COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Masters, 2014 ONCA 556

DATE: 20140721

DOCKET: C55764

Simmons, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Masters

Appellant

Susan Magotiaux, for the respondent

Ingrid Grant, Duty Counsel

Heard: May 14, 2014

On appeal from the conviction entered by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, on May 31, 2012 and from the sentence imposed on June 19, 2012.

By the Court:

[1] Following a jury trial, the appellant was convicted of participating in the activities of a criminal organization to enhance the ability of the criminal organization to traffic in cocaine; trafficking in cocaine in association with a criminal organization; conspiracy to traffic in cocaine; trafficking in cocaine; possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking. He was sentenced to a total of four years’ imprisonment on the counts not involving a criminal organization; to two years’ imprisonment for trafficking in cocaine in association with a criminal organization and to one year imprisonment for participating in the activities of a criminal organization to enhance the organization’s ability to traffic in cocaine.

[2] With the assistance of duty counsel the appellant raises three issues on his conviction appeal and seeks leave to appeal sentence.

[3] For the reasons that follow, we allow the appellant’s appeal from his conviction for possession of marijuana for the purpose of trafficking, set aside this conviction and the related sentence, and order a new trial. We dismiss the balance of the conviction appeal, grant leave to appeal sentence, but dismiss the balance of the sentence appeal.

A. the conviction appeal

(1) Jury Instructions on Constructive Possession

(i) Background

[4] First, the appellant argues that the trial judge erred in his instructions to the jury in relation to the two possession for the purpose of trafficking charges because he failed to make it clear to the jury that to find that the appellant was in constructive possession of the prohibited substances, the jury had to be satisfied that the appellant had a measure of control over the prohibited substances and not simply control over the place where the prohibited substances were found.

[5] The appellant’s specific complaint about the trial judge’s instructions arises from the trial judge’s answer to a jury question about a charge of possession of the proceeds of crime, a count on the indictment of which the appellant was acquitted. That charge, and the possession for the purpose of trafficking charges, arose out of the execution of a search warrant at apartment 701, 421 Markham Road, Toronto on April 1, 2010.

[6] During the search of apartment 701, among other things, two bags of suspected crack cocaine were found in a dresser drawer in the master bedroom; another bag of suspected crack cocaine was found in a men’s jacket in the living room; a bag of suspected marijuana was found on top of a container in the bathroom; a bag of suspected marijuana was found on a computer desk in the living or dining room area and $555 in Canadian cash was found on the computer desk.

[7] Because this matter proceeded as an inmate appeal, we do not have access to transcripts of the evidentiary portion of the trial or of counsel’s closing addresses to the jury. Based on the record before us[^1], the live issues at the trial concerning the possession for the purpose of trafficking charges appear to have included: whether the appellant lived at the apartment where the search was conducted or was merely a visitor; whether the men’s jacket in which one of the bags of cocaine was found was obviously too large for the appellant[^2] and therefore may have belonged to someone else; and what inferences were to be drawn from that fact that a police video-recording of the execution of the search warrant had been lost.

[8] Concerning the latter issue, defence counsel at trial suggested that the loss of the video-recording could lead to a reasonable doubt about whether the prohibited substances had been planted and about whether still photographs of the fruits of the search had been staged to make it appear that the appellant had control of the prohibited substances.

[9] Before turning to our discussion of this issue, we will set out the factual background relating to it that we have gleaned from the record that we have.

[10] The appellant was present at the apartment when the search warrant was executed. Taking account of the time of day at which the search warrant was executed and the fact that the appellant was described as being dressed in a tank-top and boxer shorts, it was open to the jury to draw an inference that the appellant was in bed when the police first entered the apartment. It is not clear from the record before us whether other possible occupants of the apartment were present when the search warrant was executed[^3], but the police did observe a stroller[^4].

[11] In addition, evidence at trial indicated that officers had seen the appellant entering the building at 421 Markham Road on other occasions and, on at least one occasion, they had seen him entering apartment 701 with a key. Two driver’s licences bearing the appellant’s name were found in the apartment; one of the licences was found in the same dresser drawer as the two suspected bags of cocaine and bore the address: apartment 701, 421 Markham Road, Toronto. The other licence, found in a wallet in a pair of pants in the living room area bore an Eglinton Avenue East address. In the course of their search of the apartment, police also found certain documents bearing the appellant’s name: a bank statement, a passport, and an airline ticket. In addition, the police found two cell phones associated with the appellant on the computer desk where the bag of marijuana and the money was found. The appellant was identified as the subscriber of one of cellphone numbers; he was associated with use of the other cell phone in the wiretap evidence. At least two of the wiretaps provided some evidence capable of supporting an inference that the appellant had engaged in drug trafficking from the apartment.

(ii) The appellant’s position

[12] During the course of their deliberations, the jury asked the following question relating to the possession of proceeds of property obtained by crime count:

The jury requests clarification of the concept of constructive possession when cash is present in a shared space controlled by more than one individual.

[13] The appellant submits that in responding to the jury's question, the trial judge erred by instructing the jury that they could find the appellant had constructive possession of the money if they found that the appellant had control over the place where the money was found, while failing to instruct the jury specifically that it was necessary that the appellant also have an element of control over the money.

[14] The appellant points to the following instruction given after the trial judge read the question and s. 4(3) of the Criminal Code:

As the section indicates, a person is in what we call constructive possession of a thing when that thing is in a place over which he has control and the thing is there with his knowledge and consent.

Suppose, hypothetically, that a person occupies an apartment with one or more other persons and is aware of the presence of something in the apartment that is not his. Once he knows the thing is present and allows it to remain in the premises, over which he has control, albeit jointly with his roommate(s), then he is legally in possession of that thing. [Emphasis added.]

[15] As noted, the appellant contends that these instructions failed to emphasize the necessary element of control over the money. Further, the appellant invites us to draw the inference that, based on the trial judge’s answer to this question, the jury would not have understood that, in relation to the two charges of possession for the purposes of trafficking, the Crown had to prove beyond a reasonable doubt that the appellant had some element of control over the drugs found in the apartment. The appellant submits that the jury’s question demonstrates they were having some difficulty with the concept of constructive possession. There is no reason to believe they did not have the same difficulty in relation to the possession for the purpose of trafficking charges.

(iii) The Crown’s position

[16] The Crown responds with three submissions.

[17] First, the Crown submits that, in his original instructions to the jury dealing with possession, the trial judge charged the jury correctly on the necessary element of control required to constitute constructive possession. In relation to the constructive possession, the trial judge said:

The second means by which a person can be said to be in possession of a substance is when, for the use or benefit of himself or somebody else, he knowingly has a substance in the actual possession or custody of somebody else, or has it in some place. To be properly said to be in possession of a substance by this means, the person must also have some measure or (sic) control over the substance. This manner of possession is what we call constructive possession. [Emphasis added.]

[18] Further, when dealing the issue of joint possession, the trial judge reiterated the requirement for an element of control:

Several persons may have possession of a substance at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has a substance in his possession or custody, all of them are in possession of that substance, provided the person with actual possession has some control over the substance.[^5] Knowledge and agreement by the others who are not in actual possession of the substance is essential.

In relation to an accused, call him “A”, mere indifference to the actual possession by another person, “B”, or merely doing nothing in relation to “B’s” physical or actual possession of the substance is not enough to amount to possession on the part of “A.” [Emphasis added.]

[19] Second, the Crown submits that the trial judge’s answer to the jury’s question addressed the elements of both knowledge and control. After reading s. 4(3) of the Criminal Code to the jury, he told them that a person is in constructive possession of a thing “when that thing is in place over which he has control and the thing is there with his knowledge and consent.”

[20] Finally, the Crown submits that the roommate hypothetical described by the trial judge in his response to the jury’s question did not arise on the facts of this case because there was no evidence at trial of another adult occupant, or at least another male adult occupant, of the apartment.[^6] In the circumstances, no further elaboration on the element of control was required. For this submission, the Crown relied on her review of the trial Crown’s notes of his closing address.

(iv) Discussion

[21] We agree with the Crown’s submission that the trial judge’s original instructions on the issue of constructive possession were correct.

[22] However, in our view, the jury’s question raised not only the issue of constructive possession but also the possibility of joint possession.

[23] Considered in that context, we agree with the appellant that the trial judge’s response to the jury’s question about the possession of the proceeds of crime count failed to properly explain the necessary element of control over the money as opposed to simply control over the place where the money was found: see R. v. Bertucci (2002), 2002 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.) at p. 459. If the appellant was a joint occupant of the apartment, that fact, standing alone, did not necessarily give him control over an item or items belonging to, or in the possession of, another joint occupant of the apartment.

[24] In answering the jury’s question about the cash, the trial judge should have instructed the jury to consider whether the accused had an element of control over the item – and therefore the ability to consent to or “allow” the presence of the item in the jointly occupied apartment. He erred in failing to do so.

[25] In this regard, we acknowledge that, in relation to the possession for the purpose of trafficking charges, the other evidence capable of supporting an inference that the appellant had engaged in drug trafficking from the apartment was a potentially important factor the jury could consider in determining whether he had the requisite element of control over the drugs found in the apartment: R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.); aff’d [2006] 1 S.C.J. No. 26.

[26] Determining the impact of this error on the possession for the purpose of trafficking charges is somewhat problematic. The Crown contends that the question of joint possession based on joint occupation of the apartment did not arise on the evidence at trial because there was no evidence of another adult, or at least another adult male, occupants of the apartment. There are two difficulties with this submission.

[27] First, we do not have the full trial record before us to enable us to verify something the Crown submits based on a review of the trial Crown’s notes of his closing address (no evidence of another adult, or at least another adult male, occupant). Second, the jury’s question about “shared space controlled by more than one individual”, suggests that, on the jury’s view of the evidence at trial, the issue of joint occupation of the apartment was a live one.

[28] One response to these circumstances would be to order further transcripts and a further attendance by the parties. However, in reply submissions, duty counsel submitted that some of the Crown’s submissions appeared to invoke the proviso. Duty counsel advised caution in applying the proviso in the absence of a full trial record and where the appellant is not represented by counsel who would have a more fulsome knowledge of the record than duty counsel. In response to these submissions, the Crown indicated that it was her position that the trial judge had not erred and that, in the event an error was found, she would not be seeking to make further argument.

[29] Having reviewed the available record, we are of the view that the appeal with respect to the possession of marijuana for the purpose of trafficking conviction should be allowed but that the appeal with respect to the possession for the purpose of trafficking cocaine conviction should be dismissed.

[30] In relation to the possession of marijuana for the purpose of trafficking conviction, like the “cash” referred to by the jury in their question, the marijuana was found in what the jury described as “shared space controlled by more than one individual”.

[31] For reasons that we will explain in relation to the possession for the purpose of trafficking cocaine conviction, we think it likely that the jury concluded the appellant owned the drugs in the apartment and dealt with the possession for the purposes of trafficking counts before reaching the possession of proceeds of crime count. Standing alone, however, that likelihood does not permit us to conclude that the trial judge’s response to the jury’s question did not affect the jury’s deliberations on the possession of marijuana for the purposes of trafficking conviction.

[32] Concerning the possession of cocaine for the purpose of trafficking conviction, we reach a different conclusion. Taking account of all the circumstances, we see no air of reality to the possibility that the trial judge’s answer to the jury’s question affected the jury’s deliberations concerning whether the appellant was in possession of the crack cocaine found in a dresser drawer in the master bedroom. We reach that conclusion for four reasons.

[33] First, we consider it likely that the jury’s question related solely to count eight on the indictment, the possession of proceeds of crime charge. In their question, the jury asked for “clarification of the concept of constructive possession when cash is present in a shared space controlled by more than one individual (emphasis added).” On its face, the jury’s question appears to relate solely to the possession of the proceeds of crime charge.

[34] Second, based on the manner in which the trial judge charged the jury, we consider it likely that the jury resolved the possession for the purpose of trafficking charges before reaching the possession of proceeds of crime count.

[35] Somewhat unusually, the trial judge began his instructions on the specific counts in the indictment with count six, the possession of cocaine for the purpose of trafficking charge against the appellant. He dealt with the issue of possession when instructing the jury on this charge.

[36] The trial judge dealt with the remaining counts in the following order:

• count seven, the possession of marijuana for the purpose of trafficking charge against the appellant;

• counts four and five, the trafficking in cocaine charges against the appellant and his co-accused respectively;

• count three, the conspiracy to traffic in cocaine charge against the appellant and his co-accused;

• count one, the trafficking in cocaine in association with a criminal organization charge against the appellant and his co-accused;

• count two, the participating in the activities of a criminal organization charge against the appellant;

• count eight, the possession of the proceeds of property obtained by crime charge against the appellant.

[37] Significantly, the trial judge instructed the jury that if they made a finding of guilt on the possession of cocaine for the purpose of trafficking charge, they could use the fact that the appellant was in possession of cocaine when the search warrant was executed as circumstantial evidence in relation to other counts, for example the trafficking cocaine count against the appellant.

[38] Although we do not endorse the trial judge’s approach, in our view, it would have been obvious to the jury from this instruction, and from the order in which the trial judge dealt with the counts on the indictment in his jury instructions, that the trial judge intended the jury to proceed with their deliberations on the various counts in the order in which he charged them.[^7]

[39] Third, accepting that the jury was satisfied that the appellant was closely connected to the apartment, the other evidence at trial capable of supporting an inference that the appellant had engaged in drug trafficking from the apartment undoubtedly would have been a significant factor in the jury’s consideration of whether the appellant had some measure of control over the cocaine and marijuana found in the apartment when it was searched.

[40] Fourth, unlike the “cash” referred to in the jury’s question, and unlike the marijuana found in the living room and the bathroom, the crack cocaine in the drawer was not found in a common area of the apartment. Rather, it was found in a dresser drawer in the master bedroom lying on top of the appellant’s driver’s licence that bore the address of the apartment. In these circumstances, we see no factual nexus between the jury’s question and the crack cocaine found in the drawer. Taking account of this factor along with the foregoing three factors, we see no realistic possibility that the trial judge’s erroneous response to the jury’s question about the proceeds of crime charge infected the jury’s deliberations concerning the crack cocaine in the drawer.

[41] In the circumstances, in our view, the trial judge’s incomplete answer to the jury’s question was a minor error that does not give rise to a miscarriage of justice in relation to the possession of cocaine for the purpose of trafficking conviction.

[42] We are unable to draw the same conclusion in relation to the crack cocaine found in the men’s jacket in the living room. Although the joint possession problem may not arise, we have no basis for assessing the likelihood that the jury concluded it was the appellant’s jacket.

(2) Frailties of Voice Identification Evidence and Risks of Voice Comparison

[43] As his second ground of appeal, relying on R. v. Pinch, 2011 ONSC 5484, [2011] OJ. 5024, the appellant argues that the trial judge erred in failing to caution the jury about the frailties of voice identification evidence and about the difficulties inherent in engaging in voice comparisons to identify a speaker.

[44] The appellant submits that the issue of voice identification was important because much of the evidence at trial relating to the criminal organization, conspiracy and trafficking counts consisted of wiretap evidence allegedly implicating the appellant in these crimes.

[45] In this case, the trial judge told the jury that they could compare the voices on wiretaps in which the appellant had been identified with wiretaps in which he had not been identified and make their own determination of whether the appellant was the speaker. In addition, the trial judge told the jury that they could consider the opinion of the Patois interpreter identifying the appellant's voice. The appellant submits that the trial judge erred in failing to give the jury a strong caution about the dangers inherent in making voice comparisons and about the frailties of the Patois interpreter’s evidence.

[46] We do not accept this submission. In addition to the availability of voice comparisons and the evidence of the Patois interpreter, there was a significant body of other evidence at trial capable of implicating the appellant as one of the speakers on the wiretaps. This evidence included: the evidence of the appellant’s co-accused identifying the appellant as the speaker on some of the wiretaps; the discovery at the apartment of two of the cellphones associated with calls allegedly involving the appellant during execution of the search warrant; and self-identification by the appellant on several calls associated with at least one of his known telephone numbers.

[47] We agree that it might have been preferable for the trial judge to have cautioned the jury about the dangers inherent in voice comparisons and voice identification evidence. Such instructions might have included reference to the risk of relying on their own untrained ears, or those of a witness, none of whom had the benefit of equipment or training that would be available to an acoustic phonetician; the fact that witness confidence in voice identification does not make the identification reliable; the importance of considering the length and quality of the voice samples; the availability of high quality non-distorting playback systems; and, if applicable, the difficulties inherent in cross-racial voice identification: Pinch at para. 75.

Nonetheless, having regard to the other evidence implicating the appellant we are not satisfied that such a caution was mandatory in this case.

[48] As for the Patois interpreter's evidence, the trial judge cautioned the jury that the interpreter was not an expert on this issue and that it was for the jury to make their own determination.

[49] We would not give effect to this ground of appeal.

(3) The Quidley Ground of Appeal

[50] As his third ground of appeal, the appellant relies on R. v. Quidley, 2008 ONCA 501, [2008] O.J. No. 2498, and argues that the trial judge erred by failing to instruct the jury that the voice identification issue relating to the wiretaps could, on its own, raise a reasonable doubt.

[51] In support of this ground, the appellant points to the trial judge's instructions concerning out-of-court statements of an accused person and concerning findings of fact.

[52] In his instructions concerning out-of-court statements of an accused person, the trial judge told the jury that in order to use the wiretap evidence of the appellant's voice on a recording they must first find as a fact that the voice on the particular recording was that of the appellant. The trial judge instructed the jury as follows:

Before you can make any use whatsoever of a statement attributed to one of the accused, you must first find as a fact that he made the statement. Unless you find as a fact that the voice you hear on the recording is that of the accused you are then considering, you must disregard the intercept and make no use of it whatsoever in deciding the case against that accused.

I stress again that before making use of any statement attributed to the accused you are then considering, you must first find as a fact that the voice you hear is the voice of the accused.

[53] In his instructions concerning findings of fact, the trial judge told the jury that to find something as a fact, they had to be confident that the fact was correct but need not apply the proof beyond a reasonable doubt standard.

[54] The appellant submits that, having instructed the jury in this fashion, the trial judge was obliged to instruct the jury specifically that the voice identification issue could give rise to a reasonable doubt.

[55] According to the appellant, in the absence of such an instruction, there was a risk that the jury would find the appellant guilty without being satisfied beyond a reasonable doubt that he was the perpetrator of the offence at issue.

[56] We do not accept this submission. When the trial judge’s instructions to the jury are considered as a whole, we are satisfied that the jury would have understood that the elements of each offence had to be proven beyond a reasonable doubt and that identity was an element of each offence.

[57] In this regard, we note that the trial judge gave the jury standard reasonable doubt instructions and standard instructions in relation to each offence indicating that the jury had to be satisfied that each element of the offence had been proven beyond a reasonable doubt.

[58] Further, as part of his reasonable doubt instructions, the trial judge made it clear to the jury that they were to consider the whole of the evidence, and any absence of evidence, in determining whether guilt had been proven beyond a reasonable doubt.

[59] Significantly, in our view, the trial judge gave his instruction about making findings of fact in the context of his instructions that the Crown need only prove the elements of the offence beyond a reasonable doubt, and that the jurors need not be unanimous on the factual route to guilt. This portion of the trial judge’s reasonable doubt instruction reads as follows:

It is not enough for you to believe the accused you are then considering is probably or likely guilty. In such case, you must find him not guilty, because the Crown would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probable or likely guilty is not proof of guilt beyond a reasonable doubt. In this context, you should remember four things.

First, the Crown need not prove every individual fact it alleges beyond a reasonable doubt; it need only prove the essential elements of the offence beyond a reasonable doubt. So, when I speak of “finding something as a fact”, I mean only that you are confident enough that the fact is true or correct that you are prepared to rely upon it to decide this case, but I am not suggesting that you have to be satisfied beyond a reasonable doubt of that fact.

Second, while you must be unanimous in your verdicts, to reach a unanimous verdict you need not all agree on the facts underpinning your individual decisions. Provided you all agree that all essential elements of the offence you are then considering have been proven beyond a reasonable doubt, you are entitled to return a verdict. Provided all twelve of you were to be satisfied beyond a reasonable doubt that the Crown had proven the essential elements of the offence, it would not matter that you had reached that decision by different factual routes, so to speak.

[60] In our view, these instructions went a long way in making it clear to the jury that findings of fact are not an end in themselves; rather, they are simply stepping stones to a verdict. The instructions would also have made it clear that a guilty verdict requires proof on a reasonable doubt standard.

[61] In addition, when speaking about out-of-court statements of an accused, and the recordings specifically, the trial judge told the jury not to consider them in isolation, but rather to take them into account together with all the other evidence in deciding the case. The trial judge said:

Lastly, on this issue of the recordings, although the recordings form a major part of the evidence in this case, do not consider them in isolation. Take them into account along with all the other evidence in making your decisions. It is for you to decide how much or little you will believe and rely upon the recordings in deciding the case.

[62] Further, although the trial judge did not refer to identity as such as being an element of any particular offence, he made it clear to the jury by the manner in which he characterized the elements of all the offences, that the accused’s identity as a perpetrator was a part of the elements of each offence that had to be proven beyond a reasonable doubt. For example, when setting out the elements of conspiracy to traffic in cocaine, the trial judge described element number three as, “Was the accused a member of the conspiracy?” Further, when describing the elements of trafficking in cocaine in association with a criminal organization, the trial judge described element number one as, “Did the accused traffic in cocaine?”

[63] In Quidley, the trial judge instructed the jury specifically that voice identification need not be proven beyond a reasonable doubt because it is not an essential element of the offence – and that it need only be proven on a balance of probabilities. While acknowledging that there was nothing wrong in an instruction that voice identification need not be proven beyond a reasonable doubt, this court stated,

[The trial judge’s] decision to instruct the jurors that they must be satisfied on these matters on a balance of probabilities and the manner in which he put it to them, were problematic.

[64] One example of the trial judge’s instructions in Quidley reads as follows:

Voice identification is not something that must be established beyond a reasonable doubt because it is not an essential element of the offence. However, for any calls where the identity of the speaker matters, you should be satisfied that the speaker has been identified to a probability. In other words, that the evidence establishes that it is more probable than not that the speaker is a particular identified individual.

In any event, it is you that must be satisfied of the voice identification on the balance of probabilities – more probable than not – in any case where voice identification matters. You make that determination from a consideration of all of the evidence. Frailties in the voice identification go to the weight you are prepared to give the evidence in determining if someone’s voice has been identified.[^8]

[65] In this case, the trial judge did not instruct the jury specifically that voice identification need not be proven beyond a reasonable doubt. Rather, he told them that before they could use a particular recording against the appellant they had to find as a fact that it was the appellant’s voice on the recording. Although the trial judge also told the jury that the Crown need not prove all facts it alleged beyond a reasonable doubt and that the reasonable doubt standard applied only to the essential elements of an offence, he made it clear to the jury that identity was an essential element of each offence.

[66] Considering the trial judge’s instructions as a whole, we are satisfied that the jury would have understood that the accused’s identity as a perpetrator of each offence had to be proven beyond a reasonable doubt and that they would be required to acquit the appellant if not satisfied beyond a reasonable doubt that he was a perpetrator.

B. The sentence appeal

[67] Turning to the appellant's sentence appeal, the appellant submits that in his Kienapple[^9] ruling the trial judge identified only two matters that distinguished count one on the indictment (participating in the activities of a criminal organization), from count two (trafficking in cocaine in association with a criminal organization).

[68] The first matter identified by the trial judge related to a telephone call in which the appellant indicated he was taking “stuff” away from an associate’s apartment prior to the execution of a search warrant. The trial judge concluded the “stuff” was contraband.

[69] The second matter related to a conversation between the appellant and an associate concerning how to deal with some other people “selling food” on “the block”. The appellant told his associate:

Those boys, you just stab… You just deal with them cold… Just stab and bust his face and see what he’s all about.

[70] The appellant contends that these two matters did not warrant an additional consecutive sentence of one year imprisonment for the charge of participating in the activities of a criminal organization.

[71] We do not accept this submission. On our review of his reasons, the examples the trial judge gave to distinguish the charge of participating in a criminal organization from the charge of trafficking cocaine in association with a criminal organization were just that – examples. He was not purporting to itemize every act that might distinguish the two charges. In any event, as we read his reasons, the trial judge determined what was effectively a global sentence for the criminal conduct at issue and then apportioned the sentence among the various offences. We see no error in this approach; nor are we persuaded that the one year consecutive sentence on count one of the indictment is unfit.

[72] As already noted, based on our conclusion concerning the first ground of the conviction appeal, we have set aside the sentence on count seven of the indictment, possession of marijuana for the purpose of trafficking. In relation to count six, possession of cocaine for the purpose of trafficking, we relied only on the evidence of the cocaine in the drawer to uphold the conviction; we did not rely on the evidence of the cocaine in the men’s jacket. In these circumstances, we would reduce the sentence imposed on the possession of cocaine for the purpose of trafficking charge somewhat to reflect the reduced quantity of cocaine. We know only that approximately three ounces of crack cocaine was found in the apartment; we do not know the quantity in each bag. In the circumstances, we would allow the sentence appeal on count six, and vary the sentence of imprisonment from one year to 10 months, all other terms of the sentence imposed to remain the same.

C. Disposition

[73] Based on the foregoing reasons, the appeal is allowed in part, the conviction and sentence for possession of marijuana for the purpose of trafficking is set aside, and a new trial is ordered on count seven of the indictment. The balance of the conviction appeal is dismissed. Leave to appeal the balance of the sentence imposed is granted, the sentence on count six is varied from one year imprisonment to ten months’ imprisonment, all other terms of the sentence imposed to remain the same and the balance of the sentence appeal is dismissed.

[74] For the sake of clarity, we observe that because the appellant received concurrent sentences, this disposition does not affect the total global sentence of seven years’ imprisonment the trial judge determined was appropriate, nor does it affect the sentence of three years’ imprisonment imposed after giving credit for presentence custody.

Released:

“MT” “Janet Simmons J.A.”

“JUL 21 2014” “M. Tulloch J.A.”

“P. Lauwers J.A.”

[^1]: The record before us includes transcripts of the pre-charge conferences, of the trial judge’s instructions to the jury, of the trial judge’s post-charge discussions with counsel and of the trial judge’s sentencing reason together with copies of numerous exhibits.

[^2]: In pre-charge discussions at p. 179 of the appeal book, defence counsel at trial stated there was no evidence the men’s jacket belonged to the appellant. Defence counsel said the evidence of one of the officers was that the jacket was likely big for the appellant but that the officer did not know how the appellant wears his clothes.

[^3]: In oral submissions, the Crown submitted that the trial judge’s instructions at p. 250 of the appeal book indicate that the appellant was the sole occupant of the apartment when the search warrant was executed. We have been unable to locate any such reference in the record before us. We believe the Crown may have surmised this from the trial Crown’s notes of his closing address.

[^4]: Reference to the stroller appears in pre-charge discussions at pp. 179-181 of volume 1of the appeal book. During this exchange, defence counsel at trial appeared to be suggesting that some of the appellant’s clothing was found on the stroller.

[^5]: This language diverges somewhat from the language used in David Watt, Watt’s Manual of Criminal Jury Instructions, (Toronto: Thompson Carswell, 2005)

[^6]: This submission may have been directed at least in part at defence counsel’s argument that the jacket in which marijuana was found was obviously too large for the appellant and thus may have belonged to someone else. The trial judge did not summarize this aspect of the trial Crown’s closing in his charge when setting out the position of the Crown.

[^7]: In pre-charge discussions with counsel, the trial judge stated his view that it made sense for the jury to consider the counts in a particular order: pp. 116-118.

[^8]: Quidley, at para. 16.

[^9]: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.