DATE: 20050919

DOCKET: C42533

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- JEFFREY WHITE (Appellant)

BEFORE:

LASKIN, FELDMAN and ARMSTRONG JJ.A.

COUNSEL:

John A. Dent

for the appellant

Riun Shandler

for the respondent

HEARD & RELEASED ORALLY:

September 15, 2005

On appeal from the judgment of R. Khawly J. of the Ontario Court of Justice dated January 7, 2004 for the charges of: possession for the purpose of trafficking, possession of a controlled substance, careless storage of a firearm, careless storage of ammunition, unauthorized possession of a restricted weapon, and unauthorized possession of a firearm.

E N D O R S E M E N T

[1] We agree with the appellant that the trial judge erred in law in his articulation and application of the reasonable doubt standard. The issue in this case was possession; the evidence was circumstantial. To obtain a conviction the Crown had to show that the appellant’s possession was the only reasonable inference available from the evidence. Although the trial judge said that he applied this standard, he rejected the competing inference raised by the appellant on the ground that it was not “equally plausible.” In the trial judge’s words:

Could a trier fact looking at the evidence presented by the Crown save that it is equally plausible that what [the defence] is suggesting could happen. And unless it is equally plausible then it is not a rational conclusion. But I agree if it is equally plausible a trier fact cannot therefore be convinced beyond a reasonable doubt.

[2] This is clearly a legal error. Our court has held many times that reasonable possibilities in favour of an accused may give rise to a reasonable doubt. See R. v. Finlay and Grillette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.) at para. 22.

[3] Therefore, the convictions cannot stand. However, in our view, on this record it would be open to a trier fact, properly instructed, to convict the appellant. Thus the appropriate remedy is a new trial instead of an acquittal. In determining whether to proceed with a new trial the Crown may wish to take into account that the appellant has served the entire custodial portion of his sentence. The appeal is allowed. The convictions are set aside, and a new trial is ordered.