Court of Appeal for Ontario

Date: August 15, 2017 Docket: C60929

Judges: Doherty, LaForme and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Ginell McLean Appellant

Counsel

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Heard and released orally: August 15, 2017

On appeal from the conviction entered by Justice M.F. Brown of the Superior Court of Justice on January 27, 2015.

Reasons for Decision

[1] This was a simple single-issue case – did the Crown prove beyond a reasonable doubt that the appellant was in possession of the firearm and ammunition found in the computer bag she removed from her apartment, took and left in the apartment of her cousin?

[2] There was overwhelming evidence that the appellant had possession of the computer bag in which the gun and ammunition were found during the police search. She took the bag from her apartment to her cousin's apartment in the same building and left the bag in the bedroom where the police discovered it a short time later.

[3] The crucial question was whether the appellant knew the gun and ammunition were in the bag. Her boyfriend, who was at her apartment earlier that morning, was a gang member and presumably the suggestion is that, unbeknownst to the appellant, he put the gun and ammunition into the bag.

[4] In our view, if the Crown proved that the appellant knew the gun and ammunition was in the bag, her physical possession of the bag and her control over it provided ample evidence of sufficient control over the contents of the bag to establish the control required for possession. Knowledge was the crucial issue. The Crown relied on circumstantial evidence to prove knowledge or its legal equivalent, wilful blindness. The appellant did not testify. The trial judge thoroughly and accurately reviewed the evidence and we will not repeat that exercise.

[5] The appellant submits that the verdict is unreasonable. She argues that the trial judge did not consider the availability of an alternative inference, that is, that the bag contained some other kind of contraband, e.g. drugs.

[6] We disagree with this submission. The trial judge specifically considered and rejected the submission, describing it as based on "speculation". We agree with this characterization. There was simply no evidence of what, if anything, was said by the boyfriend to the appellant about the contents of bag. The trial judge had to draw inferences from the evidence, not from what the evidence might have been.

[7] To succeed on the argument that the verdict was unreasonable, the appellant must convince us that no trial judge, acting reasonably and on a proper understanding of the law relating to circumstantial evidence, could have been satisfied beyond a reasonable doubt that the appellant knew the gun and ammunition were in the bag. It is not this court's function to make its own assessment of the reasonable inferences that could be drawn. Rather, the court's limited power to reweigh evidence goes only so far as to determine whether the trial judge's inference of knowledge from the totality of the evidence falls within the range of reasonableness, having regard of course to the burden of proof.

[8] There was ample evidence from which the trial judge could reasonably come to the conclusion that he did, that is, that the Crown had proved knowledge or its equivalent, wilful blindness, beyond a reasonable doubt.

[9] The appeal is dismissed.

"Doherty J.A."

"H.S. LaForme J.A."

"Paul Rouleau J.A."