Court of Appeal for Ontario

Date: 20220512 Docket: C67354

Doherty, Tulloch and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Shane Achilles Appellant

Counsel: Myles Anevich, for the appellant Erin Carley, for the respondent

Heard: May 4, 2022

On appeal from the conviction entered on August 8, 2018, and the sentence imposed on March 12, 2019, by Justice James W. Sloan of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for two counts of possession for the purpose of trafficking a significant amount of narcotics, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as well as for one count of possession of a prohibited weapon, contrary to s. 91(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He also seeks leave to appeal his sentence of eight years’ custody.

[2] He raises three grounds of appeal: (1) that the trial judge’s verdict on the possession for trafficking charges was unreasonable; (2) that the trial judge misapprehended the police expert evidence on the indicia of drug trafficking activity; and (3) that the trial judge reversed the burden of proof and the Crown failed to prove all the essential elements of the possession of the prohibited weapon charge.

[3] We would not give effect to the first two grounds of appeal. On the third ground of appeal, we agree with the submissions of the appellant, and as such, would quash the conviction on the possession of a prohibited weapon charge.

Background Facts

[4] The charges arose as a result of the Waterloo Regional Police Service’s execution of search warrants at a unit rented by the appellant and which he used as his residence. During the search, police located and seized 135.1 grams of fentanyl as well as three containers of methamphetamine which contained a total of 729.9 grams. The police also located a shuriken, mounted on a plaque. A shuriken is a star-like object made of metal with very sharp edges, and is generally employed as a throwing star.

[5] Inside the unit was also a large guard-type dog. The trial judge held that the appellant owned the dog. In addition, police found the accused’s cell phone under a cushion as well as drugs contained in an unlocked filing cabinet in the main room. Among the drug paraphernalia, the police found correspondence and cheques addressed to the appellant.

[6] At trial, the appellant pled not guilty and advanced an alternative suspect defence, suggesting that he had sublet a portion of the premises to an associate, Mr. Vezina, who was a drug dealer, and that the appellant was neither a partner of Mr. Vezina, nor was he aware or had any control of the large quantities of drugs found at the premises.

[7] The trial judge rejected the defence position and evidence, and found specifically that the appellant resided at the subject unit and had “considerable, if not ultimate, control of the unit subject to the landlord’s rights”. The trial judge further found that given the control that the appellant exercised over the subject unit, “it would be virtually impossible for him not to know that the subject drugs were on the premises and therefore they were there with his consent”.

[8] The appellant submits that in convicting the appellant for possession of the narcotics, the trial judge relied almost exclusively on circumstantial evidence. That is, the trial judge’s verdict on the narcotic counts was unreasonable, as the evidence did not establish whether the appellant was residing at the subject address when the police executed the search warrant, nor did the evidence establish the knowledge component of the possession charge – i.e. that the appellant in fact knew about the drugs in the unit. According to the appellant, the trial judge failed to consider alternative inferences that were inconsistent with guilt, such as the evidence that Mr. Vezina was clearly engaged in significant drug trafficking of fentanyl and methamphetamine and that the appellant had access to the unit as he was subleasing a portion.

The Conviction Appeal

[9] It is well established that an “appellate court’s role in reviewing a trial decision involving circumstantial evidence is circumscribed”: R. v. Panchal, 2022 ONCA 309, at para. 35. As this court set out in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39:

When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.

[10] We see no error with the trial judge’s reasons or his findings on the narcotic counts. Based on the totality of the evidence, the trial judge’s reasons were reasonable, and his factual findings are owed deference. The trial judge conducted a very thorough review of the evidence and the submissions of counsel. He made certain key findings that are irrefutable. We accept and adopt the submissions of the respondent as outlined in para. 24 of their factum. The evidence was overwhelming that the appellant had both knowledge and control of the contents of his unit, and to find otherwise would have been unreasonable in all the circumstances. The appellant is essentially asking this court to consider unreasonable alternative inferences which would be based on speculation rather than on evidence adduced at trial. Accordingly, this ground of appeal is dismissed.

[11] The appellant also argues that the trial judge misapprehended the police expert evidence concerning the indicia of drug trafficking, and erroneously found that drug dealers with larger quantities of drugs see less customer traffic. The trial judge did not misapprehend the evidence. At trial, Sergeant Handfield testified that mid-level and high-level traffickers actually see fewer people in and out of their premises as they deal with other dealers who in turn supply lower-end dealers. It was certainly open to the trial judge to rely on this evidence. In any event, we are satisfied that this evidence did not materially affect the trial judge’s finding on the drug charges. As such, we do not give effect to this ground of appeal.

[12] With respect to the third and final issue raised by the appellant, we are satisfied that the trial judge did err in reversing the onus of proof and requiring the defence to present evidence as to whether or not the shuriken – which was found mounted on a plaque – met the legal definition of a prohibited weapon. In his reasons, the trial judge stated:

The defence had the opportunity to present evidence to the Court as to whether or not it was sharp or whether or not for some other reason it did not qualify as a prohibited weapon. It did not do so and the Court can come to no other conclusion than the shuriken was a prohibited weapon under the Criminal Code of Canada ….

[13] The Crown presented no evidence to the court that the shuriken met the legal definition of a prohibited weapon. The onus is always on the Crown to prove the essential elements of an offence: R. v. Morin, [1988] 2 S.C.R. 345, at pp. 361-362; R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 96. As this court has counselled, “[n]othing more is required. But nothing less will do”: R. v. Boucher, 2022 ONCA 40, at para. 63. One of the essential elements of this offence was for the instrument to have “one or more sharp edges”: Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462. While on the face of it, the instrument fits the description, it was mounted on a stationary plaque and the onus was on the Crown to still establish that the instrument was a weapon. The trial judge erred by starting with the presumption that the shuriken was a prohibited weapon and then placing the onus on the defence to rebut that presumption. As such, this ground of appeal is granted, and an acquittal is entered.

The Sentence Appeal

[14] The trial judge sentenced the appellant to eight years in prison less pre-trial custody credit of 1,190 days, leaving the appellant with a further 4.7 years to serve. We are satisfied that the sentence the trial judge imposed for the drug offences was fit in the circumstances. He properly weighed the aggravating and mitigating circumstances and applied the correct and applicable legal principles.

[15] In light of our position on the possession of prohibited weapon charge, we are satisfied that notwithstanding the fitness of the global sentence, a reduction of two months’ custody is warranted. Accordingly, the global sentence is reduced by two months’ custody. Therefore, the net sentence is now 4.7 years’ custody minus 2 months.

“Doherty J.A.”

“M. Tulloch J.A.”

“L. Favreau J.A.”