DATE: 20010626
DOCKET: C32422

COURT OF APPEAL FOR ONTARIO

FINLAYSON, WEILER and SHARPE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

RAYMOND EMES

Appellant

Counsel:
Peter DeFreitas, for the respondent
Gregory Lafontaine, for the appellant

Heard: June 15, 2001
Released orally: June 15, 2001

On appeal from the convictions imposed by Justice S. Casey Hill dated April 8, 1999.

BY THE COURT:

Background

[1] The appellant, Raymond Emes, was tried at Brampton before the Honourable Mr. Justice S.C. Hill, sitting without a jury, on his plea of not guilty to charges of unlawful cultivation of a narcotic and possession of a narcotic for the purpose of trafficking. The appellant was found guilty of both counts on April 8, 1999, was sentenced to a conditional sentence of imprisonment of three months and was fined $1500. The appellant now appeals against his convictions.

[2] In terms of background, on January 11, 1997, the police executed two search warrants. One warrant was executed at 5 Nina Street in Toronto (“Nina”), and the other warrant was executed at Unit #240, 7280 Darcel Avenue in Mississauga (“Darcel”). A marijuana growing operation was located at Darcel. The police seized numerous pieces of paper with various writings upon them at Darcel. Similarly, numerous pieces of paper with various writings upon them were seized at Nina.

[3] Ms. Esther Salomon, who had administrative duties in the property management office of the Darcel Condominium, identified Raymond Emes, in the courtroom, as a tenant whom she had dealt with in the past. Ms. Salomon originally showed Mr. Emes apartment #240 at 7280 Darcel Avenue. The trial judge summarized the evidence of Ms. Salomon as follows:

The witness, refreshing her memory from a number of documents, testified that Mr. Emes had rented the apartment from December 15, 1993 to January, 1997. While Ms. Salomon’s evidence was confusing as to whether a tenancy agreement existed with Mr. Emes in January of 1997, the witness testified that payment for the January, 1997 rent was received. Ms. Salomon further stated that when Mr. Emes’ February cheque was returned NSF, she considered the tenancy terminated.

Ms. Salomon testified that, over the years, Mr. Emes would drop into the business office to hand in rent cheques and visit with staff. To the witness’ recall, she last saw Raymond Emes in November or December of 1996. Ms. Salomon was unable to positively state whether Raymond Emes was actually resident in apartment #240 on January 11, 1996.

Ms. Salomon was able to identify at least one rental document relating to apartment #240 signed in her presence by Mr. Emes. …

Ms. Salomon testified that tenants of the Darcel Ave. buildings were only permitted to sublet with approval. … The import of the witness’ evidence was that as of January, 1997 there was no authorized sublet for apartment #240. …

Ms. Salomon testified that Mr. Emes had placed a double lock on his apartment door – he had to be present in order for building personnel to enter the apartment.

[4] The theory of the Crown was that Mr. Emes was residing in the basement apartment at Nina and that, as a tenant at Darcel, he used those premises for a hydroponics operation in order to cultivate the narcotic marihuana. In order to establish its case at trial, the Crown relied heavily upon documents seized at Nina and Darcel. Crown counsel submitted that the Crown was not relying on proof arising from truth-of-contents inferences raised by the “business records” or “document found in possession” doctrines. Rather it maintained that certain inferences were legitimately available arising from the discovery of documents bearing the appellant’s name and/or describing certain subjects or transactions and that the seized documents were probative as a form of circumstantial evidence.

[5] The defence position at trial was that the seized documents had no probative value as circumstantial evidence, or alternatively, that the inferences which were sought to be drawn were of such trifling value as to be dangerously unsafe and misleading.

[6] Before this court, it was argued on behalf of the appellant that the trial judge erred in ascribing any value whatsoever to the majority of the documents that were seized from Nina and Darcel, and erred in accepting the Crown’s argument that the various documents and the writings contained thereon could be considered as circumstantial evidence.

Analysis

[7] In our opinion, Hill J. was correct in his appreciation of the admissibility and use to be made of the materials seized from the Nina Street and Darcel Avenue addresses that were central to the Crown’s case against the appellant. He characterized the import and relevance of that evidence as follows:

The seized documents in this case have relevance to a material issue – whether Mr. Emes had a sufficient connection to the Darcel Ave. apartment to permit the court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the marihuana.

The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates to circumstantial inference-drawing apart from the truth of the contents of the seized documents: see Regina v. Lydon (1987), 85 Cr. App. R. 221 (C.A.) at 223-225 per Woolf L.J.; Regina v. Rice, [1963] 1 Q.B. 857 (C.C.A.) at 869-973 per Winn J., Ewart D., Documentary Evidence in Canada (1984), at pp. 20-21; Sopinka J., Lederman, S., Bryant, A., The Law of Evidence in Canada (1992), at p. 20.

[8] After reviewing the items of evidence, Hill J. set out his reasons for accepting the seized documents as circumstantial evidence. He held that:

Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here.

Likewise, the finding of documents relating to the subject matter of marihuana cultivation, found in close proximity to those personal papers identifying Mr. Emes, suggests that the documents are his as well. The inference to be drawn from a person’s possession of documents characteristic of one operating a hydroponics venture is not terribly dissimilar to the inference which might be drawn from finding an individual in possession of physical items such as ballast, fans, grocubes, water trays, fans, heaters, various chemicals, PH compound, transformers, high wattage bulbs and reservoirs.

[9] Having assessed the cumulative effect of the circumstantial evidence, Hill J. found that the only reasonable conclusion was that the appellant had knowledge and control of the marijuana at the Darcel apartment. In coming to this conclusion, he noted that the appellant did not testify or call evidence.

[10] We can see no error in the reasons of the trial judge and, accordingly, the appeal is dismissed.

Released: JUN 26 2001 GDF

Signed:
“G.D. Finlayson J.A.”
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”