Court of Appeal for Ontario

Date: 2019-02-19 Docket: C63760

Judges: Feldman, Paciocco and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Bryanna MacKay Appellant

Counsel

Mark C. Halfyard, for the appellant

Thomas C. Lemon, for the respondent

Heard

February 13, 2019

Appeal Information

On appeal from the conviction entered on December 16, 2016 and sentence imposed on May 5, 2017 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals her conviction of possession of cocaine for the purpose of trafficking. She claims the trial judge committed (1) a Sekhon error, (2) reversed the onus of proof on the question of whether the possession was for personal use, and (3) arrived at an unreasonable verdict. We would not give effect to any of these grounds of appeal.

[2] With respect to the alleged Sekhon error, we agree that the Crown expert offered inadmissible anecdotal information about the purpose or intent of others she had encountered who possessed cocaine under similar circumstances, and that this evidence was offered to counter the suggestion that possession in such circumstances could be for personal use. However, the expert's ultimate opinion that possession in such circumstances would be for the purpose of trafficking was well grounded in objective facts, and there is no indication that the trial judge relied on the inadmissible anecdotal information the expert supplied. We reject this ground of appeal.

[3] We do not agree that the trial judge reversed the onus of proof on the question of whether the possession was for personal use. The trial judge's conclusion that personal use was not grounded in the evidence finds support in the amount of the cocaine; the value of the cocaine, and the fact that it was, mainly, in a pressed form "chunk" instead of powdered form suitable for personal use. Simply put, the natural inference from these facts is that possession was for the purpose of trafficking. In this context, the trial judge was entitled to comment on the absence of evidence that could push that natural inference aside. We reject this ground of appeal as well.

[4] The verdict was not unreasonable. There was ample evidence to support the trial judge's conclusion that the only reasonable inference was that the appellant possessed the cocaine for the purpose of trafficking.

[5] The appeal is therefore dismissed.

K. Feldman J.A.

David M. Paciocco J.A.

B. Zarnett J.A.