Court of Appeal for Ontario

Citation: R. v. Duvivier, 2010 ONCA 136 Date: 2010-02-22 Docket: C49509 and C49580

Between: Her Majesty the Queen (Respondent) and Stephen Duvivier (Appellant)

Before: Moldaver, Cronk and Armstrong JJ.A.

Counsel: Mark Halfyard, for the appellant Antoinette Issa, for the respondent

Heard and released orally: February 16, 2010

On appeal from the conviction entered by Justice D. M. Brown of the Superior Court of Justice, sitting with a jury, on April 25, 2008 and the sentence imposed by Justice Brown on June 18, 2008.

Endorsement

[1] The appellant appeals from his conviction on one count of possession of crack cocaine for the purpose of trafficking on the ground that the jury verdict was unreasonable. In particular, he submits that there was insufficient evidence of his knowledge or control of the cocaine to establish constructive possession under s. 4(3)(a)(ii) of the Criminal Code or joint possession under s. 4(3)(b) of the Code.

[2] We reject this argument.

[3] The appellant does not challenge the well-established test for an unreasonable verdict. That test, as set out by the Supreme Court in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1, is whether, on all the evidence, the verdict is one that "a properly instructed jury acting judicially could reasonably have reached".

[4] There was no direct evidence in this case linking the cocaine to the appellant. The Crown's case rested on circumstantial evidence, which included the following: (1) about 26.92 grams of crack cocaine were situated in plain view on the centre console of the car between the driver and the appellant, who was a passenger in the front seat of the car; (2) the drugs, contained in a small opaque grocery bag, were perched on the console atop two cell phones; (3) the grocery bag was knotted over its contents into a shape like a golf ball; (4) the drugs had a street value in excess of approximately $5,380; (5) the appellant was in the stopped vehicle for at least five minutes prior to his arrest; and (6) on his arrest, the appellant was found in possession of $270 in small denominations.

[5] This was evidence of the physical proximity of the drugs to the appellant, the degree of visibility of the drugs, the shared use of the vehicle at the time of the appellant's arrest, the quantity and value of the drugs seized, the size and nature of the bag containing the drugs, the presence of equipment – cell phones – normally used in drug trafficking, and possession by the appellant of monies in a form and amount consistent with drug trafficking.

[6] In combination, this evidence provided the basis on which the jury could properly infer knowledge and control of the crack cocaine by the appellant sufficient to establish his possession of the drugs.

[7] The appellant argues that because the jury acquitted him on a charge of possession of the proceeds of crime, the evidence of the money found on his person was of diminished evidential worth in assessing whether the Crown had met its burden to establish the appellant's knowledge and control of the drugs. He acknowledges, however, that this evidence is one factor to be taken into account in assessing the sufficiency of all the evidence of knowledge and control.

[8] In our view, the presence of the money on the appellant's person was one piece of circumstantial evidence available for consideration by the jury as pointing to the appellant's knowledge and control of the drugs.

[9] We note that the appellant did not testify. When considering the reasonableness of a verdict, this is a relevant consideration for this court: see R. v. Dell, 2005 5667 (ON CA), [2005] O.J. No. 863 (C.A.), at para. 35.

[10] There is no suggestion in this case that the trial judge erred in any way in his instructions to the jury. We are satisfied that the verdict was one that this properly instructed jury, acting judicially, could reasonably have rendered.

[11] The appeal from conviction is dismissed. The appellant's appeal from sentence is now moot. Accordingly, his sentence appeal is dismissed as abandoned.

"M. Moldaver J.A."

"E.A. Cronk J.A."

"Robert P. Armstrong J.A."