DATE: 20010522

DOCKET:C30536

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – HYLROY POWELL (Appellant)

BEFORE: FINLAYSON, CARTHY, SIMMONS JJ.A.

COUNSEL: Peter Bawden

For the appellant

Fergus O’Donnell

For the respondent

HEARD: May 14, 2001

On appeal from the conviction by Justice D.S. Ferguson dated April 17, 1998.

E N D O R S E M E N T

[1] The appellant appeals from his conviction on charges of possession of crack cocaine for the purpose of trafficking and possession of the proceeds of crime.

[2] The charges under appeal were laid as a result of the discovery of 80.8 grams of crack cocaine and $3,843 in cash in the appellant’s vehicle during a search conducted on November 12, 1994.

[3] The appellant was initially arrested on November 12, 1994 near a donut shop in Oshawa on charges of trafficking in cocaine and possession of cocaine for the purpose of trafficking. This first set of charges related to events observed by surveillance officers in the vicinity of the same donut shop on November 4, 1994.

[4] Police discovered the keys to the appellant’s vehicle on his person at the time of his arrest. After locating the appellant’s vehicle a short distance from where he was arrested, police obtained a warrant authorizing the search of the vehicle. In addition to the money and cocaine, police also found the following items in the vehicle at the time of the search: the appellant’s wallet and identification, two pagers, a cellular telephone, a package of plastic wrap, and a small piece of plastic wrap on the driver’s seat.

[5] The original set of charges and the charges arising from the search of the vehicle were combined in a four-count indictment. The Crown withdrew the original trafficking charge at the opening of trial on the basis that there was no reasonable prospect of conviction. Subsequently, on a motion for a directed verdict of acquittal on the original charge of possession for the purpose of trafficking, the Crown conceded it could not prove identity, and invited the trial judge to enter an acquittal.

[6] The appellant testified at trial and denied knowledge of the cocaine and money found in his vehicle. The trial judge rejected the appellant’s evidence and convicted him of both of the remaining charges. In determining that knowledge had been proven, the trial judge referred to evidence relating to both the dismissed charge of possession of cocaine for the purpose of trafficking and the withdrawn charge of trafficking.

[7] The appellant submits that the trial judge erred by drawing an adverse inference against him based on evidence led to support the possession for the purpose of trafficking charge. He says he was irrevocably deemed innocent of that charge once it was dismissed: R. v. Grdic (1985), 1985 34 (SCC), 19 C.C.C. (3d) 289 at 294 (S.C.C.) He submits this situation is distinguishable from that contemplated in R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 at 355 (S.C.C.) in which Justice Cory, on behalf of a unanimous court said:

Even so, I cannot accept the proposition that the principal set out in Grdic, supra, applies to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding. There is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it.

In this case the possession for the purpose of trafficking charge was considered and dismissed prior to the appellant testifying and prior to the court deliberating on the remaining counts.

[8] The appellant further submits that the balance of the evidence was insufficient to support an inference of knowledge of the contraband discovered in the vehicle. In particular, the eyewitness identification evidence of the surveillance officers led in relation to the trafficking charge was too frail to be relied upon. Moreover there was insufficient evidence that a drug transaction had occurred on November 4, 1994, or that the appellant was a party to it, to support an inference of knowledge of the drugs found in the vehicle on November 12, 1994. Finally, the appellant says the trial judge misapprehended evidence concerning a substance found in his wallet.

[9] We would not give effect to these grounds of appeal.

[10] Even though the drugs and money were not in plain view within the vehicle, the facts that the appellant was in possession of his car keys and was arrested in close proximity to his vehicle, gave rise to a compelling inference that he knew about the money and the drugs, and had control of those items. The presence of the two pagers, the cellular telephone, and the plastic wrap all added strength to that inference, as did the fact that some of the money was in the console of the vehicle where the appellant’s wallet was located.

[11] Contrary to the appellant’s submissions, in our view the evidence identifying the appellant as one of two suspects observed by surveillance officers on November 4, 1994 was strong. First, we note that the appellant was under observation as a suspect by the officers on that day as part of a plainclothes surveillance operation. This is not a situation involving fleeting glances. Rather, the appellant was the object of the officers’ attention for a period of time.

[12] Second, there is no doubt that one of the officers correctly identified the appellant as one of two people the officer spoke to while on uniform patrol on October 12, 1994. The appellant acknowledged in his evidence that he had spoken to the officer on that day and that he had given the officer the false name the officer attributed to him.

[13] Finally, we note that the appellant was arrested as part of an ongoing investigation conducted over a short period of time. The surveillance officers formed an intention to arrest the appellant and the co-accused on November 4, 1994 but were unable to follow through on their plan. Subsequently, the surveillance officers were on the look-out for the suspects on November 5 and 10. They actually saw the suspects on the 10th, but were unable to arrest them. The surveillance officers spotted the appellant on November 11, 1994, and later arrested him in the early morning hours of November 12, 1994.

[14] Though perhaps not capable of supporting an inference of guilt beyond a reasonable doubt, we are satisfied that the evidence of the surveillance officers as to the activities of the appellant and the co-accused on November 4, 1994 relating to the trafficking count were more than sufficient to give rise to an inference of probable participation in a drug transaction.

[15] We note the evidence that the suspects were repeatedly using the payphone inside the donut shop. Various people were coming up to them, having brief conversations with them, and then leaving. On two occasions, the suspects left the donut shop with an individual who had approached them. The appellant proceeded to a nearby parking lot with one individual and to the location of the individual’s truck with the other. In both instances, the co-accused went to an alleyway, disappeared briefly down the alleyway, and then proceeded to the appellant’s location where he engaged in a hand to hand transaction with the individual the appellant had accompanied. The first individual was arrested shortly after the transaction. He attempted to throw something away as he was arrested. The suspects appeared to be suspicious of anyone watching them in that they were always looking around themselves. At one point, one of the officers checked the alleyway the frequented by the co-accused. The officer found a foil ball enclosing two small squares of what appeared to be crack cocaine.

[16] Accordingly in our view, the trial judge was properly entitled to use that evidence to support the inference that the appellant was aware of, and in control of, the drugs and money found in his vehicle.

[17] In our view, the evidence relating to the dismissed charge and the evidence of a substance found in the appellant’s wallet (“the impugned evidence”) is inconsequential when compared to the balance of the evidence adduced by the Crown. We see no realistic possibility that the trial judge’s conclusion as to the appellant’s evidence would have been any different had he not considered the impugned evidence. Viewed as a whole, we are satisfied that the balance of the evidence adduced by the Crown gave rise to a compelling inference of knowledge on the part of the appellant of the drugs and money found in his vehicle. Accordingly, assuming, without deciding, that the trial judge was not entitled to rely on the evidence relating to the dismissed charge, and that he misapprehended the evidence relating to the substance in the appellant’s wallet, we are satisfied that no substantial wrong or miscarriage of justice ensued as a result.

[18] The appeal is accordingly dismissed.

“G. D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J.A.”