COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biggs, 2016 ONCA 910

DATE: 20161201

DOCKET: C61920

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Eric Biggs

Appellant

Matthew R. Gourlay, for the appellant

Brendan Gluckman, for the respondent

Heard: November 16, 2016

On appeal from the convictions entered by Justice John A. Desotti of the Superior Court of Justice on November 27, 2015.

MacPherson J.A.:

A. Introduction

[1] The appellant, David Biggs, was convicted of possession of methamphetamine for the purpose of trafficking, possession of marijuana, and failure to comply with a probation order (x 3) following a trial before Desotti J. of the Superior Court of Justice in Sarnia. The appellant received a global sentence of two years plus one day for these offences.

[2] The appellant appeals the convictions. The central issue on the appeal is whether there was sufficient evidence to entitle the trial judge to determine that the appellant was in constructive possession of methamphetamine found above a light fixture in a bedroom where the appellant was sleeping. The appeal turns on whether the trial judge correctly applied the test for constructive possession set out by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

B. facts

(1) The parties and events

[3] In November 2014, Detective Constable Jason LeBlanc conducted an investigation and surveillance at 132 Mayfair Drive in Sarnia, the residence of James Rodey. Constable LeBlanc viewed two short-term visits to the property that he believed were drug-related. On November 12, he obtained a search warrant; in the early morning of November 13, the search warrant was executed at the property.

[4] There were seven people in the residence. Mr. Rodey was in his bedroom on the main floor. The appellant was found in a bedroom in the basement. He was asleep on a bed. Two women were sitting or sleeping in chairs in the bedroom. Another man and woman were in a common area in the basement.

[5] The appellant was searched. The police found a sex toy and a glass pipe typically used to smoke methamphetamine in his pocket.

[6] In the basement bedroom, the police found the appellant’s wallet on a coffee table/TV stand. On this stand, there were also a number of cellophane jewellery bags and a letter to the appellant from Ontario Works (the address on the letter was a local mall that had an Ontario Works office in it). The police also found three more glass pipes on a dresser in the bedroom. A pornographic DVD was lying on top of the television. A small plastic bag containing marijuana was on the floor next to the TV stand. There was a small closet in the bedroom. There was some men’s clothing in the closet.

[7] Det. Cst. LeBlanc noted a recessed light fixture in the closet that did not seem to be positioned properly. He removed the fixture and found a sandwich bag containing three smaller bags. Each of the smaller bags contained about a quarter ounce (eight grams) of methamphetamine. Expert evidence established a street value for the drugs, as packaged, of $1,200-$1,650.

[8] The bags from above the light fixture were tested for fingerprints; the results were negative. There was no evidence to link the clothing found in the closet to the appellant.

(2) The judgment

[9] The main charges against the appellant were possession of marijuana and possession of methamphetamine for the purpose of trafficking contrary to ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[10] Possession, as relevant to this appeal, is defined in s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person ….

[11] The trial judge reviewed several of the leading cases dealing with constructive possession. His starting point, correctly in my view, was Morelli where Fish J., after setting out s. 4(3)(a) of the Code, said, at para. 17:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

[12] The trial judge then reviewed the evidence and reached this conclusion:

I am more than satisfied beyond a reasonable doubt that the accused David Biggs was – who occupied the basement bedroom in some semblance of familiarity, had constructive possession with inferred knowledge of the drug methamphetamine hidden behind the recess light in the closet in the same bedroom.

The key factors that led to this conclusion included:

• the “lived-in look” of the bedroom, including coats and shirts hung on hangers in the closet;

• the appellant’s wallet was left in the open on the coffee table/TV stand;

• the Ontario Works letter in the bedroom;

• the sex toy in the appellant’s pocket and the pornographic DVD in the bedroom indicating “at least some forethought and planning”;

• the glass pipes on the appellant’s person and in the bedroom and the jewellery bags found on the coffee table/TV stand strongly support the inference that the appellant was both using and dealing in methamphetamine; and

• the hidden drugs behind the recessed light in the closet suggest inferred knowledge of those drugs by the appellant; if the owner of the hidden drugs were someone else, “this would seem to be [a] most unusual occurrence in the drug culture to have three potential users, and three potential thieves [the appellant and the two women with him in the bedroom], proximate to your valued drug stash.”

[13] The trial judge entered convictions on all five charges against the appellant.

[14] The appellant appeals the convictions on the basis that the trial judge’s finding of possession was unreasonable.

C. issue

[15] The sole issue on the appeal is whether the conviction of the appellant on the charge of possession of methamphetamine for the purpose of trafficking was unreasonable.[^1]

D. analysis

[16] In R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, Doherty J.A. said, at para. 30:

Proof of knowledge … demands a subjective inquiry. The question is “what did the accused know” and not “what ought he to have known”: see R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, at pp. 538, 541-42.

[17] The evidence at the appellant’s trial was entirely circumstantial. No one testified that the appellant put the drugs in the ceiling behind the recessed light fixture, directed them to be stored there, or knew of their location. In R. v. Villaroman, 2016 SCC 33, Cromwell J. said, at para. 55, “[w]here the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”.

[18] In my view, it was not reasonable for the trial judge to find, on this record, that the Crown had met this test.

[19] The appellant was not the target of the police investigation; Mr. Rodey was the target. During the police surveillance, the appellant was not seen entering or leaving the house. At the time of the raid, there were seven individuals in the house. Five of the individuals were in the basement area, including three in the bedroom. No scales, cell phones or debt lists were found in the basement bedroom. A set of scales was found upstairs in the main area of the house occupied by Mr. Rodey.

[20] The drugs in the basement were hidden behind a recessed light fixture. The light fixture was in the closet, not the bedroom. There were no fingerprints on the bags of drugs behind the light fixture. The closet area was not tested for fingerprints. There was no evidence linking the men’s clothes in the closet to the appellant.

[21] The trial judge relied on the presence of the appellant’s wallet and the Ontario Works letter addressed to him as factors suggesting that the appellant occupied the room.

[22] I do not think that these factors support this inference. It is not unusual for a person to take a wallet out of a pocket when he or she goes to bed and to place it nearby, even in plain view. The appellant’s wallet contained only $90 and there was no suggestion that the two women in the room were not his friends. The Ontario Works letter was sent to the appellant, but the address was at a local mall, not 132 Mayfair Drive.

[23] The trial judge also relied on the “lived-in look” of the bedroom, including the clothes in the closet, as suggestive of the appellant’s occupancy of the bedroom.

[24] Again, I think that these are non-existent or very weak links. There was nothing to tie the clothes to the appellant and the “lived-in look” does not answer the question “who lives there”. It is true that the appellant was sleeping there that night, but the police surveillance had not identified the appellant before the raid and there were five individuals in the basement area when the raid took place.

[25] The trial judge found that the glass pipe on the appellant’s person and the jewellery bags on the coffee table/TV stand strongly supported the “circumstantial inference that the accused was both using and dealing in drugs, and more particularly, methamphetamine.”

[26] In my view, this evidence, especially the glass pipe in the appellant’s pocket, supports the inference of use, but not of trafficking. There was no methamphetamine in either the glass pipe or inside the baggies.

[27] There are many drug cases dealing with the concept of constructive possession: see, for example, R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (C.A.); R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940; R. v. Turner, 2012 ONCA 570, 295 O.A.C. 274; R. v. Savoury, [2008] O.J. No. 2896 (S.C.); and R. v. Allison, 2016 ONSC 2446.

[28] In the end, I think that this case is very similar to, and indeed stronger for the appellant than, Grey where Laskin J.A. said, at pp. 421 and 423:

There was no direct evidence of the appellant's knowledge. The Crown did not have a witness who could state affirmatively that the appellant knew about the cocaine. Also, the drugs seized by the police were not in plain view -- they were hidden. To find that the appellant had possession of the cocaine, the trial judge had to infer knowledge from the circumstantial evidence. The case against the appellant rested principally on his regular occupancy of Ms. Escoffery's apartment and on the presence of his clothing and other belongings in the bedroom where the crack cocaine was found. The question is whether the trial judge was entitled to infer knowledge from this evidence. In my opinion, he was not.

I would not prescribe a firm rule for inferring knowledge from occupancy: cf. R. v. LePage, 1995 123 (SCC), [1995] 1 S.C.R. 654, 36 C.R. (4th) 145. In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.

[29] Similarly, the circumstantial evidence in this case, taken as a whole, cannot lead to a reasonable conclusion that the appellant had knowledge, either actual or inferred, of the drugs behind the light fixture in the basement closet.

E. disposition

[30] I would allow the appeal on the charge of possession of methamphetamine for the purpose of trafficking. In light of this result, the Crown properly concedes that the conviction on the charge of possession of marijuana cannot stand. It also follows in the circumstances of this case that the convictions on the three charges of failure to comply with a probation order must be set aside.

[31] Accordingly, I would allow the appeal and enter acquittals on all five counts against the appellant in the indictment.

Released: “JCM” DEC 1 2016

“J.C. MacPherson J.A.”

“I agree. R.A. Blair J.A.”

“I agree. David Watt J.A.”

[^1] Arguably, it would be possible to allow the appeal on this charge but dismiss the appeal on the possession of marijuana charge. This could happen because the marijuana was in plain view in the bedroom where the appellant was sleeping whereas the methamphetamine was hidden behind the light fixture in the closet. However, the Crown, fairly in my view, does not take that position. Its position is that the two charges stand or fall together on this appeal, “[g]iven the Crown position at trial and the reasons for judgment” (Respondent’s Factum, at para. 33, fn. 54).