COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bryan, 2013 ONCA 97

DATE: 20130215

DOCKET: C54255

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bryan

Appellant

Tina Yuen, for the appellant

Cindy-Lynn Afonso, for the respondent

Heard: February 11, 2013

On appeal from the convictions entered on May 9, 2011 by Justice J.D. Takach of the Ontario Court of Justice.

ENDORSEMENT

Introduction

[1] Following a trial by judge alone, the appellant was convicted of possession of cocaine for the purpose of trafficking, possession of marihuana in an amount not exceeding 30 grams and possession of the proceeds of crime of a value not exceeding $5,000. The trial judge sentenced the appellant to 13 months’ imprisonment on each count, concurrent, and imposed various ancillary orders.

[2] The appellant appeals from his convictions on the sole ground that the verdicts are unreasonable. At the conclusion of oral argument on behalf of the appellant, this court dismissed the conviction appeal, with reasons to follow. These are those reasons.

Discussion

[3] The appellant argues that the verdicts are unreasonable because they were based, in effect, merely on his proximity to concealed drugs (cocaine and marihuana) and money discovered by the police in a rental car driven by the appellant. We do not accept this submission.

[4] We conclude that on the whole of the circumstantial evidence in this case, the verdicts are ones that a properly instructed jury, acting judicially, could reasonably have rendered. In particular, on this record, a properly instructed jury could reasonably conclude that the appellant’s guilt was the only rational conclusion. See R. v. Biniaris, 2000 SCC 15; R. v. Beaudry, 2007 SCC 5; R. v. R.P. (2012), 2012 SCC 22, 282 C.C.C. (3d) 435 (S.C.C.).

[5] The trial judge’s reasons indicate that he was alive to the required elements to establish possession: knowledge of and control over the contraband in question. The only issue in this case was whether the appellant knew of the contraband that was present in the centre console and the door compartment on the passenger side of the rental car he was driving. The trial judge’s reasons confirm that he appreciated that suspicion of guilt, by itself, was insufficient to establish the appellant’s knowledge of the drugs and money to the requisite criminal standard of proof.

[6] The appellant did not testify at trial. In aid of his defence, he called one witness – Mustafa Kulom – an admitted drug dealer, who essentially testified that the drugs and money seized by the police belonged to him and that he had temporarily loaned his rental car to the appellant – a man he barely knew – while, unbeknownst to the appellant, the drugs and money were in the vehicle.

[7] For cogent reasons that he detailed, the trial judge rejected Mr. Kulom’s explanation for the presence of the contraband in the rental car when the appellant drove it and his claim that the appellant had no connection to the contraband. We see no error in the trial judge’s credibility-based assessment of Mr. Kulom’s evidence. It was for the trial judge to determine how much credit, if any, should be given to Mr. Kulom’s version of events.

[8] As the trial judge observed, on rejection of the critical features of Mr. Kulom’s testimony, there was “no evidence before the court as to why the accused was in a motor vehicle possessed with drugs and proceeds of crime.”

[9] Having rejected the salient aspects of Mr. Kulom’s evidence and having concluded that it did not raise a reasonable doubt, the trial judge reviewed the evidence relied on by the Crown, concluding that it “admit[ted] of nothing other than the culpability of the accused” and that it was “inconsistent with any other finding”. The issue, therefore, is whether the evidence that the trial judge did accept grounds his holding that knowledge by the appellant of the contraband was the only rational conclusion in all the circumstances.

[10] In our view, the trial judge’s conclusion is firmly anchored in the evidentiary record. The evidence at trial established a constellation of factors that, taken together, support the inference of knowledge by the appellant of the presence of drugs and cash in the car he was driving.

[11] In addition to the factors detailed at paragraph 30 of his reasons, the trial judge observed that the quantity and value of the seized drugs made it inconceivable that the drugs would be casually entrusted, by an admitted drug dealer, to someone who did not know what was in the vehicle. We agree.

[12] Moreover, when the car was in fact stopped, the appellant was using his cell phone, which then rang continuously during the interval when he was detained by the police at the roadside (10 missed calls were recorded). This is consistent with individuals seeking to engage in drug transactions. In addition, two cell phone charger cords were clearly visible in the vehicle, and accessible to the appellant, on the centre console next to the driver’s seat. It was in this console that the police discovered 35 grams of cocaine (with a value of approximately $1,500 - $2,000), a baggie of marihuana, $775 in cash and two more cell phones.

[13] Viewed cumulatively, we are persuaded that these factors were sufficient to support the inference of the appellant’s knowledge of the contraband drawn by the trial judge and his holding that the only rational conclusion was that the appellant, in some fashion, was “a party to Kulom’s activities.” At the end of the day, while the Crown’s case against the appellant was not overwhelming, there was an evidentiary foundation to support the convictions. In these circumstances, it cannot be said that the verdicts are unreasonable.

Disposition

[14] Accordingly, the conviction appeal is dismissed. Counsel agree and jointly submit that the sentence imposed by the trial judge on the conviction for possession of marihuana (13 months’ imprisonment, concurrent to the sentences imposed on the other counts) should be varied to six months’ imprisonment, concurrent, to convert the sentence imposed on this count to a legal sentence. We agree and so order.

“E.A. Cronk J.A.”

“G.J. Epstein J.A.”

“P. Lauwers J.A.”