CITATION: R. v. Watson, 2011 ONCA 437
DATE: 20110607
DOCKET: C49399
COURT OF APPEAL FOR ONTARIO
Laskin, Juriansz and MacFarland JJ.A.
Her Majesty The Queen
Respondent
and
Martin Donald Watson
Appellant
Howard L. Krongold, for the appellant
S. Marinier and D. Littlefield, for the respondent
Heard and released orally: April 26, 2011
On appeal from the conviction and sentence imposed by Justice Dianne M. Nicholas of the Ontario Court of Justice dated May 14, 2008 and May 27, 2008, with reasons for conviction reported at (2008), 2008 ONCJ 241, 77 W.C.B. (2d) 372.
Laskin J.A.:
[1] Martin Watson and Trevor Provost were charged with a series of drug and gun offences. They were tried in the Ontario Court of Justice before Nicholas J. Both were found guilty of possession of cocaine and crack cocaine for the purpose of trafficking, possession of a loaded prohibited firearm, and several related offences.
[2] Watson and Provost appealed their convictions, and their appeals were heard together. At the conclusion of oral argument, in a brief oral endorsement, we dismissed Provost’s appeal.[^1] We advised counsel for Watson and the Crown that Watson’s appeal was allowed, his convictions set aside and a new trial ordered, and that reasons would follow. These are the reasons.
[3] As will be apparent, the trial judge erred in two ways. First, on the central issue of possession, she reversed the burden of proof. Second, she improperly devalued Watson’s credibility. These two errors undermine her finding of guilt and warrant a new trial.
A. Background
[4] Watson was a tenant in an Ottawa apartment building. One June evening in 2007, around 11:00 p.m., a police officer and two community service officers responded to noise complaints coming from the apartment unit Watson occupied.
[5] The officers knocked on the door of the unit. Provost opened the door and as he did so, one of the officers noticed a handgun on the kitchen table. Provost was handcuffed and arrested. The police officer then went over to the kitchen table and, beside the gun, found eleven pieces of crack cocaine individually knotted in a white plastic bag, powdered cocaine and two marijuana joints. An expert testified that the crack and powdered cocaine were intended for trafficking.
[6] During this entire incident, Watson was asleep on the balcony of the apartment. The police officer found him, roused him from his sleep and arrested him.
[7] Watson testified at trial. He admitted that he was a crack user but said that he did not deal drugs out of his apartment. He said that the night before he was arrested, he was smoking crack in his apartment with a man named Guy Parent, a life-long drug addict.
[8] Watson claimed that while he was asleep, Provost must have come to his apartment with the drugs and handgun, and that Parent must have let him in. Watson said he knew nothing about the drugs or the handgun found on the kitchen table.
[9] In finding Watson guilty, the trial judge rejected his evidence. She found that he was not a truthful witness and that his defence had “no air of reality”.
B. Analysis
(i) The trial judge reversed the burden of proof on the issue of possession
[10] For Watson, the principal issue at trial was whether he was in possession of the drugs and gun. To prove possession, the Crown had to prove knowledge and control. There was no direct credible evidence that Watson knew of Provost’s presence in the apartment or knew about the drugs and gun on the kitchen table. Thus, the Crown’s case against Watson was entirely circumstantial.
[11] The trial judge had to determine, from the evidence as a whole, whether she could reasonably infer that Watson knew Provost was dealing drugs from the apartment and was armed with a gun, and whether he permitted Provost to do so. The trial judge gave lengthy reasons for her decision. In parts of her reason, she correctly said that she could infer Watson’s possession from his occupancy of the apartment unit.
[12] However, in several other parts of her reasons, the trial judge said that, because of his tenancy, Watson was legally deemed to have knowledge and be in possession of the drugs and gun unless he could rebut that presumption. Three passages from the trial judge’s reasons — at paras. 6, 22 and 42 — show that she placed the burden on Watson to prove that he was not in possession:
On the issue of whether there is specific significance to be accorded to the fact that one of the individuals is a tenant and the other is not, Bryden’s evidence was that drug traffickers certainly do not hold or reside at a specific address for any length of time. This is significant because certain presumptions, although rebuttable might apply to Watson, who is the tenant, with respect to possession.
As the tenant, Watson is legally deemed to be in possession unless, on a thorough review of the evidence, the Court deemed otherwise.
Watson is deemed to have knowledge by reason of his tenancy as described above. His evidence does not remove any doubt with respect of his knowledge, possession and control.
[13] These passages reflect a clear error of law. A rebuttable presumption of possession because of tenancy or occupancy does not exist at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Moreover, this error is not an isolated misstatement. The trial judge repeated the error three times in her reasons. Thus, although the trial judge correctly approached the question of Watson’s possession in some parts of her reasons, this error is evident in other parts of her decision and it taints her finding of possession. As a result, this finding must be set aside.
(ii) The trial judge improperly devalued Watson’s credibility
[14] Watson’s evidence was exculpatory. If the trial judge accepted his evidence or found that it raised a reasonable doubt, she was bound to acquit him. But, as I have said, she rejected his evidence. In doing so, however, she improperly devalued his credibility. She did so in two ways: She found that the defence had failed to comply with the rule in Browne v. Dunn, (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) and she found that Watson’s evidence was entitled to less credence because he was “fed” answers in his examination-in-chief. In both respects, the trial judge erred.
(a) The rule in Browne v. Dunn was not violated
[15] The trial judge seems to have found that defence counsel’s failure to comply with Browne v. Dunn adversely affected Watson’s credibility. She stated the following at para. 21 of her reasons:
[Watson] claims not to have known that Provost was in his apartment until he got up and was brought into the hallway by the officer. There is no air of reality to this evidence. When he was moved into the hallway he saw Provost, Parent and Sasha in the hallway and asked them “where the hell did you guys come from?” He said that when he was brought to jail he had an injury on his foot and believes that he had been hit with a baton, although he didn’t see the officer do it. Again, the rule in Browne v. Dunn was breached in that none of this was ever suggested to Constable Lord.
[16] The main problem with this passage is that the trial judge simply got the evidence wrong. Watson never said, “Where the hell did you guys come from?” If he had, it could have been viewed as evidence of innocence. However, Watson merely said that he thought this when he saw Provost, Parent and Sasha in the hallway as he was being taken from the balcony.
[17] The trial judge’s misapprehension of this evidence prejudiced Watson. The trial judge’s comment in the passage above suggests that she would have expected Constable Lord, the police officer on the scene, to have heard the statement if Watson had said it. The trial judge apparently devalued Watson’s credibility because Constable Lord was not given the opportunity to refute the statement.
[18] A secondary problem with this passage is that the injury on Watson’s foot was not relevant to the issues in the case and did not require adherence to Brown v. Dunn.
(b) Watson was not “fed” answers during his examination-in-chief
[19] The trial judge also held that she was giving less credence to Watson’s evidence because he was “fed” many answers during his examination-in-chief. In other words, too many questions were leading:
The examination in-chief of Mr. Watson, contained several leading or suggestive questions. Although the Crown did not object at the time, the answers to these questions have less probative value, in my view, because I formed the opinion, during the examination, that he was essentially being fed many of the answers.
[20] The record does not support the trial judge’s criticism. Defence counsel asked very few leading questions and those that she did ask were quite permissible, as they were on uncontroversial matters.
C. Conclusion
[21] The trial judge reversed the burden of proof on the central issue of possession and improperly devalued Watson’s credibility. These errors taint Watson’s convictions.
[22] Accordingly, the appeal is allowed, the convictions are set aside and a new trial is ordered.
“John Laskin J.A.”
“I agree R.G. Juriansz J.A.”
“I agree J. MacFarland J.A.”
RELEASED: June 07, 2011
[^1]: Provost also appealed his sentence. We dismissed his sentence appeal.