Court of Appeal for Ontario

Date: 2019-04-24 Docket: C62648

Judges: Feldman, Brown and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Devon Horsford Appellant

Counsel

Devon Horsford, in person Michael Dineen, duty counsel Marie Comiskey, for the respondent

Heard: April 10, 2019

On appeal from: the conviction and sentence imposed on July 28, 2016 by Justice Peter J.A. Harris of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of possession for the purpose of trafficking. The issue before the trial judge was possession.

[2] Large quantities of drugs and drug paraphernalia were seized from a bedroom rented to the appellant. It was referred to as bedroom 3. Another bedroom in the same home was rented to a "tall skinny guy".

[3] The landlord testified that he thought there was a time when the tall skinny guy went into bedroom 3 but "it happened fast".

[4] In his reasons for conviction the trial judge said at page 26:

Based on the exclusive possession theory and the inference I draw of knowledge and control of the drugs in room three, based on that theory I'm satisfied beyond a reasonable doubt that [the appellant] was in possession of the drugs in that location.

[5] The appellant submits that the trial judge erred in finding exclusive possession in light of the landlord's evidence that the "tall skinny guy" went into room 3.

[6] We do not agree.

[7] Although the trial judge used the phrase "exclusive possession" he went on to add "and the inference I draw of knowledge and control". In his analysis at page 14 he set out the elements of possession as knowledge and control. The inference of knowledge and control and temporal exclusive possession was open to the trial judge on the basis of evidence that:

• The appellant rented the room.
• The room was not used as a residence for the appellant. He in fact lived a few doors away.
• There was nothing personal in the room. When the police broke down the door the items found were scales, plastic baggies in two sizes, large and expensive quantities of drugs including heroin and cocaine. Some of it was on top of the bed.
• The police surveillance officer saw the appellant go into the home, come out one minute later and immediately make a hand-off. The seizure followed almost immediately.
• The appellant had a key and kept the door locked. Although the landlord's son also had a key there is no evidence that he was at the home at all around the time of the seizure.
• There is no evidence that the tall skinny guy was around the home at any time near to the seizure.

[8] The inference drawn by the trial judge was open to him.

[9] The conviction appeal is therefore dismissed.

[10] The appellant acknowledged that the sentence appeal depended upon a successful conviction appeal. The sentence appeal is therefore dismissed.

K. Feldman J.A. M.L. Benotto J.A. David Brown J.A.