Her Majesty the Queen v. Lights

[Indexed as: R. v. Lights]

Ontario Reports

Court of Appeal for Ontario

Watt, Huscroft and Trotter JJ.A.

February 18, 2020

149 O.R. (3d) 273 | 2020 ONCA 128

Case Summary

Criminal law — Appeal — Unreasonable verdict — Police executing telewarrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime — Accused's appeal from conviction allowed on all counts except possession of the proceeds of crime — Convictions on remaining counts unreasonable due to lack of persuasive force in the circumstantial evidence relied upon to prove them.

Criminal law — Drug offences — Possession for purpose of trafficking — Police executing warrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime — Accused's appeal from conviction allowed on all counts except possession of the proceeds of crime — Convictions on remaining counts unreasonable due to lack of persuasive force in the circumstantial evidence relied upon to prove them.

Criminal law — Evidence — Circumstantial evidence — Police executing warrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime — Accused's appeal from conviction allowed on all counts except possession of the proceeds of crime — Convictions on remaining counts unreasonable due to lack of persuasive force in the circumstantial evidence relied upon to prove them.

Criminal law — Evidence — Expert evidence — Police executing warrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — Trial judge entitled to rely on expert evidence that the apartment exhibited characteristics of a premises from which drug trafficking was taking place.

Criminal law — Firearms — Possession — Possession of loaded pro-hibited or restricted firearm — Police executing warrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime — Accused's appeal from conviction allowed on all counts except possession of the proceeds of crime — Convictions on remaining counts unreasonable due to lack of persuasive force in the circumstantial evidence relied upon to prove them.

Criminal law — Proceeds of crime — Police executing warrant at accused's apartment encountering accused and others and finding firearms, ammunition, drugs, drug paraphernalia and bundles of cash — [page274] Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime — Accused's appeal from conviction allowed on all counts except possession of the proceeds of crime — Evidence fully supported trial judge's conclusion that the nexus required to establish the origin of the currency had been proven.

Criminal law — Sentencing — Appeals — Accused convicted of various firearm and drug offences and one count of possession of the proceeds of crime and sentenced to a net term of 64 months — Accused successfully appealing all but one of the convictions — Effect of conviction appeal was to reduce sentence to five years — No basis to further reduce quantum.

Police obtained a telewarrant to search the accused's apartment for guns, ammunition and magazines, together with documents linking the accused to the apartment. Armed officers entered the apartment and encountered six men, one of whom was the accused. Instead of raising his hands in accordance with police instructions, the accused appeared to put a silver object under his buttocks or between his legs. When an officer approached the accused, he took the accused to the ground and yelled "gun". As silver Ruger semi-automatic handgun was found on the couch on which the accused and three other men had been seated. Police seized firearms, ammunition, marijuana, cocaine, and over $9,000 in cash. They also found a bullet proof vest, a locked safe (whose key was in the accused's pocket), cellphones, a can with a hidden compartment, a set of scales, and a box containing a vacuum sealer and money counter. Documents linking the accused to the apartment were located in the bedroom including his passport and birth certificate. There were also documents linking his girlfriend to the apartment. The lease to the apartment was not in either of their names. Based on the circumstantial evidence the accused was convicted of possessing a loaded restricted firearm, possession of marijuana and cocaine for the purposes of trafficking, possession of the proceeds of crime, and possessing a prohibited device, being an over-capacity magazine. He was sentenced to a term of imprisonment of 9.5 years, reduced to a net sentence of 64 months after credit for pre-trial custody. The accused appealed all but one of the convictions (apart from the possession of a restricted firearm without a licence) asserting that they were unreasonable, and his sentence.

Held, the appeal should be allowed in part.

Conviction on the count of possessing a loaded restricted firearm was unreasonable. The evidence established the actus reus of the offence, namely that the accused was in possession of a restricted firearm and that it was loaded. To prove the necessary intent, the Crown must also prove that the accused knew or was wilfully blind that the weapon was loaded. The trial judge, in her analysis of the fault element required to establish personal possession, was satisfied that by manually handling the gun, the appellant knew he was handling was a loaded firearm. The evidence showed that a magazine would be flush with the bottom of the handgrip but not whether the receptacle would remain open if there was no clip. No expert evidence was called in this case and the admissions filed at trial did not establish any difference between the weapon when loaded or unloaded. Knowledge of the nature of the object as a firearm, without more, did not establish knowledge, actual or imputed, that it was loaded. The conviction on the count of possession of a loaded restricted weapon was unreasonable and an acquittal is entered.

Convictions for possession of marijuana and cocaine for the purposes of trafficking were also unreasonable. The drugs were found during a search of a duffel bag found in the front hallway of the accused's apartment. The bag was closed and no identification was found attached to it. As the accused was not in actual possession of the bag, the Crown had to prove that he was in constructive possession of it. [page275] The trial judge found that the accused's knowledge and control of the drugs had been established by relying in part on expert evidence that the apartment exhibited characteristics of a premises from which drug trafficking was taking place and that the person who controlled the money was in charge of the scheme. The trial judge was entitled to rely on that opinion evidence and to infer from it that the accused controlled access to the premises. However, turning to the issue of possession of the duffel bag and its contents, they were in a common area equidistant to six occupants, and it could not be said that the only reasonable inference was that the accused was in possession. The accused's convictions on the drug counts are set aside and acquittals entered.

Conviction on the count of possession of the proceeds of crime was reasonable. The cumulative effect of the evidence located on search of the accused's apartment and the properly admissible opinion testimony fully supported a conclusion that drug trafficking was being carried on by the accused. The instrumentalities of the offence were in abundance in the apartment, such as scales, a vacuum sealer, a money counter, and bundled cash in denominations typical of, albeit not unique to, the proceeds of drug sales in a locked safe to which the appellant had the only key. Several items of the accused's personal property were located in proximity to the safe. The evidence fully supported the trial judge's conclusion that the nexus required to establish the origins of the currency had been proven.

Conviction on the count of possessing a prohibited device was unreasonable. The only prohibited device described in the certificate of analysis filed as an exhibit was a 15-shot box magazine in a Glock handgun seized from another occupant of the apartment. The trial judge did not identify the prohibited device that was the subject of the count. If the device was the Ruger magazine, the absence of evidence to support the finding of knowledge or wilful blindness that the Ruger was loaded required the same conclusion for possession of the device with which it was loaded. The conviction on this count is set aside and a verdict of acquittal entered.

The effect of the decision on the conviction appeal was to reduce the sentence to five years, for the two remaining convictions (possession of a firearm without a licence or registration certificate and possession of the proceeds of crime). There was no basis on which to reduce it further.

Cases referred to

Cote v. The King, 1941 348 (SCC), [1941] S.C.J. No. 49, 77 C.C.C. 75; R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, [1971] S.C.J. No. 82, 21 D.L.R. (3d) 202, 4 C.C.C. (2d) 303, 18 C.R.N.S. 195; R. v. Beaudry, [2007] 1 S.C.R. 190, [2007] S.C.J. No. 5, 2007 SCC 5, 276 D.L.R. (4th) 1, 356 N.R. 323, J.E. 2007-280, 216 C.C.C. (3d) 353, 44 C.R. (6th) 57, 43 M.V.R. (5th) 1, 71 W.C.B. (2d) 862, EYB 2007-112960, 2007 CCAN para. 10,012; R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, 118 C.C.C. 129, 26 C.R. 193, 1957 CCAN para. 10,001; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454, REJB 2000-17649, 2000 CCAN para. 10,039; R. v. Boudreault, [2018] 3 S.C.R. 599, [2018] S.C.J. No. 58, 2018 SCC 58, 429 D.L.R. (4th) 583, 369 C.C.C. (3d) 358, 50 C.R. (7th) 207, 423 C.R.R. (2d) 191, EYB 2018-305225, 2018EXP-3412; R. v. Briscoe, [2010] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, 316 D.L.R. (4th) 577, 400 N.R. 216, [2010] 6 W.W.R. 1, J.E. 2010-680, 22 Alta. L.R. (5th) 49, 477 A.R. 86, 253 C.C.C. (3d) 140, 73 C.R. (6th) 224, 210 C.R.R. (2d) 150, 87 W.C.B. (2d) 293, EYB 2010-171953, 2010 CCAN para. 10,020, 2010EXP-1249; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, 165 N.R. 374, J.E. 94-647, 42 B.C.A.C. 161, 89 C.C.C. (3d) 193, 29 C.R. (4th) 113, 23 W.C.B. (2d) 211, EYB 1994-67081, 1994 CCAN para. 10,009; R. v. Chambers, 1985 169 (ON CA), [1985] O.J. No. 143, 9 O.A.C. 228, 20 C.C.C. (3d) 440, 14 W.C.B. 268 (C.A.); R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, [page276] [1973] S.C.J. No. 157, 42 D.L.R. (3d) 142, 1 N.R. 258, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 25 C.R.N.S. 296; R. v. Eastgaard, [2012] 1 S.C.R. 393, [2012] S.C.J. No. 11, 2012 SCC 11, 428 N.R. 200, 522 A.R. 389, 283 C.C.C. (3d) 1, 347 D.L.R. (4th) 402, 99 W.C.B. (2d) 284, affg [2011] A.J. No. 591, 2011 ABCA 152, 510 A.R. 117, 50 Alta. L.R. (5th) 196, 276 C.C.C. (3d) 432, 347 D.L.R. (4th) 403, 96 W.C.B. (2d) 129; R. v. Hunter, [2016] B.C.J. No. 428, 2016 BCCA 94; R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, 192 D.L.R. (4th) 416, 261 N.R. 111, J.E. 2000-2140, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203, 47 W.C.B. (2d) 591, REJB 2000-20861, JCPQ 2001-100; R. v. Lincoln, [2012] O.J. No. 3872, 2012 ONCA 542; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, J.E. 83-1778, 66 O.A.C. 161, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1, 21 W.C.B. (2d) 184, 1993 CCAN para. 10,052; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385, EYB 1994-67655, 1994 CCAN para. 10,016; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 316 D.L.R. (4th) 1, 399 N.R. 200, [2010] 4 W.W.R. 193, J.E. 2010-576, 346 Sask. R. 1, 252 C.C.C. (3d) 273, 72 C.R. (6th) 208, 207 C.R.R. (2d) 153, 86 W.C.B. (2d) 949, EYB 2010-171050, 2010 CCAN para. 10,015, 2010EXP-1068; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 88 N.R. 161, J.E. 88-1374, 30 O.A.C. 81, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1, 5 W.C.B. (2d) 309; R. v. P. (R.), [2012] 1 S.C.R. 746, [2012] S.C.J. No. 22, 2012 SCC 22, 344 D.L.R. (4th) 408, 429 N.R. 327, J.E. 2012-985, 282 C.C.C. (3d) 435, 93 C.R. (6th) 20, 2012 CCAN para. 10,023, 2012EXP-1876; R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401, [2005] O.J. No. 5127, 204 O.A.C. 299, 203 C.C.C. (3d) 326, 36 C.R. (6th) 200, 67 W.C.B. (2d) 791 (C.A.); R. v. Potts, [2018] O.J. No. 1597, 2018 ONCA 294; R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23, 17 D.L.R. (4th) 577, 58 N.R. 123, [1985] 3 W.W.R. 701, J.E. 85-503, 35 Man. R. (2d) 1, 18 C.C.C. (3d) 223, 45 C.R. (3d) 193, 14 W.C.B. 151, 1985 DFQ para. 10,001, 1985 CCAN para. 10,008; R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15, 367 D.L.R. (4th) 601, 454 N.R. 41, J.E. 2014-341, 351 B.C.A.C. 1, 307 C.C.C. (3d) 464, 8 C.R. (7th) 223, 112 W.C.B. (2d) 45, EYB 2014-233391, 2014EXP-658; R. v. Sinclair, [2011] 3 S.C.R. 3, [2011] S.C.J. No. 40, 2011 SCC 40, 335 D.L.R. (4th) 1, 418 N.R. 282, [2011] 11 W.W.R. 423, J.E. 2011-1316, 268 Man. R. (2d) 225, 270 C.C.C. (3d) 421, 86 C.R. (6th) 1, 95 W.C.B. (2d) 552, 2011 CCAN para. 10,028, 2011EXP-2368; R. v. Smith, [2016] O.J. No. 144, 2016 ONCA 25, 333 C.C.C. (3d) 534, 345 O.A.C. 65, 128 W.C.B. (2d) 466; R. v. Villaroman, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33, 2016 SCC 33, 401 D.L.R. (4th) 385, 486 N.R. 360, J.E. 2016-1352, 338 C.C.C. (3d) 1, 30 C.R. (7th) 223, 130 W.C.B. (2d) 627, 2016EXP-2458; R. v. Watson, [2011] O.J. No. 2562, 2011 ONCA 437, 94 W.C.B. (2d) 733; R. v. Williams, [2003] 2 S.C.R. 134, [2003] S.C.J. No. 41, 2003 SCC 41, 230 D.L.R. (4th) 39, 308 N.R. 235, J.E. 2003-1770, 231 Nfld. & P.E.I.R. 1, 176 C.C.C. (3d) 449, 13 C.R. (6th) 240, 58 W.C.B. (2d) 351, JCPQ 2003-129; R. v. Wu, [2017] O.J. No. 3868, 2017 ONCA 620; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108, 1987 CCAN para. 10,019; United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189, 35 W.C.B. (2d) 8, 1997 CCAN para. 10,042;White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, 383 D.L.R. (4th) 429, 470 N.R. 324, J.E. 2015-767, 360 N.S.R. (2d) 1, 67 C.P.C. (7th) 73, 18 C.R. (7th) 308, 251 A.C.W.S. (3d) 610, EYB 2015-251384, 2015EXP-1385 [page277]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 4(3), (a)(ii), (b), 21(1)(b), (c), (2), Part III [as am.], ss. 84(1) [as am.], 92(1) [as am.], (2) [as am.], 95(1) [as am.], 655, 686(1)(a)(i)

Rules and regulations referred to

Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, Sch., Part 4, s. 3(1), (b)

Authorities referred to

Williams, Glanville, Criminal Law, The General Part, 2nd ed.(U.K.: Stevens & Sons Ltd., 1961)

APPEAL by the accused from the conviction entered by Himel J. of the Superior Court of Justice on June 29, 2016 and from the sentence imposed on January 13, 2017.

Christopher R. Murphy, for appellant.

Katie Doherty, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — On a midwinter night a few years ago, Michael Lights (the appellant) had some friends over to the apartment he and his girlfriend, Kimberley Johnson, shared. The appellant, who had suffered a broken leg in a motor vehicle accident several weeks earlier, had just returned from a week in the Dominican Republic the previous day.

[2] The appellant and his friends gathered in the living room. Four of them, including the appellant, sat on a couch. The other two sat on chairs or stood in a bar area adjacent to the living room. One of the men was smoking marijuana. Ms. Johnson remained in the bedroom.

[3] Around 11:25 p.m. someone opened the apartment door with a key. Several men entered. They were armed. They identified themselves. Toronto Police. Search warrant. Raise your hands.

[4] Six armed police officers took control of the apartment. All of its occupants were placed under arrest. The appellant was charged with several firearm and drug offences, as well as one count of possession of the proceeds of crime.

[5] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of each offence with which he was charged. He was sentenced to a term of imprisonment of 9.5 years, which the judge reduced to a net sentence of 64 months after awarding credit for pre-sentence custody. [page278]

[6] The appellant appeals both conviction and sentence. These reasons explain why I have decided that the appeals should be allowed in part.

The Background Facts

[7] The circumstances surrounding the offences of which the appellant was convicted lie within a narrow compass. They consist of the observations made by police on and after entry to the appellant's apartment and the things they found and seized during the warranted search which followed.

The warrant

[8] Police obtained a telewarrant to search the appellant's apartment for guns, ammunition and magazines, together with documents linking the appellant to the apartment.

[9] At trial, the appellant challenged the telewarrant as having been improvidently issued. He sought exclusion of the evidence obtained in execution of the warrant. The application failed. The ruling was not challenged in this court.

The entry

[10] Police entered the appellant's apartment by opening the front door with a key. They were armed. In the living room and adjacent area leading to the kitchen, the officers encountered six men. Four were sitting on an L-shaped couch. Two occupied chairs or stood in the adjacent bar area.

[11] The appellant was one of the men sitting on the living room couch. He was wearing shorts and a T-shirt. The officers instructed the men not to move and to raise their hands.

The appellant's reaction

[12] Despite the police commands, the appellant did not immediately raise his hands. He appeared to be putting a silver object under his buttocks or between his legs. None of the officers were able to determine the nature of this silver object. None of the officers described the object as a gun or something that looked like a gun.

The appellant's apprehension

[13] Although the first police officer who entered the apartment noticed the appellant pushing this silver object under his buttocks or between his legs, it was the third officer to enter the apartment who approached the appellant. The officer took the appellant to the ground and yelled "Gun" to alert the other officers in the [page279] apartment. The gun was a silver Ruger semi-automatic handgun. The officer proved the weapon safe by removing its magazine.

The firearm

[14] The firearm seized from the appellant was a Ruger .22 calibre semi-automatic handgun with an 11-shot detachable box magazine. It is a restricted firearm within s. 84(1) of the Criminal Code, R.S.C. 1985, c. C-46. It was admitted at trial that this firearm was found together with readily accessible ammunition capable of being discharged in the firearm.

The drugs and related paraphernalia

[15] On a shelf in the bedroom closet, police found a vacuum sealer and a money counter. From a table by the bed, they recovered a black book containing numbers, but no dates or names. There was a bulletproof vest under the bed. A Tupperware container with a few leaves of marijuana sat on a set of scales in the kitchen.

[16] A black duffel bag was on the floor near the entrance from the kitchen to the living room. None of the officers noticed this bag when they entered the apartment to execute the search warrant. The bag was away from the area of the couch where most of the men, including the appellant, were sitting, and the bag was equidistant from all of them. There was no identification in or attached to the bag.

[17] Inside the duffel bag were several smaller bags. In one sealed bag was one kilogram of marijuana. Four smaller Ziploc bags also held marijuana. In two other bags were about two ounces of cocaine.

The money

[18] Police found a locked safe in the bedroom closet. On top of it was a lockbox. There was also a coke can with a hidden compartment. The appellant had a key to the safe in his pocket when he was arrested.

[19] Police prised the safe open. Inside it was a brown pouch. And inside the brown pouch were some bills bundled together: CDN$9,450 and US$442. A gun and a magazine fit in the gun safe.

The appellant and the apartment

[20] Several items bearing the appellant's name, some including the address of the apartment, were found in the bedroom. A passport with a stamp from the Dominican Republic dated the previous [page280] day. A birth certificate. Prescription medication. A health card. Medical and dental appointment cards and reminders. Credit card and service provider statements. And a lease agreement for the apartment in the name of Paul Hibbert. There were similar documents for Kimberley Johnson.

The admissions

[21] Several formal admissions were made at trial under s. 655 of the Criminal Code.

[22] It was admitted that the appellant had been out of Canada from February 9-16, 2014. The guns recovered in the apartment were all prohibited or restricted firearms. The ammunition was capable of being fired from these weapons. Ammunition capable of being discharged in the Ruger semi-automatic handgun was found together with it so that it was readily accessible for discharge from the weapon. None of the occupants of the apartment had an authorization, licence or registration certificate that permitted them to be in possession of any of the firearms recovered there. And the quantities of cocaine and marijuana found were sufficient for the purpose of trafficking.

The grounds of appeal

[23] The appellant appeals both conviction and sentence.

[24] On the appeal from conviction, the appellant advances a single ground of appeal. He contends that, except for the count charging him with possession of a restricted firearm without a registration certificate, contrary to s. 92(1) of the Criminal Code, the convictions entered at trial are unreasonable.

[25] On the appeal from sentence, the appellant seeks a re-duction in the term of imprisonment imposed by the trial judge. The extent of the reduction is dependent on the result of his appeal from conviction.

[26] As I explain, I would allow the appeal in part, set aside the convictions and enter acquittals on counts 1, 3, 4 and 5, dismiss the appeal on counts 2 and 6, and vary the sentence to five years, the sentence imposed on count 2, to which the sentence imposed on count 6 -- three years -- is to be served concurrently.

The Appeal from Conviction

[27] The convictions challenged here as unreasonable have three common features. In each case, the evidence relied upon to prove the offence is entirely circumstantial. The offences all allege possession of contraband and involve both constructive and actual physical possession. And each conviction is impeached as [page281] unreasonable largely, but not entirely, because of a lack of persuasive force in the evidence relied upon to prove it.

[28] Before assessing each claim of error the appellant raised, it is helpful to recall the basic principles governing an unreasonable verdict that control our determination.

Unreasonable verdicts

[29] Under s. 686(1)(a)(i), an appellate court may set aside a trial verdict if the verdict is either unreasonable, unsupported by the evidence, or both.

[30] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: R. v. P. (R.), [2012] 1 S.C.R. 746, [2012] S.C.J. No. 22, 2012 SCC 22, at para. 9; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at p. 186 S.C.R.; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, at para. 36; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, at p. 663 S.C.R.

[31] A verdict may also be unreasonable where a judge has drawn an inference or made a finding of fact that is plainly contradicted by the evidence or is incompatible with evidence that is not otherwise contradicted or rejected: P. (R.), at para. 9, citing R. v. Sinclair, [2011] 3 S.C.R. 3, [2011] S.C.J. No. 40, 2011 SCC 40, at paras. 4, 16, 19-21.

[32] Two further points warrant brief mention.

[33] When the claim of an unreasonable verdict rests on the assertion that, based on the evidence, the trier of fact could not have reasonably rendered the guilty verdict, an appellate court is entitled to consider that the accused did not testify at trial or adduce other evidence to support any other reasonable inference consistent with innocence: R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at pp. 280-81 S.C.R.; R. v. Wu, [2017] O.J. No. 3868, 2017 ONCA 620, at para. 16.

[34] The remedy available to an appellant who successfully challenges a trial verdict as unreasonable depends on the circumstances of the case and the basis upon which the argument succeeds. Where the appellate court is satisfied that the verdict is unreasonable because no properly instructed jury, acting judicially, could reasonably have reached such a verdict, the appellate court should enter an acquittal. The same result would follow when the [page282] court determines that a finding or inference drawn by the judge contradicted by the evidence or incompatible with evidence not otherwise contradicted or rejected and the verdict is unavailable on the evidence. But when the verdict is unreasonable but avail-able on the evidence, the remedy is a new trial: Sinclair, at para. 23 (Fish J. dissenting, but not on this point); R. v. Beaudry, [2007] 1 S.C.R. 190, [2007] S.C.J. No. 5, 2007 SCC 5, at para. 97.

[35] Having reviewed the legal principles governing unreason-able verdicts, I now briefly turn to those that concern circumstantial evidence; expert evidence; and proof of possession. Each helps us determine the reasonableness of the verdicts in this case.

Circumstantial evidence

[36] When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33, 2016 SCC 33, at para. 20.

[37] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, [2016] O.J. No. 144, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, at pp. 360-61 S.C.R.; Côté v. The King, 1941 348 (SCC), [1941] S.C.J. No. 49, 77 C.C.C. 75, at p. 76 C.C.C.

[38] Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities in-consistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See, also, R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, [1971] S.C.J. No. 82, at p. 8 S.C.R.

[39] When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way [page283] of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.

The admissibility of expert evidence

[40] Three brief points on admissibility provide the appropriate framework to assess the expert evidence in this case.

[41] First, determining admissibility. Decisions on the admiss-ibility of expert opinion evidence require a two-step inquiry. At the first step of the inquiry, the proponent must establish the threshold requirements laid down in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at p. 20 S.C.R. See also, White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, at para. 23. The second, gatekeeping step requires the judge to decide whether the benefits of the proposed evidence exceed the risks of admitting it: White Burgess, at para. 24.

[42] Second, preserving admissibility. The trial judge must also ensure the expert remains within their field of expertise and that the content of their evidence itself is properly expert evidence: R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15, at para. 47. This, of course, means the trier of fact cannot use expert evidence that extends beyond the witness' expertise or is otherwise not within the scope of permissible expert evidence, for example, anecdotal evidence: Sekhon, at para. 50. See, also, R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at pp. 242-44 S.C.R.

[43] A final point concerns the admissibility and, in consequence, the trier of fact's use of expert opinion evidence on the ultimate issue. No general or bright line rule prohibits either admission or trier of fact's use of expert opinion evidence on the ultimate issue. But the proximity of the opinion to the ultimate issue requires that the evidence be given special scrutiny: Mohan, at p. 25 S.C.R.; R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, at para. 37; R. v. Potts, [2018] O.J. No. 1597, 2018 ONCA 294, at para. 47.

Proof of possession

[44] Section 4(3) of the Criminal Code defines possession. It includes

-- personal possession;

-- constructive possession; and

-- joint possession.

Our concern here is with personal possession and constructive possession. Knowledge and control are essential elements common to [page284] both: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 15.

[45] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See, also, R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, at pp. 541-42 S.C.R.

[46] When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

[47] Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused

(i) has knowledge of the character of the thing;

(ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

(iii) intends to have the thing in the place for the use or benefit of the accused or of another person.

[Morelli, at para. 17]

[48] In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial.

[49] Two further points deserve brief mention.

[50] When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, [2011] O.J. No. 2562, 2011 ONCA 437, at para. 13; R. v. Lincoln, [2012] O.J. No. 3872, 2012 ONCA 542, at para. 3.

[51] We define knowledge as true belief: United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 41. It includes not only actual knowledge but also wilful blindness.

[52] Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, [2003] S.C.J. No. 41, [page285] 2003 SCC 41, at paras. 27-28; R. v. Briscoe, [2010] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, at paras. 22-24; R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23, at p. 584 S.C.R.

[53] With these general principles in mind, I turn now to consider the convictions on individual counts, each of which is said to be unreasonable.

The loaded restricted firearm

[54] The first count in the indictment alleged that the appellant possessed a loaded restricted firearm -- a Ruger handgun -- without the required authorization, licence and registration certificate.

[55] I am satisfied that the verdict on this count is unreason-able. Before turning to my reasons, I will examine the background giving rise to this allegation; the trial judge's reasons; the parties' positions; and the governing legal principles.

The essential background

[56] The firearm that is the subject of this count is a Ruger handgun. It is silver in colour and functions as a semi-automatic firearm. It was found fully-loaded with a detachable box magazine inserted into a receptacle in the grip of the gun. The magazine holds 11 cartridges.

[57] The Ruger is a restricted .22 calibre firearm. The several boxes of .22 calibre ammunition only suitable for use in the Ruger, one of the three handguns found in the apartment, were also found in the apartment during the search.

[58] At trial, the Ruger handgun, and several photographs of it, were filed as an exhibit. Those photographs appear to show that when the magazine is in place it sits flush with the bottom of the handgrip. When the magazine is removed, however, it is not clear whether the bottom end of the receptacle remains open, not closed, as it is when the magazine is in place.

[59] No firearms examiner testified at trial. Instead, a document containing several formal admissions was filed as an exhibit. The admissions included the contents of a Certificate of Analysis by a person designated by the Toronto Police Service as an examiner of weapons, prohibited devices, ammunition and prohibited ammunition, including their parts and components. It did not, however, establish any difference between the firearm being loaded or unloaded.

The trial judge's reasons

[60] The trial judge accepted the evidence of the several police officers who saw and described the appellant's motions with the silver object while seated on the couch. It was uncontested that [page286] the silver object was, in fact, the Ruger semi-automatic handgun loaded with a full 11-shot magazine.

[61] The trial judge then considered whether the Crown had proven the fault element required for this offence under s. 95(1) of the Criminal Code. On this issue, she concluded:

To satisfy the knowledge component of personal possession, the accused must: (1) be aware that he/she has physical custody of the thing in question; and (2) be aware of what that thing is: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16. In R. v. Tyrell, 2014 ONCA 617, the Ontario Court of Appeal wrote at para. 30: "[p]roof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry. The question is "what did the accused know" and not "what ought he to have known".

The mental element is made out in my view, by the inference that Mr. Lights had knowledge of the gun and deliberately moved it out of sight of the police. By manually handling the gun, it is implicit that the accused was aware that he had physical custody of the thing in question and knew that it was a loaded firearm. The facts of this case also suggest that the accused was subjectively aware of the gun's criminal character: why else would Mr. Lights attempt to conceal the gun from the police if not for his recognition that the gun was an illicit item? To paraphrase, the Court of Appeal in R. v. Williams, 2009 ONCA 242, at para. 20, the accused knew the loaded handgun that he had in his possession was indeed a loaded handgun, the possession of which was contrary to the statute.

(Emphasis added)

The arguments on appeal

[62] The appellant says that the conviction entered on this count is unreasonable. The evidence on this issue was entirely circumstantial and did not establish, beyond a reasonable doubt, the appellant knew the firearm was loaded. Other inferences were equally available on the evidence. The appellant's guilt does not follow from the rejection of Jahdel Myers' testimony about ownership of the gun and his placement of it between the cushions on the couch on which the appellant was sitting. And mere occupancy of the apartment does not establish an occupant's knowledge of all the things in that apartment, much less their inherent characteristics. On this basis, the appellant asks this court to set aside the verdict and enter an acquittal in its place.

[63] The respondent accepts that the critical issue at trial was the adequacy of the evidence to establish the appellant's knowledge that the Ruger was loaded. But the respondent contends that, having found that the appellant handled the loaded Ruger, it was open to the trial judge in those circumstances to infer actual knowledge that the gun was loaded. That the trial judge drew this inference in the circumstances does not make her conclusion of guilt unreasonable in the absence of any other reasonable possibility or plausible theory. [page287]

The governing principles

[64] Earlier in these reasons, I canvassed several general principles equally applicable to our determination of this claim of unreasonable verdict: the essential elements of possession; the standard to be applied in determining whether a verdict grounded on circumstantial evidence was unreasonable; and the admissibility of expert opinion evidence. I see no need to repeat this discussion of basic principles.

[65] Instead, I focus my attention on the essential elements of the offence with which we are concerned -- s. 95(1) of the Criminal Code --and more particularly, on its fault element.

[66] Under s. 95(1), the Crown must prove beyond a reasonable doubt that the appellant knew that the firearm was loaded: R. v. Eastgaard, [2011] A.J. No. 591, 2011 ABCA 152, 276 C.C.C. (3d) 432, at para. 8, affd [2012] 1 S.C.R. 393, [2012] S.C.J. No. 11, 2012 SCC 11; R. v. Hunter, [2016] B.C.J. No. 428, 2016 BCCA 94, at para. 25.

[67] To prove this essential element of knowledge, the Crown may attempt to establish that the accused actually knew that the firearm was loaded. But the Crown is not restricted to proof of actual knowledge. The Crown could also establish knowledge by showing that the accused was wilfully blind that the firearm was loaded, explained in the section on general principles above.

[68] One further point about wilful blindness.

[69] Wilful blindness, perhaps better described as "deliberate ignorance", involves a person who has become aware of the need for some inquiry but declines to make that inquiry because they would prefer to remain ignorant: Sansregret, at p. 584 S.C.R.; Briscoe, at para. 22. The doctrine is narrow in scope lest it become indistinguishable from negligence in failing to acquire knowledge: Briscoe, at para. 23, citing Glanville Williams, Criminal Law, The General Part, 2nd ed. (U.K.: Stevens & Sons Ltd., 1961), at p. 159.

The principles applied

[70] As I will briefly explain, I am satisfied that this ground of appeal succeeds. In the result, I would set aside the conviction on this count and enter an acquittal.

[71] I approach our task in connection with this ground of appeal mindful of basic principles. A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. In our application of this standard, we are to re-examine and, to some extent, within the limits of appellate disadvantage, to reweigh and consider the cumulative effect of the evidence adduced at trial. In this case, where the evidence on [page288] the controverted issue of knowledge is entirely circumstantial, our task is to determine whether a trier of fact, acting judicially, could reasonably have been satisfied that the appellant's guilt was the only reasonable inference available on the evidence taken as a whole. And we must also have in mind that it remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt.

[72] We begin by eliminating the uncontroversial.

[73] The trial judge accepted the evidence of the police officers who executed the search warrant at the appellant's apartment. This evidence, taken as a whole, established that the appellant was in actual possession of the Ruger handgun, which he attempted to move beneath his buttocks as he sat on the couch in the living room area of the apartment. The gun, fully loaded with a box magazine containing 11 cartridges, is a restricted firearm. This evidence established the actus reus of the offence under s. 95(1).

[74] In her analysis of the fault element required to establish personal possession, the trial judge was satisfied that by manually handling the gun, the appellant knew what he handled was a loaded firearm.

[75] In my view, knowledge of the nature of the object he handled as a firearm, without more, does not establish know-ledge, actual or imputed, that the firearm was loaded. The problem, as I see it, is twofold. I would characterize the conclusion as the product of speculation, not inference. And, in the circumstances of this case, even characterizing it as an inference does not meet the standard of proof required, that is to say, it is not the only reasonable inference available on the totality of the evidence.

[76] The offence was possession of a loaded restricted firearm. Once again, the evidence falls short of what is required.

[77] For these reasons, I am satisfied that the conviction on this count cannot stand. I would set it aside as unreasonable and enter an acquittal on that count.

The drug counts

[78] The appellant was convicted of two separate drug counts: possession of marijuana and of cocaine for the purposes of trafficking. Like the possession of a loaded firearm offence, I conclude that these verdicts are unreasonable.

[79] A brief discussion of the background, the expert evidence given at trial; the trial judge's reasons; the parties' positions; and the governing principles is the logical point of departure for our analysis. [page289]

The essential background

[80] The drugs that were the subject-matter of these counts were those found during the search of the black bag found in the front hallway of the appellant's apartment. The bag was zipped closed. No identification was found attached to it, displayed on it or located inside it. Officers executing the search warrant did not see the bag when they entered the apartment. They only saw it after all the occupants had been arrested and secured and a more thorough search of the apartment had begun. The bag was equidistant from the various occupants.

[81] Searching officers found several other things associated with drug trafficking at different places in the apartment. A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones.

The evidence of Detective Hutchings

[82] The appellant's trial counsel acknowledged that Detective Hutchings, a member of the Drug Squad of the Toronto Police Service, was qualified to provide expert opinion evidence about proceeds of crime and trafficking in marijuana and cocaine. This included evidence about the modus operandi of traffickers; the methods of payment for drug purchases; the association of drug trafficking with firearms; and the interpretation of documents associated with drug trafficking.

[83] Detective Hutchings gave evidence that the amounts of drugs and cash, together with the presence of firearms reflected a mid-to-high-level trafficker. He explained that drug trafficking is a cash business. Drug traffickers use vacuum sealing to mask the smell of the drug and to keep it fresh for prospective buyers and use safes to store drugs and money to guard against robberies.

[84] The presence of a large scale, placement of a Tupperware container with marijuana residue in it on the scale, and packaging of both the marijuana (smaller baggies insider larger sealed Ziploc) and the cocaine (ounce-level deals) confirmed this level of trafficking. As did a book found in the apartment, which contained numbers reflective of various amounts, but it was not a typical debt list.

[85] Detective Hutchings also gave evidence that the person with the key to the safe that contained large amounts of currency consistent with the proceeds of trafficking was likely the person in charge of the trafficking operation. Absent the duffel bag and its contents, Det. Hutchings considered that the evidence revealed both current and future trafficking in marijuana from the apartment. [page290]

The trial judge's reasons

[86] The trial judge considered at length whether the evidence adduced at trial proved the essential elements of the two counts alleging possession of marijuana and of cocaine for the purpose of trafficking. She itemized the evidence she considered relevant to the critical issue of knowledge and control of the drugs found in the duffel bag:

Mr. Lights was the main occupant of unit 1810 as demonstrated by his clothing, documents, medication and inhalers, and other personal items he kept at the apartment;

Mr. Lights had been in the Dominican Republic for one week, until February 16, 2014, but was back in Canada and living at his residence prior to his arrest;

While Mr. Lights occupied the apartment, there was evidence that Paul Hibbert was named as tenant on the lease and had articles with his name on it (the computer and the blank cheques) in the apartment and Kimberley Johnson had several articles of clothing and personal documents in the apartment and was present in the bedroom when police executed the warrant;

When police entered the apartment, they did not notice the bag until the warrant had been executed and the occupants had been removed from the premises. Even so, the black bag was located in full view in the hallway, in a common, high-traffic area of the apartment;

The black bag was zipped up and had no identifying information on or in it;

There is no direct evidence that Mr. Lights knew that the bag was in his apartment or that the contents of the bag were illicit;

The apartment was filled with drug paraphernalia including the vacuum sealer, money counter, scales, baggies, and a safe with $9,450 in bundled cash, as well as marijuana in other parts of the apartment and an odour of burnt marijuana;

There were other visitors in the apartment at the time the search warrant was executed.

[87] On the issue of control, the trial judge concluded that this essential component of possession had been established on the basis of the appellant's occupancy of the apartment in which the bag containing the drugs was found:

Based on the above facts, I find that Mr. Lights had control of the bag in question. As noted above, the Crown must prove that the accused had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not. I am satisfied that Mr. Lights had sufficient control for the purposes of making out the offence of possession. The existence of his clothing, photographs, medications and inhalers, and personal documents demonstrate that Mr. Lights was the main occupant of unit 1810. While Paul Hibbert was named as tenant on the lease and had articles with his name on it (e.g. the computer, the blank cheque book in the bedroom, the energy management bill and the insurance envelope), there is no evidence that he resided there. Kimberley Johnson's name was on her passports and other personal documents. She appeared to reside at the apartment for at [page291] least some time, and was there when the search warrant was executed; however, she was not a full-time occupant. In my view, the existence of the numerous personal effects of Mr. Lights, including the Rogers bill addressed to him at the apartment, demonstrates that he was the primary occupant of the residence. I find the evidence probative in determining Mr. Lights' ability to grant or withhold consent to the duffel bag being in his apartment.

[88] Turning to the requirement of knowledge, the trial judge recognized the fact-specific nature of this inquiry. She then examined several precedents in which courts in similar circumstances had considered whether the evidence was sufficient to prove knowledge. At the conclusion of her recital of these authorities, the trial judge reasoned that the required standard of proof had been met:

In conclusion, considering the cumulative effect of all the evidence led, and the fact that the evidence did not support any other reasonable inference other than that the accused had knowledge of and a measure of control over the duffle bag and its contents, I find that the Crown has established beyond a reasonable doubt the elements of knowledge of and control over the drugs found in the bag.

The evidence also demonstrates, and it is conceded, that the quantity of drugs would support the conclusion that, if possession were established, the possession was for the purpose of trafficking. Accordingly, the prosecution has proven beyond a reasonable doubt the offences of possession of the drugs for the purpose of trafficking.

The arguments on appeal

[89] The appellant says the convictions on both drug counts are unreasonable because the evidence, taken as a whole, cannot establish his possession of the drugs as the only reasonable inference available on that evidence. The absence of any evidence specifically linking the appellant to the black bag containing both marijuana and cocaine gives rise to other available inferences. Five other people were present at the time the bag was found. It was found in the open, in an area not hidden away from view or together with other drug paraphernalia or proceeds of drug activity. And no evidence supports an inference of pre-concerted activity amongst those present.

[90] The appellant continues, the trial judge reached her finding of guilt on these counts, at least in part, by relying on evidence of Det. Hutchings that was anecdotal and exceeded his expertise. Detective Hutchings' testimony was, in other respects, speculative and should not have been used on the ultimate issue of the appellant's guilt.

[91] The respondent rejects any suggestion that the findings of guilt on the drug counts are unreasonable. The trial judge was well aware of the circumstantial nature of the evidence relied upon by the Crown and the standard of proof required to establish [page292] the appellant's guilt on the drug counts. The cumulative force of the evidence satisfied the burden of proof settled upon the Crown: the bag was in the hallway of the appellant's home; the contraband was not hidden away out of plain view; drug paraphernalia and the proceeds of commercial drug activity were all around; and the appellant had the key to the safe where the proceeds were located.

[92] The respondent also says the trial judge did not err in her use of Det. Hutchings' testimony. His qualifications were admitted. Trial counsel did not object to the admissibility of any part of his evidence. He was not cross-examined on the testimony he gave about the significance of possession of the key to the safe in determining who controlled the trafficking operation. And his evidence did not include anecdotal evidence in breach of the prohibition in Sekhon nor offend what little remains of the rule prohibiting expert opinion evidence on the ultimate issue.

The governing principles

[93] Earlier in these reasons, I canvassed several general principles equally applicable to our determination of this claim of unreasonable verdict. Those principles, which had to do with the essential elements of possession; the standard to be applied in determining whether a verdict grounded on circumstantial evidence was unreasonable; and the admissibility of expert opinion evidence, need not be repeated here. I add two brief points to the previous discussion.

[94] The first concerns anecdotal evidence included within other-wise admissible expert opinion evidence.

[95] The rule against anecdotal evidence as part of an expert's opinion testimony originates in Sekhon. There, Moldaver J. held that anecdotal evidence while logically relevant, was not legally relevant. It should not be admitted because it says nothing about the appellant's guilt: at para. 49.

[96] The Supreme Court identified two further problems with the anecdotal evidence -- its prejudicial effect and its tendency to require a response from the accused, which compromises the burden of proof: Sekhon, at para. 50.

[97] Second, the availability of inferences about the elements of possession from occupancy of or control over premises.

[98] In some instances, occupancy of premises, more particularly, the authority to control access to them, may support an inference of control over drugs found there when coupled with evidence of knowledge: R. v. Chambers, 1985 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.), at pp. 446-48 C.C.C. See, also, R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401, [2005] O.J. No. 5127, 203 C.C.C. (3d) 326 (C.A.), at paras. 25-29. [page293]

The principles applied

[99] As I will explain, I am satisfied this ground of appeal has merit and warrants an order setting aside the convictions of possession of cocaine and of marijuana for the purposes of trafficking and entering acquittals on those counts.

[100] The appellant's liability on these counts cannot be established on the basis that he had the bag and its contents in his actual physical possession. Unlike the firearm the appellant handled while sitting on the couch and attempted to remove from the police view, the bag containing the drugs was in the hallway equidistant from the occupants of the living room and kitchen area, including, but not only the appellant.

[101] Absent evidence of actual physical possession, the Crown was required to show that possession of the drugs in the bag could be attributed to the appellant under s. 4(3) (a)(ii) of the Criminal Code (constructive possession) or that he was in joint possession of them under s. 4(3)(b).

[102] To establish constructive possession, the Crown was required to prove that the appellant knew the bag contained drugs, intended to possess them and had the necessary control over them. Because the evidence the Crown relied upon was entirely circumstantial, to establish the appellant's guilt beyond a reasonable doubt the Crown was required to prove each essential element was the only reasonable inference available on the evidence taken as a whole.

[103] I reject the appellant's claim that the trial judge was not entitled to rely on Det. Hutchings' expert testimony because it included anecdotal evidence and contravened the ultimate issue rule. The opinion offered consisted of two components. The first -- that the apartment exhibited the characteristics of a premises from or in which drug trafficking was taking place -- was a reasonable inference from the presence of several indicia of trafficking in the apartment. Scales. Packaging. A money counter. A vacuum sealer. Currency in denominations typical of proceeds of drug trafficking. The second -- that the person who controlled the money was the person in charge of the scheme -- was also a reasonable inference, untainted by any anecdotal elements as in Sekhon.

[104] In this case, the evidence disclosed that, although he did not sign the lease, the appellant was a principal occupant of the apartment. And as the principal occupant, it is reasonable to infer that the appellant controlled access to the premises.

[105] But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male [page294] occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband.

[106] In the result, I would set aside the convictions on the drug counts and enter verdicts of acquittal.

The proceeds count

[107] The appellant also challenges as unreasonable his con-viction of possession of the proceeds of crime. The allegation relates to $9,450 in currency found in a locked safe in the bedroom closet of the appellant's apartment.

[108] I am satisfied that the finding of guilt on this count is reasonable. A brief reference to some additional background provides the framework essential for an evaluation of this ground.

The essential background

[109] When police searched the bedroom, they found a black bulletproof vest under the bed. They also found several items in the closet:

(i) a locked safe with a lockbox on top of it and a pouch containing bundled Canadian currency in the amount of $9,450, together with a small amount of United States currency, some jewellery and cellphones;

(ii) a coke can with a hidden compartment;

(iii) a box containing a vacuum sealer and money counter;

(iv) mens' clothing and shoes;

(v) prescription medication.

[110] Elsewhere in the bedroom police found the appellant's passport and birth certificate, as well as various items of prescribed medication, medical appointment cards, a credit card statement and a bill from a service provider all in the appellant's name. The appellant's passport showed an entry in the Dominican Republic on February 16, 2014, the day before the search was conducted.

[111] On arrest, police located a key to the safe in the appellant's pocket. [page295]

The trial judge's reasons

[112] The trial judge explained why she found the appellant guilty of possession of the proceeds of crime:

In my view, the evidence in this case including the presence of a digital scale with remnants of marijuana on the kitchen counter, evidence of smoking of marijuana, a locked safe with money where the key was found on Mr. Light's person and where the safe was in the bedroom occupied by Mr. Lights, a vacuum sealer, a money counter, magazines about marijuana and guns, the black bag containing packaged cocaine and marijuana, the presence of three firearms and a bullet proof vest in the apartment are all pieces of circumstantial evidence consistent with a drug trafficking operation being conducted by Mr. Lights from this apartment. In the opinion of Detective Hutchins who was qualified as an expert on proceeds of crime and drug trafficking, this type of evidence is characteristic of a drug trafficking operation and the manner in which the cash was stored and bundled was characteristic of proceeds of crime. In reaching this conclusion, I rely in no way on the presence of a black book with some numbers listed in it. That item cannot be said to be a debt book as suggested by the Crown. However, there are numerous other indicators of a drug trafficking operation. I am satisfied beyond a reasonable doubt that the money (more than $9,000) in the bundles locked in a safe was proceeds obtained by the commission of the offence of drug trafficking.

The arguments on appeal

[113] The appellant says that the trial judge found him guilty on the proceeds count on the basis that

(i) drug trafficking was taking place in the apartment;

(ii) the appellant had exclusive access to the safe, and thus had possession of its contents; and

(iii) the appellant had failed to adduce any evidence to contradict the presumption arising from the possession of the currency and evidence of drug trafficking.

[114] According to the appellant, the trial judge's finding is unreasonable because of two errors she made in reaching her conclusion. She relied on the expert opinion evidence of Det. Hutchings to conclude that the appellant had exclusive access to the safe, thus was in the possession of its contents. The safe had a keypad. At least one other person -- Kim Johnson -- had access to the room in which the safe was located. And about one-third of the money in the safe was labelled "Kim". At all events, the opinion expressed by Det. Hutchings was either anecdotal evidence or an opinion that exceeded the scope of the officer's expertise. In addition, the trial judge erred by treating possession of the currency as the possession of the proceeds of crime as [page296] a presumptive conclusion based on the finding of guilt on the drug counts.

[115] The respondent rejects any suggestion that the finding of guilt was grounded on impermissible use of the expert testimony of Det. Hutchings, or reliance upon a rebuttable presumption to ground the necessary findings of unlawful origin and knowledge of or wilful blindness about the origins of the currency. The respondent says that the necessary findings were the product of a reasoned consideration of the totality of the evidence. The trial judge drew the only reasonable inference available on the totality of that evidence.

The governing principles

[116] Our decision on this ground of appeal involves application of principles already discussed in connection with the previous grounds of appeal. Their repetition is unnecessary.

The principles applied

[117] As I will briefly explain, I am satisfied that this ground of appeal fails.

[118] At its core, the appellant's claim of unreasonableness alleges that the trial judge erred in relying on two items of evidence to find guilt established on the proceeds count:

(i) evidence of drug trafficking in the apartment; and

(ii) evidence that the appellant had exclusive access to the safe containing $9,450 in cash and other items.

[119] To establish the appellant's guilt on the proceeds count, it was incumbent on the Crown to prove beyond reasonable doubt, among other things, that

(i) the appellant was in possession of proceeds of property;

(ii) the proceeds were obtained by crime; and

(iii) the value of the proceeds exceeded $5,000.

The count particularized the proceeds as "Canadian currency of a value exceeding five thousand dollars" but did not specify the "offence punishable by indictment" from which the proceeds were derived or obtained.

[120] The proceeds alleged were the Canadian currency in the safe in the bedroom. The amount of currency exceeded $5,000. The appellant had a key to the safe. It was the only key located during the investigation. Other items in the bedroom and in close proximity to the safe were also linked to the appellant. [page297] The cumulative effect of this evidence supported the finding that the appellant was in possession of the currency found in the safe. Whether his possession was exclusive or joint with Kim Johnson was of no moment to proof of these essential elements.

[121] It was also incumbent on the Crown to prove beyond a reasonable doubt the unlawful origin of the currency of which the appellant was in possession. As is the practice in this jurisdiction, the count did not specify the indictable offence from which the currency was derived. At trial, the Crown sought to establish the genesis of the funds was trafficking in controlled substances. To establish these origins, the Crown relied on the evidence located on search of the apartment and the opinion evidence of Det. Hutchings.

[122] In my view, the cumulative effect of the evidence located on search of the appellant's apartment and the properly admissible opinion testimony of Det. Hutchings fully supported a conclusion that drug trafficking was being carried on by the appellant. The instrumentalities of the offence were in abundance in the apartment. Scales. A vacuum sealer. Baggies. A money counter. Marijuana residue in a Tupperware container on a set of scales. The appellant lived there. Several items of his personal property were located in the bedroom, much of it in close proximity to the safe. Bundled cash in denominations typical of, albeit not unique to, the proceeds of drug sales in a locked safe to which the appellant had the only key. The evidence fully supported the trial judge's conclusion that the nexus required to establish the origins of the currency had been proven.

[123] Nor am I persuaded that the inferences drawn by the trial judge in reaching her finding of guilt on the proceeds count were tainted by reliance on anecdotal evidence from Det. Hutchings, or by presuming guilt from her prior finding of guilt on the possession for the purpose counts. The opinion testimony of Det. Hutchings did not fall foul of the prohibition against anecdotal evidence announced in Sekhon. The essence of the officer's opinion was expressed in answer to a hypothetical question based on a premise which consisted of the findings on search of the appellant's apartment. He did not, as in Sekhon, offer an opinion about the appellant's state of mind -- in particular, his knowledge -- on the basis of the states of mind of others.

[124] Nor can it be said that the trial judge found guilt on this count established because she had earlier found the appellant guilty of possession of cocaine and of marijuana for the purposes of trafficking based on the contents of the black duffel bag found in the hallway. Read as a whole, the reasons of the trial judge do [page298] not reveal such presumptive reasoning or infidelity to the burden of proof.

[125] As a result, this ground of appeal fails.

The prohibited device count

[126] The appellant also challenges his conviction on the count alleging possession of a prohibited device as unreasonable.

[127] I am satisfied that the verdict on this count is unreason-able. Some additional background is required to better understand this ground of appeal.

The essential background

[128] In count 3 in the indictment, the appellant was charged with possession of "a prohibited device, to wit: an over-capacity magazine, knowing that he was not the holder of a licence under which he may possess it". No further description of the device was provided.

[129] When police officers entered the apartment to execute the search warrant, they saw the appellant attempting to hide a silver object as he sat on the living room couch. The object was a .22 calibre Ruger semi-automatic handgun. The handgun was loaded with an 11-shot detachable box magazine.

[130] No firearms examiner testified at trial. A Certificate of Analysis was filed as an exhibit. The only "prohibited device" described in that Certificate was a 15-shot detachable 9 mm box magazine found in the 9 mm Luger calibre Glock semi-automatic handgun seized from Rohan Reid. In addition to the detachable 11-shot box magazine found in the .22 calibre Ruger semi-automatic handgun, police also found 350 rounds of .22 calibre LR ammunition suitable for use in the Ruger handgun. These cartridges are described in the Certificate of Analysis as "ammunition".

The trial judge's reasons

[131] The trial judge referred to the section under which the appellant was charged, s. 92(2) of the Criminal Code, then described the "ammunition" found in the apartment. The reasons contain no reference to either a "prohibited device" or the prohibited device described in the count -- the over-capacity magazine. After summarizing the essential elements of possession and the modes of participation described in s. 21(1)(b), (c) and (2) of the Criminal Code, the trial judge concluded:

I am satisfied beyond a reasonable doubt that Mr. Lights was

in possession of ammunition found in the apartment. [page299]

The arguments on appeal

[132] The appellant contends that the verdict on the "prohibited device" count is unreasonable. The only evidence of a "prohibited device" in the Certificate of Analysis related to a box magazine with capacity of 15-9 mm Luger cartridges found in the Glock 9 mm semi-automatic handgun. There was no evidence that the appellant knew about the Glock or whether it was loaded with an over-capacity magazine, much less that he exercised any control over either. Nor was there any evidence that the appellant knew that the Ruger of which he had physical possession was loaded, or all the more so, that it was loaded with what the law characterizes as a "prohibited device".

[133] The respondent says that the "prohibited device" count referred to the over-capacity box magazine found in the Ruger of which the appellant had actual physical possession. There was no dispute that this box magazine was over-capacity. As a result, it was a "prohibited device" within s. 84(1) of the Criminal Code because it falls within s. 3(1) (b) in Part 4 of the Schedule under Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462. The appellant had physical possession of the Ruger. He knew it was loaded. This was a sufficient basis for a finding of guilt to be entered and the conviction recorded.

The governing principles

[134] The term "prohibited device" is exhaustively defined in s. 84(1) of the Criminal Code for the purposes of Part III. Among other things, a "prohibited device" is "a cartridge magazine that is prescribed to be a prohibited device". In SOR/ 98-462, as amended, Part 4 -- Prohibited Devices, in s. 3(1) provides:

3(1) Any cartridge magazine

(b) that is capable of containing more than 10 cartridges of the type for which the magazine was originally designed and that is designed or manufactured for use in a semi-automatic handgun that is commonly available in Canada.

[135] Section 84(1) defines "ammunition", as well as "prohibited ammunition". "Prohibited device" is not part of either definition.

The principles applied

[136] Three reasons persuade me that this conviction cannot stand. [page300]

[137] First, the reasons of the trial judge failed to record the findings of fact necessary to support a conviction on this count.

[138] The appellant was charged with unlawful possession of a prohibited device. The prohibited device of which he was alleged to have been in unlawful possession was an over-capacity magazine. The device was not further described or particularized in the count.

[139] But, with respect, the findings of the trial judge on this count are unclear. She does not identify the "prohibited device" which is the subject of the count, indeed nowhere uses the term "prohibited device". The finding that the appellant "was in possession of the ammunition found in the apartment" cannot sustain a conviction under s. 92(2). Possession of "ammunition" is not possession of a "prohibited device".

[140] Second, my conclusion that the appellant's conviction of possession of the Ruger, a restricted firearm, knowing that it was loaded, was unreasonable requires the same conclusion on the "prohibited device" count. The absence of evidence to support the finding of knowledge or wilful blindness that the gun was loaded requires the same conclusion for possession of the device with which it was loaded.

[141] Finally, I can see no basis upon which the appellant can be found guilty on the "prohibited device" count in connection with the magazine contained in the Glock handgun in Rohan Reid's possession. The absence of evidence to support the finding of actual knowledge or wilful blindness about whether that gun was loaded eliminates it as a basis for conviction on this count.

[142] For these reasons, I would also set aside the conviction on this count and enter a verdict of acquittal.

The Sentence Appeal

[143] The appellant also appeals his sentence. He sought a reduction in the length of the term of imprisonment -- 9.5 years -- imposed at trial. Apart from seeking a reduction in quantum, to some extent dependent on success on the appeal from conviction, he made no specific submissions on sentence either in writing or in oral argument.

[144] Following the appellant's conviction, the trial judge imposed a global sentence of 9.5 years:

-- Possession of a loaded restricted firearm: 6.5 years

-- Possession of a firearm without a licence or registration certificate: five years (concurrently)

-- Possession of cocaine for the purposes of trafficking: three years (consecutively) [page301]

-- Possession of marijuana: two years (concurrently)

-- Possession of proceeds of crime: three years (concurrently)

[145] The effect of the decision on the conviction appeal is that the sentence is reduced to a term of five years. I see no basis upon which to reduce it further.

[146] Having regard to R. v. Boudreault, [2018] 3 S.C.R. 599, [2018] S.C.J. No. 58, 2018 SCC 58, the victim surcharge must also be set aside.

Disposition

[147] For these reasons, I would allow the appeal from conviction on counts 1, 3, 4 and 5 of the indictment and enter acquittals on those counts. I would dismiss the appeal from conviction on counts 2 and 6.

[148] I would grant leave to appeal sentence on counts 2 and 6 but dismiss the appeal from sentence on those counts. In the result, the sentence is five years. The victim surcharge is set aside.

Appeal allowed in part.

End of Document