Court of Appeal for Ontario

Date: 20210319 Docket: C66597

Judges: Watt, Benotto and Jamal JJ.A.

Between:

Her Majesty the Queen Respondent

and

Abadula Biya Appellant

Counsel: Najma Jamaldin, for the appellant Jeremy D. Tatum, for the respondent

Heard: March 3, 2021 by video conference

On appeal from the conviction entered on August 8, 2018 and the sentence imposed on December 14, 2018, with reasons reported at 2018 ONSC 6887, by Justice Carole J. Brown of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant, Abadula Biya, appeals his conviction and sentence for charges relating to the unauthorized possession of a firearm and ammunition, possession of a Schedule I controlled substance (MDEA) for the purpose of trafficking, and possession of the proceeds of crime in the amount of $1,725.

[2] The appellant’s main argument on the conviction appeal is that the trial judge materially misapprehended the evidence in rejecting the appellant’s third party suspect defence. The appellant claims this error leaves the trial judge’s reasoning on which the conviction depends on unsteady ground, resulting in a miscarriage of justice.

[3] We agree with the appellant. For the reasons that follow, we allow the appeal, quash the conviction, and order a new trial.

Background

[4] On September 11, 2015, the police received a tip that a person was selling drugs outside a Drake concert at Ryerson University. The person was described as a black male with cornrows, wearing a black t-shirt, and carrying a bouquet of flowers and a red and black GoodLife gym bag.

[5] Police officers located a person matching this description talking to two other men at a gas station. The police watched the three men and noticed that when a mounted police unit approached the area the men slinked back into the gas station. When a second mounted police unit approached, the men retreated further and entered a Honda SUV parked at the gas station. The appellant had the gym bag and bouquet with him when he entered the driver’s seat of the Honda. The officers did not see who had control of the gym bag after the three men entered the Honda.

[6] A group of uniformed police officers and two plainclothes officers huddled for between one to two minutes about 30 metres from the Honda. The men inside the Honda could see the officers. The police believed the men inside the Honda noticed the officers approaching when they were 5 to 10 metres away. The officers could see the appellant, who was in the driver’s seat, and Simeon George-McCool, who was in the front passenger seat. They could not see Jevon Moore, who was in the back seat directly behind George-McCool. The appellant’s gym bag and flowers were also in the back seat directly behind the appellant.

[7] Six uniformed officers rode their bicycles towards the Honda. This took about 30 to 40 seconds. As the police approached they saw the appellant appear nervous and wide-eyed. He shoved his hand between the door and the seat and then into the pockets of his pants. An officer also saw George-McCool in the front passenger seat appearing to move quickly and looking towards the back seat. But the officers could not see Moore in the back seat.

[8] Two officers approached on the driver’s side and smelled marijuana. Based on that smell and the appellant’s apparent nervousness, the occupants were arrested and directed to get out of the car. Moore and George-McCool got out voluntarily and complied with the police. The appellant did not comply and was forcibly removed. He resisted arrest but was quickly subdued.

[9] The police searched the three men incident to arrest. On George-McCool the police found cocaine, marijuana, and MDMA in the bag he was carrying as he got out of the car, three cellphones, and $1,070 in cash. On Moore the police found $1,080 in cash but no drugs or drug packaging. On the appellant the police found packaged marijuana and $1,725 in cash. In the driver’s seat area the police found a cellphone and a digital scale.

[10] The police searched the gym bag incident to arrest and at the bottom of the bag found a handgun, ammunition, a bottle of MDEA pills, and packaging like that used in the packaged marijuana found on the appellant. They also found some of the appellant’s personal items, including two condolence cards (the appellant was going to a funeral visitation for a friend’s mother later that night).

[11] All three men were charged with various offences. The charges against Moore were later withdrawn before trial.

The Trial Judge’s Decision

[12] The appellant and George-McCool were tried together.

[13] The trial judge convicted George-McCool of possession of cocaine and MDMA for the purpose of trafficking. The trial judge inferred from the quantities of drugs he had in his bag as he got out of the car that the drugs were in his possession for the purpose of trafficking rather than personal use. George-McCool did not appeal his conviction.

[14] Neither the appellant nor Moore testified. The appellant did not dispute he had knowledge and control of the marijuana found on his person, but he did dispute any knowledge of or control over the gun, magazine, and pills in the gym bag. His defence centred on Moore as a third party suspect. He posited that Moore had one to two minutes in the back seat to place the contraband in the bag while the officers huddled across the street and then approached the car in plain view of the three suspects. He claimed that Moore had on his person a quantity of cash consistent with drug trafficking but no contraband because he had stashed it in the gym bag. The appellant also adduced Moore’s criminal record for gun and drug trafficking offences to show his propensity as a third party suspect.

[15] The trial judge rejected the appellant’s third party suspect defence and convicted the appellant. She found that Moore did not have the time to remove the magazine from the handgun and to stow the handgun, magazine, and bottle of pills at the bottom of the bag. She also found that Moore did not have the opportunity and propensity to have had the firearm, ammunition, and pills on his person and to have put them surreptitiously in the gym bag as the police approached. She found there was no real evidence for this proposition, which she found was speculative. Finally, the trial judge found overwhelming evidence that the appellant had knowledge of and control over the contraband in the gym bag. She noted that the packaging in the bag resembled the packaging of the marijuana found on the appellant; the condolence cards were for a visitation the appellant was to attend that evening; the appellant had been seen carrying the gym bag; drugs such as MDEA are often sold at concerts, where the appellant was arrested; and the cash found on the appellant was in smaller denominations.

[16] The trial judge sentenced the appellant to four years’ incarceration, less credit for pre-trial custody and bail conditions, and various ancillary orders.

[17] The appellant now appeals his conviction and seeks leave to appeal his sentence.

Discussion

[18] Although the appellant advances several grounds of appeal from conviction and sentence, we have concluded that the appeal should be allowed because the trial judge materially misapprehended the evidence in concluding that Moore lacked enough time to remove the magazine from the gun and place it in the gym bag. The trial judge then repeated this error in concluding that Moore did not have the propensity and opportunity to have placed the contraband in the bag. These errors led the trial judge to conclude erroneously there were no reasonable possibilities inconsistent with the appellant’s guilt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37.

[19] The uncontradicted evidence was that the police huddled for one to two minutes and then took another 30 to 40 seconds to bike to the car, all while in plain view of the car’s occupants. The elapsed time was therefore between 1 minute 30 seconds and 2 minutes 40 seconds, during which the police could not see Moore because he was in the back seat.

[20] The trial judge explained her reasons for concluding that Moore did not have enough time to stow the contraband in the gym bag as follows:

… I am not satisfied that it would have been possible within the timeframe from the police approaching the vehicle to Mr. Moore and Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken all the items from his person and put them in the bag, and particularly taking the magazine out of the handgun and stowing the handgun, ammunition, and drugs at the bottom of the bag under all of the other contents. I do not find this to be feasible and reject this argument. [Emphasis added.]

[21] However, there was no evidence before the trial judge as to how long it would have taken to remove a magazine from a gun, or this magazine from this gun. There was also no evidence that the magazine was even in the gun and needed to be removed. The trial judge therefore misapprehended the evidence on this point.

[22] The Crown concedes that the trial judge misapprehended the evidence but contends the misapprehension was not material. The Crown asserts that even if this finding is excised, the other evidence the trial judge relied on allowed her to conclude that Moore had insufficient time to put the contraband in the gym bag.

[23] We do not accept this submission. The trial judge herself highlighted that her conclusion was based “particularly” on the lack of time to remove the magazine from the gun. Her own wording suggests this error about the substance of the evidence was material to her reasoning in rejecting the third party suspect defence. Striking this error in the assessment of the evidence from the judgment leaves the trial judge’s reasoning on which the conviction depends on unsteady ground, leading to a miscarriage of justice: see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; and R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541.

[24] The trial judge repeated this error in concluding that Moore did not have the opportunity and propensity to have surreptitiously placed the contraband in the bag as the police huddled and approached the car. She stated:

It is the position of [counsel] on behalf of [the appellant] that the police had huddled with [one of the other police officers] for one to two minutes before they approached the car, and that the lapse of time was sufficient for Mr. Moore to have taken the seized items from his person and put them into the gym bag in the back seat behind the driver’s seat. As set forth above, I do not accept the arguments of counsel for [the appellant], which suggests that Mr. Moore had the opportunity and propensity to have had the firearm, ammunition, and drugs on his person and put them surreptitiously into the gym bag when the police approached the vehicle. There is no real evidence for this, and I find the proposition to be speculative. I reject the submission. [Emphasis added.]

[25] The trial judge did not separately address Moore’s opportunity and propensity. She seems to have rejected the appellant’s third party suspect defence only because she found that Moore lacked opportunity.

[26] However, Moore’s criminal record provided a reasonable basis to claim he had the propensity to have placed the contraband in the gym bag: see R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 141; R. v. Tomlinson, 2014 ONCA 158, 207 C.C.C. (3d) 36, at para. 76. His criminal record included several recent firearms and drug-related convictions: for robbery with a firearm in 2012; possession of a Schedule I substance in 2014; possession of an unauthorized firearm, breach of a firearm prohibition order, and possession of a Schedule I substance in June 2014; possession of an unauthorized firearm and breach of a firearm prohibition order in July 2014; and trafficking in a Schedule I substance in 2015. The trial judge thus erred in summarily rejecting the third party suspect defence.

Conclusion

[27] The trial judge erred by convicting the appellant based on a material misapprehension of the evidence about Moore’s opportunity as a third party suspect. There was also evidence that Moore had the propensity as a third party suspect, which the trial judge failed to address. The trial judge’s errors leave the conviction on unsteady ground and resulted in a miscarriage of justice.

[28] Because there was evidence on which a properly instructed trier of fact could reasonably have convicted the appellant, the appropriate remedy is to order a new trial on all counts under s. 686(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46: see Morrissey, at p. 540. There is no need to address the appellant’s request for leave to appeal the sentence.

Disposition

[29] The appeal from conviction is allowed, the appellant’s conviction is quashed, and a new trial is ordered on all counts.

“David Watt J.A.”

“M.L. Benotto J.A.”

“M. Jamal J.A.”