guilt in relation to the cash was not reasonable.
33Second, there was no evidence that the Percocet pills found in the residence were for the purpose of trafficking. Rather, it was admitted that “[a]lthough there does not appear to be a valid prescription for the 64 oxycocet pills, the police expert is unable to determine whether possession was for personal use or trafficking.” Mr. Gurhan was accordingly only charged with simple possession. Given that the Percocet pills were in plain view in the apartment, it was reasonable to infer that Mr. Gurhan had knowledge of the pills. However, there were three other men in the room where the Percocet pills were found and there was nothing specific linking Mr. Gurhan to the drugs. Therefore, again, it was not reasonable to find that the only reasonable conclusion was that Mr. Gurhan had knowledge and control of the Percocet pills. They may have been in the exclusive control of one of the other men. Notably, Mr. Ali had Percocet pills in his pocket when he was searched. Mr. Gurhan’s knowledge of the Percocet pills was not sufficient for the trial judge to find that he had constructive possession of them.
34In contrast with the items found in the residence, we are satisfied that the verdict in relation to the items found in the car was reasonable. As the trial judge explained, the evidence established that Mr. Gurhan had care and control of the vehicle on November 10, 2021. He was seen driving the car on at least one occasion. He had the car keys in his pocket when the police searched him. The gun and drugs were in a console next to the driver’s seat. When the police searched the residence, the appellant was in a room with evident signs of drug trafficking, including the digital scale, which supported the trial judge’s inference that Mr. Gurhan had knowledge of drug trafficking. All of these factors in combination supported the trial judge’s conclusion that the only reasonable inference was that Mr. Gurhan had knowledge and control of the gun and cocaine found in the car. This evidence was sufficient for the trial judge to find that, cumulatively, all of the circumstantial evidence supported the conclusion that the only reasonable inference was that Mr. Gurhan had constructive possession of these items. This was a reasonable verdict.
35Mr. Gurhan submits that the verdict was not reasonable because the trial judge failed to consider other reasonable inferences. In particular, he submits that the gun and cocaine found in the car may have belonged to Mr. Ali, especially given that the police found Mr. Ali’s passport in the trunk of the car and that he had drugs in his pocket when the police searched him. It was not necessary for the trial judge to find that Mr. Gurhan had exclusive possession of the gun and the cocaine to find him guilty of possession of these items. Unlike Mr. Ali, Mr. Gurhan was seen driving the car and was in possession of the car keys. This placed him in proximity to the gun and cocaine. It also gave him control over the vehicle in which these items were found.
36Mr. Gurhan also submits that the trial judge failed to consider that there was at least a ten-hour gap in the surveillance after he was seen driving the car and before the police searched him and found the car keys. He submits that someone else could have placed the gun and cocaine in the console of the vehicle without his knowledge, and then returned the keys to him. This speculative possibility does not affect the reasonableness of the verdict.
37Accordingly, while we are persuaded that the convictions for possession of the proceeds of crime and possession of oxycodone were unreasonable, we are not persuaded that the other convictions were unreasonable.
Issue 2: Did the trial judge misapprehend the evidence?
38The appellant also claims that the trial judge misapprehended the evidence by failing to consider that Mr. Ali, and not Mr. Gurhan, could have been in possession of the items found in the vehicle.
39The failure to consider evidence relevant to a material issue can constitute a misapprehension of evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. However, the fact that the trial judge did not explicitly refer to Mr. Ali and his potential role was not a material misapprehension of the evidence in the circumstances of this case. As discussed above, even though Mr. Ali’s passport was found in the trunk of the vehicle and he had some drugs on him when he was searched, this does not detract from the strong circumstantial evidence that led to Mr. Gurhan’s conviction in respect of the items found in the car.
Disposition
40The appeal is allowed with respect to the convictions for possession of oxycodone (Count 3) and possession of proceeds of crime exceeding $5,000 (Count 4). Acquittals are substituted on these counts.
41The appeal is otherwise dismissed.[4] The sentence appeal is dismissed as abandoned.
“B. Zarnett J.A.”
“L. Favreau J.A.”
“L. Madsen J.A.”
1The trial judge refers to these pills interchangeably as Percocet and oxycodone, as do we.
2In his reasons, the trial judge referred to the amount of crack cocaine as 225.44 grams in one paragraph and 240.68 grams in another paragraph. The expert evidence referred to 225.44 grams. Nothing turns on this discrepancy.
3Only seven counts were listed in the reasons. The appellant was convicted of all eight counts on the indictment.
4The sentence remains unchanged because the sentences on Counts 3 and 4 were to run concurrent to the sentences imposed for the other counts, namely Count 8 for possession of a restricted firearm with ammunition and Count 2 for possession of cocaine for the purpose of trafficking.