COURT OF APPEAL FOR ONTARIO
DATE: 20000313
DOCKET: C23951
CHARRON, GOUDGE and MacPHERSON JJ.A.
B E T W E E N :
Richard N. Stern,
HER MAJESTY THE QUEEN
for the appellant
Respondent
- and - Erika Chozik,
for the respondent
IRVINE GEORGE FORREST
Applicant/
Appellant
Heard: March 8, 2000
On appeal from his conviction by Mr. Justice D. Humphrey on
August 15, 1994
BY THE COURT:
[1] Following a trial before Humphrey J., the appellant was
convicted of possession of a restricted weapon and possession of
cocaine for the purpose of trafficking. He was sentenced to a
term of imprisonment of two years concurrent on each charge. The
appellant appeals against his conviction and seeks leave to
appeal his sentence. The sentence appeal is combined with two
other appeals on sentence and will be disposed of in separate
reasons.
[2] The weapon and the drugs in question were found by the
police inside a motor vehicle between the two front seats. The
central issue at trial was whether the appellant was in
possession of this motor vehicle and its contents. The evidence
linking the appellant to the motor vehicle was entirely
circumstantial.
[3] At the conclusion of a short trial, the trial judge gave
brief reasons setting out the inferences that he drew from the
evidence and the conclusions he reached based on those
inferences.
[4] The appellant argues that the inferences drawn by the trial
judge were based on a misapprehension of the evidence on several
points. He argues further that the trial judge may have relied on
the appellant’s failure to testify as a basis for conviction when
he stated that “absent any explanation, the absolutely
irresistible inference is that the accused was in possession of
everything in the car” and that this danger renders the
conviction unsafe. Finally, the appellant argues that the
evidence does not support a finding that the possession of the
drugs was for the purpose of trafficking.
[5] We see no merit in the contention that the trial judge may
have relied on the appellant’s failure to testify as a basis for
conviction. It was entirely appropriate for the trial judge in
his ultimate assessment of the evidence to consider the fact that
there was no evidence that would lead him to an inference other
than guilt.
[6] Although not framed in this manner, it is our view that the
appellant is in essence arguing that the verdict was unreasonable
and unsupported by the evidence that could properly be considered
by the trial judge. We do not agree. In our view, there was
sufficient evidence linking the appellant to the motor vehicle in
which the weapon and the drugs were found to support the trial
judge’s conclusion that the appellant was “in possession of
everything in the car.” Consequently, the fact that he may have
misapprehended the evidence as to the location of the drugs in
the car does not in our view constitute an error which requires
appellate intervention.
[7] For these reasons, the appeal against conviction is
dismissed.
(signed) "Louise Charron J.A."
(signed) "S. T. Goudge J.A."
(signed) "J. C. MacPherson J.A."
RELEASED: March 13, 2000