CITATION: R. v. Robinson, 2009 ONCA 626
DATE: 20090827
DOCKET: C49400
COURT OF APPEAL FOR ONTARIO
Rosenberg, Armstrong and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Aileen Robinson
Appellant
Paul Calarco, for the appellant
Brian G. Puddington, for the respondent
Heard: May 14, 2009
On appeal from the judgment of Justice J. Elliott Allen of the Ontario Court of Justice dated June 26, 2008.
Epstein J.A.:
I. Overview
[1] After a judge-alone trial, the appellant was found guilty of one count of possession for the purpose of trafficking. She was sentenced to one year in jail.
[2] The circumstances surrounding the charge involve the discovery by the police of a substantial amount of crack cocaine tucked into a cooler display in a Beer Store. Just prior to the discovery of the drugs, the police observed the appellant enter the Beer Store and momentarily crouch down behind the display where the drugs were found. The trial judge rejected the appellant’s explanation that she was in the Beer Store to purchase something, had bent over near the display to retrieve her key that she had dropped, and had no connection with the drugs.
[3] The appellant appeals her conviction to this Court on the basis that the trial judge erred in his analysis of the evidence, and that his faulty reasoning in this regard led him to conclude the Crown had proven possession of crack cocaine beyond a reasonable doubt.
[4] For the reasons that follow, I would dismiss the appeal.
II. Background
[5] On July 27, 2007 at 9:40 a.m., two uniformed police officers were on duty in the parking lot of a plaza at Queen Street and Airport Road. Apparently, this is an area that experiences problems associated with the drug trade.
[6] Just after 10:00 a.m., the officers saw the appellant drive into the parking lot. She got out of her car and made several brief calls on her cellular telephone. A man arrived about 45 minutes later and the two began a conversation. At that point, the police approached the couple and shouted to get their attention.
[7] The appellant and the man then entered the Beer Store. The police followed the couple and observed the appellant near a display of cooler bags. She bent over for a few seconds and then picked up a cooler. At that point, one of the officers apprehended the appellant and took her outside for questioning.[^1]
[8] One of the officers then re-entered the Beer Store. Upon examining the display, he found an open cooler bag on the bottom shelf. Inside the bag he found a white envelope containing 14.25 grams of crack cocaine.
[9] The appellant was then arrested on the charge of possession for the purpose of trafficking.
III. The Reasons of the Trial Judge
[10] The trial judge started his brief reasons by describing the case as “circumstantial”. The appellant was not seen in possession of the drugs and there was no evidence discovered in her possession indicative of drug trafficking.
[11] The trial judge proceeded to identify the key issue as being whether the Crown was able to prove possession of the drugs beyond a reasonable doubt. He then examined the evidence upon which the Crown relied to establish possession.
[12] The Crown relied on the officer’s testimony that, according to his observations, the appellant had something white in her left hand as she approached the entrance to the Beer Store. Based on the fact that the officer’s recollection came from independent memory only and was not recorded in his notes, the trial judge declined to make a finding with respect to this aspect of the Crown’s case.
[13] The trial judge then turned to the appellant’s explanation about the circumstances surrounding her activities at the Beer Store parking lot.
[14] The appellant testified that she arrived at the Beer Store at 9:15 a.m. and did not enter the store at that time since it was closed. She claimed that she waited in the parking lot until 10:00 a.m. (when the store opened) and then went inside.
[15] The trial judge rejected this evidence. He accepted the police officers’ testimony that the appellant arrived at 10:05 a.m. and went into the Beer Store at 10:50 a.m., after the man appeared on the scene. This version of events was corroborated by the unchallenged surveillance videotape admitted into evidence at trial.
[16] The trial judge then reviewed the available circumstantial evidence relevant to possession.
[17] The appellant arrived at the parking lot shortly after the Beer Store opened and made several calls as she paced around outside of her car. A man arrived and the two struck up a conversation. The police, suspicions aroused, called out to the couple. The couple then went into the Beer Store.
[18] The appellant immediately went behind a display of coolers, briefly crouched down, stood up, picked up a cooler and tried to head out of the store. At that point, the police intercepted her. One of the officers returned to the location where the appellant had crouched down near the display and discovered crack cocaine inside of an envelope in an unzipped cooler bag.
[19] Finally, the trial judge turned to the appellant’s evidence that she simply dropped her key while examining the display to choose a cooler. He rejected this testimony as being “palpable nonsense”, noting that the spot where she bent over to pick up her key was, coincidentally, and the very same place where the police found the drugs.
IV. Issues
[20] The thrust of the appellant’s argument before this Court is that the trial judge improperly assessed the evidence. Specifically, the appellant contends that the trial judge failed to undertake a proper analysis as dictated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The appellant further submits that that the trial judge engaged in speculative and flawed reasoning, including the inappropriate use of judicial notice. Taken together, the appellant’s arguments posit that the trial judge effectively reversed the onus in this case by requiring the appellant to prove her innocence rather than making the Crown bear the burden of demonstrating guilt beyond a reasonable doubt.
V. Analysis
[21] As previously indicated, the issue in this case is whether the appellant was in possession of crack cocaine.
[22] There is no divide between the parties that proof of possession requires the Crown to establish the two distinct elements of knowledge and control: see R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531; R. v. Martin, 1948 CanLII 101 (ON CA), [1948] O.R. 962 (C.A.). No argument was raised concerning the proof of these two individual elements. The dispute is focused exclusively on whether the trial judge erred in his analysis of the evidence leading to his conclusion that the Crown had proven, beyond a reasonable doubt, that the appellant was the person responsible for depositing the bag of cocaine in the cooler display.
[23] With respect to this inquiry, the relevant evidence is the testimony of the police officers concerning the appellant’s actions and the subsequent discovery of the crack cocaine, the surveillance videotape and the appellant’s testimony.
[24] The appellant argues that the trial judge’s analysis of this evidence was defective in two respects. First, he failed properly to apply W.(D.). Second, he engaged in speculation and flawed reasoning by making the following inference: given that no one would leave such a valuable amount of crack cocaine lying around, and that the appellant had such a close proximate and temporal connection with the location where the drugs were found, it stands to reason that she must have been the person who put the drugs in the cooler display. The appellant submits that, as a result of these errors, the trial judge impermissibly shifted the burden of proof from the Crown to the defendant in this case.
(i) W.(D.)
[25] There is no dispute between the parties over the fact that there need not be a formulaic approach to the W.(D.) analysis. The essential aspect of the doctrine lies not in explicitly identifying the various stages of W.(D.) but rather in respecting its central tenet that the burden of proof must never shift from the Crown: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533.
[26] The approach dictated by W.(D.) required the trial judge to proceed as follows:
a) If he believed the defendant’s evidence, he had to acquit;
b) If he did not believe the defendant’s evidence, but it nevertheless raised a reasonable doubt in his mind as to the defendant’s guilt, he had to acquit; and,
c) Even if he was not left in doubt by the defendant’s evidence, he had to inquire into whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt of the defendant’s guilt.
[27] The key question, then, is whether the reasons disclose that the trial judge respected the substance of the W.(D.) analysis when reviewing the available evidence as to possession in this case. In my view, he did.
[28] In terms of the first step mandated by W.(D.), the trial judge did consider whether he believed the appellant’s evidence. His reasons indicate that he did not.
[29] Using strong language, the trial judge rejected the appellant’s evidence that she bent down behind the cooler display to retrieve her key and that the subsequent discovery of crack cocaine in the very same place was a coincidence:
And the idea that this is some sort of coincidence that she happened to drop her key on virtually exactly the same spot where a half an ounce of cocaine is found moments later is palpable nonsense.
[30] The appellant submits that the trial judge erred in not explaining the basis upon which he rejected her evidence. I disagree. The reasons indicate that the trial judge directed himself to the decisive question of whether or not the appellant was, in fact, the person who deposited the crack cocaine in the display. The factors affecting his finding that the appellant was not credible in this key aspect of her testimony are clear.
[31] First, he found that the appellant lied with respect to the timing of that morning’s events. While this does not mean he had to reject other aspects of her evidence, it was open to the trial judge to take that untruth into account when assessing her testimony on other issues, such as what happened inside the Beer Store.
[32] The reasons demonstrate that the trial judge examined all of the evidence from a balanced perspective. He was prepared to reject some portions of witness testimony but was also open to accepting other evidence given by those same witnesses. For example, he did not rely on the officer’s evidence about something white being in the appellant’s hand but found other aspects of the police testimony credible. Similarly, he rejected the appellant’s evidence about the timing of events but then proceeded to consider her testimony about dropping her key.
[33] Second, based on all of the circumstances, including the surveillance tape and the police evidence that he did accept, the trial judge concluded that the appellant’s evidence about her conduct that morning at the cooler display defied common sense.
[34] The second stage of the W.(D.) analysis focuses on the appellant’s raising a reasonable doubt as to her guilt. In my view, it is implicit in the reasons that the trial judge concluded the defence evidence on the critical issue of whether the appellant placed the crack cocaine into the display, did not raise a reasonable doubt.
[35] Finally, the trial judge examined the evidence that he did accept and concluded that the Crown had proven possession beyond a reasonable doubt:
The circumstances are that the officers see her come in when they say they saw her come in. They see her behave as they say she behaved, looking around on the phone as if she was expecting to meet somebody there. Their suspicions are aroused. I would find their reasonable suspicions are aroused that there may be a drug deal in progress, they behaved accordingly and keep an eye on her. A person who in the circumstances might be a customer shows up and is talking to her and that causes them to move in. She then goes into The Beer Store even though they’re calling out to her. And I accept their evidence in that regard. And as we see on the video, she goes behind the display and crouches down briefly and then grabs a cooler and tries to head out before she’s intercepted by the police. The next thing we see on the video is one of the officers coming in with his flashlight and there is absolutely no question, on the evidence of this case, finding half an ounce of cocaine where he says he found it.
This is a half an ounce of crack cocaine, people don`t just leave that lying around for no reason at all. And the correspondence of her ducking down on the video as she does and then the officer finding the cocaine on the video as he does defies any innocent explanation whatsoever.
In all the circumstances of this case there is absolutely no doubt that she was in possession of the cocaine and when the police approached that she went in and tried to hide it in the Beer Store.
[36] For the reasons outlined above, I would not give effect to the appellant’s arguments concerning the trial judge’s departure from the approach mandated by W.(D.). In my view, the various elements of W.(D.) can be discerned, either explicitly or implicitly, in the reasons of the trial judge. Most important, the reasons adhere to the core message of the doctrine, which is that the onus of proving guilt beyond a reasonable doubt lies with the Crown.
(ii) Speculation and flawed reasoning
[37] The appellant further submits that the trial judge concluded that the Crown had proven possession beyond a reasonable doubt based solely on speculation and flawed reasoning, and that he did so in a manner that effectively reversed the onus. The appellant begins by characterizing the trial judge’s comment that “people don’t just leave [half an ounce of crack cocaine] lying around for no reason at all” as improperly taking judicial notice of drug-related behaviour. The appellant then argues that the trial judge relied upon this presumed drug-related behaviour in order to find that the appellant’s crouching down in the location where the drugs were found constituted a coincidence that “def[ied] any innocent explanation whatsoever”. Finally, the appellant contends that this chain of reasoning – tantamount to a reversal of onus – formed the basis for the trial judge’s conclusion that the Crown had proven possession beyond a reasonable doubt.
[38] I do not agree with the appellant’s characterization of the trial judge’s reasoning.
[39] As has often been recognized, the trial judge occupies a special position in the assessment of evidence - one that necessarily attracts a high level of deference. In this case, the trial judge observed the witnesses and heard their testimony. He watched the surveillance tape. With the benefit of that evidence, he made a number of findings of fact. The appellant arrived at the Beer Store at 10:05 a.m.. She waited there for 45 minutes and made a number of telephone calls until a man arrived. At 10:50 a.m., when uniformed officers approached the couple, they entered the store. The police observed the appellant go directly to the cooler display and bend over. Immediately thereafter the police retrieved a substantial amount of drugs from the same spot where the appellant had just crouched down behind the display. The videotape corroborated this evidence. These findings of fact led the trial judge to draw inferences regarding the appellant’s activities and her connection with the drugs.
[40] A certain measure of common sense also contributed to this inference, as reflected in the trial judge’s remark that sizeable quantities of crack cocaine are not simply left lying around. But such a plainly rational observation falls short of an improper use of judicial notice.
[41] Ultimately, the reasons do not support the appellant’s claims of speculative and flawed analysis. The trial judge relied upon multiple findings of fact that were supported by the evidence, as well as his own common sense, in order to infer that the appellant had, in fact, deposited the drugs inside the cooler.
[42] In a related argument, the appellant submits that the trial judge effectively reversed the onus by forcing her to prove her innocence rather than requiring the Crown to demonstrate guilt beyond a reasonable doubt.
[43] I do not view the trial judge’s reasoning that way. The Crown's evidence was capable of supporting the conclusion that the drugs were put into the cooler display by the appellant. The fact that the drugs were found in the same location where she bent down by the display did not, by itself, bear the full weight of the Crown's burden. The trial judge’s reasons demonstrate that he was aware that the probative value of this aspect of the Crown’s evidence depended upon other evidence capable of supporting the reasonable inference that the appellant was responsible for the drugs found inside the unzipped cooler bag.
[44] Admittedly, the trial judge’s comment that the appellant’s conduct “def[ied] any innocent explanation whatsoever” was inappropriate. Taken in isolation, this phrase may be read as reversing the onus by suggesting that the lack of an innocent explanation implies guilt. The correct approach, however, is that the trial judge’s reasons “must be read and interpreted as a whole” and “cannot be viewed in isolation or in a piecemeal fashion”: R. v. Sparrow, [2008] O.J. No. 3456 (C.A.), at para. 55. Upon reviewing the entirety of the reasons, it is clear that the trial judge’s final conclusions were not predicated on a reversal of onus. This is evident not only from his explicit recognition that “it’s not incumbent on the accused to prove anything”, but also from the balanced manner in which he approached his analysis of all of the evidence.
[45] Moreover, I see no error in any other aspect of the trial judge’s reasoning. This was a strong circumstantial case. The trial judge’s findings of fact were supported by the evidence and were sufficient to allow him to come to the conclusion that he did – that the appellant was the person responsible for depositing the drugs the police retrieved from the cooler display and that the required elements for possession were proven beyond a reasonable doubt.
VI. Disposition
[46] For these reasons, I would dismiss the appeal.
RELEASED: August 27, 2009 (“M.R.”)
“G.J. Epstein J.A.”
“I agree M. Rosenberg J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: The man was also taken outside. After questioning, he was released.