Court of Appeal for Ontario

Date: 2019-02-05 Docket: C64680

Judges: Feldman, Lauwers and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Jalal Khan Appellant

Counsel

Andrew Furgiuele, for the appellant Geoffrey Roy, for the respondent

Heard and released orally: February 1, 2019

On appeal from: The conviction entered on July 31, 2017 by Justice Bruce J. Frazer of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking. The appellant was found by the police in the back seat of a car with a "dime bag" (0.55 grams) of crack cocaine in his wallet. He does not contest his conviction for possession of that drug.

[2] He was in the car with two other men in the front, who were also convicted of possession for the purpose of trafficking in relation to a large plastic sandwich bag hanging out of the kangaroo pouch on the back of the front passenger seat of the car. That bag contained 14.78 grams of bulk crack cocaine, 14.12 grams of bulk powder cocaine and 7 small baggies containing small amounts of crack cocaine, and was hanging in close proximity to the appellant.

[3] The issue in respect to the appellant was whether the Crown had proved beyond a reasonable doubt that he was jointly in possession with the other two of the large bag of cocaine. The Crown expert gave evidence that it was possible that the appellant bought the small baggie from someone in the car and got caught by the police before he got out of the car.

[4] In our view, not only was that possible, but it was likely, given that the appellant's brother was present at the scene in his own car. It was certainly a reasonable possibility.

[5] In our view, the trial judge erred in law by failing to apply the Supreme Court of Canada's decision in R. v. Villaroman, 2016 SCC 33, at para. 37, where the court stated:

When assessing circumstantial evidence the trier of fact should consider "other plausible theories and other reasonable possibilities" which are inconsistent with guilt.

[6] The trial judge failed to consider whether the Crown had negatived the reasonable possibility that the appellant was merely a purchaser of cocaine and not one of the drug traffickers.

[7] On the record as a whole, we agree with counsel for the appellant that there is nothing in the evidence to negative that reasonable possibility in order to be satisfied of guilt beyond a reasonable doubt.

[8] As a result, the verdict is an unreasonable one and must be set aside. The appeal is allowed and an acquittal will be entered.

K. Feldman J.A. P. Lauwers J.A. I.V.B. Nordheimer J.A.