Court of Appeal for Ontario
Date: 2018-02-16 Docket: C63075
Judges: Hoy A.C.J.O., Simmons and Pardu JJ.A.
Between
Her Majesty the Queen Respondent
and
Ashique Syed Appellant
Counsel
Michael A. Crystal, for the appellant
Helena Solin, for the respondent
Heard: February 13, 2018
Appeal Information
On appeal from the conviction entered on October 14, 2016 and the sentence imposed on January 30, 2017 by Justice N.M. Karam of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
[1] The appellant submits that the trial judge erred in concluding that the appellant had possession of the cocaine and hydromorphone found in a safe in the basement room the appellant had rented.
[2] The appellant's tenancy ended some two or three weeks before the landlord's discovery of the drugs. The appellant had rented a room for 30 days. His landlord lived in the home but did not give the appellant a key to the house. The landlord was reclusive and did not permit visitors. The home had an alarm system; on the rare occasions that the landlord left the house, he locked it and set the alarm. Even the appellant could not get into the house when the landlord was out. When the landlord went to the basement to clean it, some two or three weeks after the appellant's departure, he found materials in an open red safe that caused him concern. The landlord called police who removed drugs, some $15,000 worth of cocaine and hydromorphone from the safe. When the appellant came to the landlord's home as earlier agreed to retrieve his personal possessions he was arrested by police, who found the key for the red safe on the appellant's person.
[3] The trial judge correctly observed that the evidence was circumstantial, and that in order to establish possession, the Crown had to prove knowledge of and control over the drugs, beyond a reasonable doubt.
[4] The trial judge found the landlord credible, and accepted his evidence that no one else had entered the home in the period between the appellant's departure and the discovery of the drugs. He accepted that the appellant had been the last and only person to occupy the area where the drugs were found. He concluded that the appellant must have been confident that the drugs were secure in the basement, given his landlord's reclusive nature, and that no other person would have left such valuable drugs in the basement.
[5] The appellant submits that the trial judge erred in several respects:
He misapplied the law on circumstantial evidence by (a) failing to appreciate that a reasonable doubt can arise from a lack of evidence; and (b) failing to consider other reasonable possibilities.
He failed to sufficiently consider that the presence of a health card registered to an unknown person, in the safe beside the drugs could give rise to a reasonable doubt.
He placed too much emphasis on the landlord's demeanour while testifying.
[6] We do not agree.
[7] The trial judge did not err in his approach to this case that depended on circumstantial evidence. The trial judge expressly referred to and considered the evidence which the appellant says should have raised a reasonable doubt, including the evidence that a third party's health card was found in the safe. The fact that the landlord gave a house key to his elder brother on occasions when the landlord was out of the country, or that the appellant's other brother, who was involved in drug related activities, came to the front door on one occasion but did not enter the house did not undermine the trial judge's acceptance of the landlord's evidence that no one else entered the basement premises during the relevant period. Nor are we persuaded that the trial judge over-emphasized the landlord's testimonial demeanour.
[8] The trial judge's conclusion that he was satisfied beyond a reasonable doubt that the appellant had knowledge of and possession of the drugs was logically based on the evidence before him, was reasonable, and free of error.
[9] Accordingly, the appeal from conviction is dismissed, and as the sentence appeal is dependent on the success of the conviction appeal, leave to appeal sentence is refused.
"Alexandra Hoy A.C.J.O."
"Janet Simmons J.A."
"G. Pardu J.A."