Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210806 DOCKET: C67957

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Forhad Ahmed Choudhury Appellant

Counsel: Ian B. Kasper, for the appellant Colleen Liggett, for the respondent

Heard: March 3, 2021 by video conference

On appeal from the conviction entered on October 16, 2019 by Justice Heather J. Williams of the Superior Court of Justice, and from the sentence imposed on February 21, 2020.

Jamal J.A.:

Introduction

[1] The appellant, Forhad Ahmed Choudhury, was charged with 15 counts of offences relating to drug trafficking, drug possession for the purpose of trafficking, and possession of a firearm. The charges arose from events in July 2015: (1) an undercover drug buy for cocaine involving the appellant and an undercover police officer; (2) crack cocaine found in the appellant’s groin area during a strip search upon arrest; and (3) drugs, a loaded gun, ammunition, and cash found in the room of a house that the appellant had recently been seen entering and leaving. The appellant was convicted of 12 of the counts and sentenced to 3½ years in custody, less credit for pre-sentence custody and strict bail conditions, for a net sentence of 2½ years. He now appeals against his convictions and seeks leave to appeal his sentence.

[2] The Crown concedes that the conviction for trafficking cocaine arising from the undercover drug buy (count 1) should be quashed and an acquittal entered. The Crown also concedes that the conviction for possession of crack cocaine for the purpose of trafficking arising from the arrest seizure (count 3) should be set aside and substituted with a conviction for the included offence of simple possession of crack cocaine. As explained below, I would accept these Crown concessions.

[3] The only disputed issue on appeal involves the convictions for the drug and firearms offences relating to the contraband found in the room of a house in Ottawa, to which the appellant had access (counts 4 to 7 and 9 to 14). For the reasons that follow, I conclude that the trial judge erred in law by conflating the appellant’s access to the room with his constructive possession of the contraband. I would allow the appeal and order a new trial on those counts.

Background

[4] Based on information from a confidential informant, police went to a house in Ottawa on July 3, 2015 to make an undercover drug buy. The appellant came out of the house, spoke to an undercover officer, went behind the house with her, returned, and entered the house without a key. The undercover officer, who had gone behind the house with appellant to allegedly buy the drugs, then gave a small package of 1.5 grams of cocaine to another undercover officer at the scene.

[5] Three days later, the police saw the appellant enter the house using a key.

[6] The next day, the police arrested the appellant at the house as he was leaving in a blue Mercedes. The police seized cash, cellphones, and a keychain of keys from the car’s ignition. The police then executed a search warrant at the house. One of the rooms, Room #4, was locked. The police breached the lock and entered. They found cash, drugs, scales, cell phones, a revolver BB gun, CO2 cartridges, and BB pellets. They also found an unlocked plastic Sentry-brand lockbox containing a loaded handgun and loose ammunition. The room was filthy and contained male clothing.

[7] One officer testified that he found the appellant’s OHIP card in the room on a chair, as well as digital scales and U.S. currency. The officer made no note of the OHIP card and it was not included in the exhibit list. He testified that he took the OHIP card to photocopy it and planned to return it to the appellant, as the usual practice was to return originals of government I.D. to the owner.

[8] Two of the keys on the keychain seized from the appellant’s car operated the lockbox found in Room #4. A woman, who was the sole tenant listed on the house’s lease, was in the house during the search. Police also searched another room, believed to be hers, which contained female clothing, needles, and crack pipes, but was otherwise clean.

[9] During an authorized strip search of the appellant at the police station, the police found crack cocaine in his groin area. At the start of trial, the Crown filed a defence admission made under s. 655 of the Criminal Code, R.S.C. 1985, c. C-46, to dispense with the need for proof, that the quantity of crack cocaine seized from the appellant’s groin area was 8.1 grams. However, the arresting officer then testified that the police had seized only 2.5 grams. Despite this evidence, the trial judge allowed the Crown to rely on the appellant’s admission and convicted him of possession of 8.1 grams of crack cocaine for the purpose of trafficking, based partly on evidence that even a heavy crack user would typically have only up to 3.5 grams in their possession for personal use.

[10] The trial judge placed no weight on the OHIP card because it was not included in the exhibit list or mentioned in the officer’s notes. She found that “[r]outine steps” should have been taken to satisfy the court that the OHIP card was found where the police said it was found and that “safeguards … should have been in place” to satisfy the court as to its reliability.

[11] Despite placing no weight on the OHIP card, the trial judge found a “strong connection” between the appellant and Room #4. She found the appellant in constructive possession of the items in the room based on the following evidence:

1. The appellant was seen leaving the house on July 3, 2015 to meet the undercover officer and walking back towards and entering the house after meeting her;
2. On July 6, 2015, the appellant was seen entering the house using a key;
3. On July 7, 2015, the day of his arrest, the appellant was seen leaving the house. He was stopped by police and crack cocaine and cash were seized from him;
4. Crack cocaine was not found anywhere in the house other than Room #4; and
5. A Sentry-brand lockbox was found in Room #4. Two keys from the keychain taken from the ignition of the appellant’s car had “Sentry 009” written on them and locked and unlocked the lockbox.

[12] The trial judge held that the Crown had proven beyond reasonable doubt that the appellant “had access to [the house] and also access to Room #4”. She also ruled that the appellant had knowledge of the drugs and other items in Room #4, and that he knowingly kept them in the room and intended to have them for his use or benefit.

[13] The appellant was convicted of: (1) one count of trafficking cocaine, arising from the undercover drug buy (count 1); (2) one count of possession of crack cocaine for the purpose of trafficking, arising from a search of his person on arrest (count 3); and (3) 10 counts of possession of various drugs for the purpose of trafficking, possession of $4,850 knowing that it was obtained by trafficking in a controlled substance, and various firearms offences, all arising from the search and seizure from Room #4 (counts 4 to 7 and 9 to 14).

Issues on Appeal

[14] The appellant raises three grounds of appeal from his convictions:

1. With respect to the undercover drug buy, the trial judge erred in convicting the appellant of trafficking cocaine, when the undercover officer who allegedly bought the cocaine from him did not testify;
2. With respect to the conviction for possession of crack cocaine for the purpose of trafficking, the trial judge erred in convicting the appellant based on his s. 655 admission that he had 8.1 grams on his person, when the arresting officer testified that the amount was only 2.5 grams; and
3. The trial judge erred in finding the appellant in constructive possession of the contraband in Room #4, when the evidence only showed that he had access to the room. The trial judge conflated access to the room with constructive possession of the contraband.

Discussion

[15] With respect to the first issue — the undercover drug buy (count 1) — the trial judge found a “reasonable and non-speculative inference” that the appellant sold cocaine to the undercover officer. Before this court, however, the Crown now concedes that there was insufficient evidence to support a conviction on this count because the undercover officer did not testify and no other witness saw the transaction. The Crown thus accepts that this count must be quashed and an acquittal entered. I would accept this concession, quash the conviction for trafficking cocaine, and enter an acquittal on this count.

[16] With respect to the second issue — the seizure of drugs from the appellant’s person on arrest (count 3) — the Crown concedes that it was unfair for the Crown to rely on the s. 655 admission at trial about the quantity of drugs seized from him (8.1 grams), when the Crown led contrary evidence (2.5 grams). The Crown also concedes that the expert evidence was equivocal on whether only 2.5 grams of crack cocaine would be possessed for the purpose of trafficking. The Crown therefore proposes that this court substitute a conviction of the included offence of simple possession of 2.5 grams of crack cocaine. The appellant agrees with this position. As for the sentence for this count, the Crown proposes 30 days, while the appellant submits that a sentence of 5 days would be appropriate, reduced to time served in light of credit for pre-sentence custody.

[17] I agree with the Crown’s position and would substitute a conviction of simple possession of 2.5 grams of crack cocaine. Regarding sentence, I again agree with the Crown that a 30-day sentence is appropriate, before taking into account the appellant’s pre-sentence custody. The appellant spent 49 days in pre-sentence custody, which the trial judge credited at about 1.5 to 1. I would give the appellant the same rate of credit for 19 of those days, resulting in credit of about 29 days. Considering this credit, I would sentence the appellant to time served, plus one day, which shall be the day that the appellant surrendered into custody before the release of these reasons.

[18] The only significant dispute concerns the third issue — whether the appellant had constructive possession of the drugs, cash, and firearm found in Room #4 (counts 4 to 7 and 9 to 14). The appellant asserts that the trial judge erred in finding his access to Room #4 determinative of his constructive possession of the contraband.

[19] The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects 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: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

[20] The appellant says that the trial judge correctly stated the test for constructive possession but failed to apply it. He says the trial judge only found beyond a reasonable doubt that the appellant had “access” or a “connection” to Room #4, which could not establish constructive possession of the contraband, and that she did not find he had exclusive access to the room. The appellant says the trial judge failed to analyze whether he had any knowledge of, or control over, the contraband. He says the trial judge’s finding of “access” or “connection” to a place do not, on their own, establish the knowledge or control needed for constructive possession.

[21] The Crown responds that although the trial judge’s reasons referred to the appellant’s “access” and “connection” to Room #4, her reasons as a whole show that she correctly applied the concept of knowledge and control. The Crown says the trial judge treated the location and accessibility of the contraband as a part of the factual matrix in ruling that control was established. The Crown also notes that exclusive access to a location is not needed to establish constructive possession of objects found there.

[22] I agree that the Crown did not need to show the appellant had exclusive access to Room #4 to establish his constructive possession of objects found there. Section 4(3)(a)(i) of the Criminal Code provides that a person may be in “possession” of an object even if it is knowingly “in the actual possession or custody of another person”, which confirms that exclusive access to the object is not required: see also Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff — Criminal Law, 5th ed. (Toronto: LexisNexis Canada, 2015), at p. 1377 (“section 4(3) attributes possession to the person who knowingly has anything in the actual possession or custody of another person”).

[23] I do, however, agree with the appellant that the trial judge conflated the appellant’s “access” and “connection” to Room #4 with his constructive possession of the contraband. The trial judge referred to five items of evidence supporting her conclusion that the appellant had access to Room #4, and then concluded, without further discussion or analysis, that he had constructive possession of the contraband:

I find that the Crown has proven, beyond a reasonable doubt, that [the appellant] had access to [the house] and also access to Room #4: the keys on his key chain that opened the lock box in Room #4 provide a direct and undeniable connection between [the appellant] and the interior of that room.

For these reasons, I have concluded that [the appellant] had access to Room #4 and that he:

(a) Had knowledge of the drugs and other items that were kept in Room #4; (b) Knowingly kept the drugs and other items in that location; and (c) Intended to have the drugs and other items in Room #4 for his use or benefit. [Emphasis added.]

[24] Later in her reasons, the trial judge again referred to her finding of the appellant’s “access” to Room #4 as the basis for finding him in constructive possession of the gun found in the unlocked lockbox:

I have already found that [the appellant] did have access to Room #4 and that he was in constructive possession and therefore in possession of all of the drugs and items in the room. This finding includes the .22 calibre handgun. [Emphasis added.]

[25] In my view, these passages strongly suggest that the trial judge conflated mere access to the contraband with constructive possession.

[26] The trial judge also failed to explain why the circumstantial evidence she referred to established that the appellant’s knowledge and control of the contraband was the only reasonable inference on the facts:

• The trial judge referred to the appellant being seen entering and leaving the house, but the house also had a female tenant — the only tenant listed on the lease — who was in the house during the search and seizure. Police found needles and crack pipes in what they believed was her room. The trial judge did not explain why, given this evidence, the only reasonable inference was that the appellant had knowledge and control of the contraband.
• Although, as the trial judge noted, no cocaine was found in the house other than in Room #4, needles and crack pipes were found in what looked like the woman’s room.
• The strongest evidence linking the appellant and the contraband were the keys on the keychain taken from the appellant’s car, which opened the lockbox found in Room #4. The trial judge mentioned this evidence, but failed to address its weaknesses. The lockbox was already open when the police searched the room. Although the keys arguably showed that the appellant had access to the lockbox, they did not necessarily establish his knowledge or control of the items in it, because the box was open. Others could have put those items there. The appellant did not control the lockbox and its contents by locking it. Nor was there any direct evidence that the appellant had ever been in Room #4. The police did not test whether any of the keys on the appellant’s keychain opened the door to Room #4.

[27] The trial judge thus failed to address the circumstantial nature of the evidence. Although I accept that the evidence allowed her to infer that the appellant had access to Room #4, she did not explain why the only reasonable inference was that he had knowledge and control of the contraband.

[28] I therefore conclude that the trial judge erred by conflating the appellant’s access to Room #4 with constructive possession of the contraband. I would allow the conviction appeal on counts 4 to 7 and 9 to 14, quash the convictions, and direct a new trial on those counts.

Disposition

[29] I would: (1) allow the appeal on the conviction on count 1, quash that conviction, enter an acquittal, and quash the six-month concurrent sentence attaching to that conviction; (2) dismiss the appeal on the conviction on count 3, substitute a conviction for the included offence of simple possession, and given the appellant’s pre-sentence custody, substitute a sentence of time served, plus one day, which shall be the day the appellant surrendered into custody pending the release of these reasons; and (3) allow the appeal on the convictions on counts 4 to 7 and 9 to 14 and direct a new trial on those counts. The ancillary orders imposed by the trial judge would fall with the convictions that I would set aside.

Released: August 6, 2021 “D.W.” “M. Jamal J.A.” “I agree. David Watt J.A.” “I agree. M.L. Benotto J.A.”