Court of Appeal for Ontario

Citation: R. v. Yowfoo, 2013 ONCA 751

Date: 2013-12-12

Docket: C55455

Before: Goudge, Juriansz and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

Clinton Yowfoo Appellant

Counsel: Clayton Ruby and Gerald Chan, for the appellant Bradley Reitz, for the respondent

Heard: November 27, 2013

On appeal from the conviction entered on November 24, 2011 and the sentence imposed on December 16, 2011 by Justice Barry G.A. MacDougall of the Superior Court of Justice, sitting without a jury.

By the Court:

[1] On November 24, 2011, the appellant was convicted by a judge sitting alone of three drug offences (possession of cocaine, methamphetamine, and heroin for the purpose of trafficking), seven firearms related offences and two other unrelated offences. He appeals his convictions for the drug and firearms offences only.

[2] The sole issue at trial with respect to these offences was whether the appellant had constructive possession of the drugs and firearms found by the police in a locked closet in a house at 22 Mendota Road.

[3] The case against the appellant was entirely circumstantial.

[4] The appellant does not contest the following facts. He was actively involved in a drug trafficking enterprise with two associates, Mac and Ngo. During the course of police surveillance of the enterprise prior to the alleged offence, he was observed in contact with Mac and Ngo on numerous occasions. On August 6, 2009, both Mac and Ngo were arrested. The police searched their residences and found large quantities of drugs and cash.

[5] Two days later, on August 8, 2009 the police arrived at 22 Mendota Road at 4:30 p.m. The appellant’s car was in the driveway, although that was not his residence. Some 53 minutes later, the appellant emerged from the house carrying two bags containing a number of items consistent with drug trafficking. He was arrested, but escaped after a struggle, and fled. The police discovered the bags and the drug related material in his car. The police then searched the house and found it basically empty, save for a locked closet. When they broke it open, the closet contained the drugs and firearms involved in these charges. These items could have been worth up to $1.7 million. The house at 22 Mendota Road was a “stash house”. The appellant had a key for the house, and packaging for the brand of lock on the closet, although there was no evidence that he had a key to the locked closet.

[6] As the trial judge properly acknowledged, the burden on the Crown in this circumstantial case was to establish that the only reasonable inference available from the evidence was that the appellant had knowledge and control, and therefore constructive possession of, the items seized from the locked closet.

[7] The trial judge concluded that the Crown had done so, and found the appellant guilty. He rejected the defence argument that it was also reasonable to infer that the appellant either did not know of, or had no control over the contents of the locked closet.

[8] In this court, the appellant renews this argument. He emphasizes that there was no evidence that the appellant had a key for the locked closet, that the appellant was actively involved in the drug trafficking enterprise with Mac and Ngo, that in the period prior to his arrest he was observed with Mac and Ngo on numerous occasions, that two days before the appellant’s arrest, the police arrested Mac and Ngo and searched their residences where large quantities of drugs and cash were discovered, that 22 Mendota Road was a “stash house” for drug trafficking, and that the appellant removed drug trafficking items from the house leaving it empty save for the contents of the locked closet.

[9] The appellant argues that on this circumstantial evidence, a reasonable inference is available that the appellant knew what had happened to Mac and Ngo and went to the Mendota Road “stash house” to remove items related to their drug trafficking enterprise before the police arrived. One could then reasonably infer that because he left only the contents of the locked closet, he either had no control over the locked closet or did not know what it contained.

[10] The trial judge rejected this argument because the appellant did not testify and there was no evidence that when he went to the stash house he knew what had happened to Mac and Ngo two days before.

[11] The appellant argues that the trial judge erred by requiring direct evidence that the appellant knew what happened to Mac and Ngo, but failed to address whether the circumstantial evidence was sufficient to permit this conclusion to be reasonably inferred.

[12] In our view, this argument has much force. Indeed, in this court, the Crown candidly and explicitly acknowledged that the reasonable inference argued for by the appellant was indeed available from the circumstantial evidence.

[13] Once it can reasonably be inferred that the appellant knew on August 8 what had happened to Mac and Ngo two days before, the rest follows. It is reasonable that he went to the stash house to clear it of all drug trafficking items before the police arrived, and since he left behind the contents of the locked close, he either had no access to it and thus no control over it, or he did not know of its contents.

[14] In our opinion, particularly in light of the Crown’s concession, the conclusion of the appellant’s knowledge and control of the contents of the locked closet was not the only reasonable inference available from the circumstantial evidence.

[15] We would therefore allow the appeal and direct an acquittal on these charges. If necessary, the court can be spoken to about the consequences of this conclusion for the sentence imposed at trial, about which no submissions were made in this court.

Released: December 12, 2013 (“S.T.G.”)

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”

“Gloria Epstein J.A.”