Court of Appeal for Ontario

CITATION: R. v. Morrell, 2016 ONCA 878

DATE: 20161121

DOCKET: C61112

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Morrell

Appellant

Robert C. Sheppard, for the appellant

Lisa Csele and Melissa Insanic, for the respondent

Heard: November 18, 2016

On appeal from the conviction entered on August 28, 2015 and the sentence imposed on September 8, 2015 by Justice Michael P. O’Dea of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, Richard Morrell, was convicted of seven drug charges by O’Dea J. of the Ontario Court of Justice. He received a global sentence of three years’ imprisonment comprised of 14 months credit for pre-trial custody and 22 additional months’ incarceration. The appellant appeals the convictions and sentence.

[2] The drugs that formed the basis of the charges – cocaine, oxycodone, hydromorphone (a synthetic heroin), morphine, methamphetamine, codeine and ketamine – were found hidden in a garage located on the property owned by the appellant’s mother. In addition to her home and the garage, a variety store and gas bar were also on the property. The appellant worked part-time at the store.

[3] After 16 months of surveillance, the police obtained a search warrant. The appellant was inside the garage, which had been the focal point of the surveillance, when the search warrant was executed. The police found a substantial quantity of drugs inside a leaf blower in the garage, along with empty baggies and a scale.

[4] The main issue at trial was whether the appellant was in possession of the drugs. The evidence was circumstantial; although the appellant was in the garage, there were no drugs on his person.

[5] The trial judge concluded that the appellant had knowledge of the drugs in the leaf blower and that he exercised primary control over them for the purpose of distribution.

[6] On the conviction appeal, the appellant contends that the trial judge erred in his assessment of the circumstantial evidence and rendered an unreasonable verdict.

[7] We are not persuaded by this submission. The trial judge properly instructed himself in accordance with R. v. Griffin, 2009 SCC 28:

In regard to the circumstantial nature of the case, I must be satisfied beyond a reasonable doubt that, on the whole of the evidence, the inference I am asked to draw respecting the elements of possession point to possession by the accused in the absence of any other reasonable inference.

[Emphasis in original.]

[8] The trial judge drew the inference that every person who went to the garage during police surveillance did so for an illegitimate purpose – to buy drugs. He referred to the following factors in drawing this inference:

• the nature and quantity of the drugs seized from the garage;
• the drugs were well hidden and the exterior of the garage was monitored from within;
• there was a scale commonly used by drug dealers in the garage;
• no person who went to the garage was there much longer than five minutes;
• by its set up and clutter, the garage would likely not be used as a social gathering spot;
• by its set up and clutter, no alternate public use (to storage) can be inferred without considerable speculation;
• nothing seen about the exterior setup of the garage supports an alternate (legitimate) public use; and
• there is no evidence suggesting any of the contents in the garage were for sale and none of the persons leaving were seen to be carrying any item that might have come from the garage.

[9] In our view, this constellation of evidence easily supports the trial judge’s reasoning on this issue.

[10] The trial judge’s final inference, namely, that the appellant was the person engaged in the distribution of drugs, was also strongly supported by the evidence, including:

• the appellant was present in the garage when the police executed the search warrant;
• the appellant was present in the garage on another occasion when the police saw suspicious activity consistent with drug transactions; and
• the appellant’s truck was always parked at the garage on days when people were making quick visits to it.

[11] On the sentence appeal, the appellant contends that a global sentence of three years was excessive; a fit sentence would have been in the upper reformatory range.

[12] We disagree. The nature (hard drugs) and quantity (substantial) of the drugs seized in the garage and the trial judge’s concern about drugs in Vienna, Ontario (“a very, very small community within this County”) justified the sentenced he imposed.

[13] The appeal is dismissed.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”