COURT OF APPEAL FOR ONTARIO DATE: 20210504 DOCKET: C66373
Rouleau, Pepall and Roberts JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Elia Simon Awad Appellant
Counsel: Howard L. Krongold, for the appellant Christa Reccord and Brigid Luke, for the respondent
Heard: March 17, 2021 by video conference
On appeal from the convictions entered on August 15, 2018 by Justice Michelle O’Bonsawin of the Superior Court of Justice, with reasons reported at 2018 ONSC 4901.
REASONS FOR DECISION
[1] The appellant appeals from his convictions for possession of almost one kilogram of cocaine for the purpose of trafficking and for possession of the proceeds of crime in the amount of $1,990.
[2] The Ottawa Police Service conducted surveillance of the appellant for 23 days in connection with suspected drug trafficking activities. The surveillance revealed that the appellant and his associates had frequently engaged in various activities consistent with drug trafficking, such as short meetings on streets, in public parking lots, or in the parking lot of the garage next to the appellant’s residence, hand-to-hand transactions, and counter-surveillance manoeuvres. A few weeks before his arrest on the cocaine-related charges, police observed the appellant helping an associate to mail coffee tins full of marijuana to Nunavut. The appellant was arrested and charged with various offences related to trafficking in marijuana, but those charges were subsequently withdrawn.
[3] The police obtained four search warrants to search the appellant’s residence and three other locations related to him or his associates. While the police were in the process of executing a search warrant at the appellant’s residence, the appellant arrived in the front passenger seat of a car driven by George Abou-Eid. Mr. Abou-Eid attempted to drive away but his car became stuck in the snow. Officer Grenier was wearing his police takedown vest on which POLICE was written in big white letters. He reached the front passenger corner of the car, banged on the hood, and yelled for the driver to stop. The appellant was locked in a stare with Officer Grenier who concluded that he had his hands close together towards the floor area in front of the passenger seat at his feet. Officer Grenier drew his firearm to address the potential of the appellant retrieving a weapon from the area of his feet and to address the vehicle not stopping. The car stopped. Officer Grenier observed a grey plastic bag partially sticking out from under the front passenger seat. The package was wedged fairly snuggly under the seat and he had to use a little bit of force to pull it out. His search of the car disclosed a 985.85-gram brick of cocaine wedged under the passenger seat where the appellant had been sitting. Cash in the amount of $1,990 was seized from the appellant’s jean pocket at the time of his arrest.
[4] The appellant submits that the trial judge made several errors: she incorrectly used his apparent involvement in marijuana trafficking as evidence of his involvement in cocaine trafficking; she failed to make the necessary finding that the appellant’s observed alleged trafficking activities were related to cocaine trafficking; she failed to find that Mr. Abou-Eid had sole possession of the cocaine in the car that he rented and was driving at the time of the takedown by police; and she faulted the appellant for his failure to testify. He submits that the proceeds of crime conviction arises from and falls with the cocaine conviction. Finally, he submits that the proviso cannot be used to correct the trial judge’s errors: while it was not an unreasonable verdict, this was not an overwhelming case for the Crown where an acquittal would have been impossible to obtain.
[5] We do not accept these submissions.
[6] First, the trial judge did not misuse the evidence of the appellant’s apparent involvement in marijuana trafficking or engage in prohibited propensity reasoning, as the appellant alleges. The appellant points to the trial judge’s reasons at para. 118 as evidencing the prohibited propensity reasoning that, because the appellant was a drug dealer, he was trafficking cocaine. Moreover, the appellant argues, the trial judge erred in failing to grasp the exculpatory distinction of the appellant being a marijuana trafficker but not a cocaine trafficker.
[7] As a starting point, Crown counsel expressly submitted that the Crown was not seeking to use the evidence of the appellant’s drug trafficking activities for propensity purposes but as evidence that the appellant ran a large drug-trafficking scheme.
[8] We do not read the trial judge’s reasons in the way that the appellant suggests. In para. 118 of her reasons, the trial judge concluded that the appellant’s apparent engagement in marijuana trafficking was “not a relevant consideration” because of the expert evidence that drug dealers could traffic in more than one kind of drug. As a result, she rejected, as she was entitled to do, the defence argument that the evidence of the appellant’s participation in marijuana trafficking, including the mailing of the marijuana-filled coffee cans and the seizure of marijuana and related paraphernalia from his residence, negated or undermined the conclusion that he was involved in cocaine trafficking.
[9] Further, the trial judge was not required to conclude that the appellant’s observed trafficking activities involved cocaine before she could link those activities to the cocaine under his seat. The surveillance evidence was only one part of all the evidence that the trial judge considered. The Crown explicitly proffered the surveillance evidence of the appellant’s involvement in marijuana trafficking, and drug trafficking generally, in relation to the appellant’s knowledge and control of the cocaine under the front passenger seat of the car. Trial counsel for the defence agreed that the trial judge would have to look at this surveillance evidence, but he argued that there may be innocent explanations for the recorded activities. Consistent with the submissions of counsel, the trial judge stated at para. 114 of her reasons: “Furthermore, I must consider the surveillance evidence in the context of the evidence as a whole. It is clear that this plays a significant role in my assessment of the elements of constructive possession.”
[10] The trial judge did not consider the evidence in a piecemeal fashion. She correctly instructed herself that she was required to review “all the relevant facts presented in totality to determine whether [the appellant] personally or jointly possessed what was being transported in that vehicle”. The appellant’s involvement in drug trafficking as revealed by police surveillance was only one of the several pieces of circumstantial evidence upon which the trial judge was entitled to rely to ground her finding that the appellant was guilty of possession of cocaine for the purpose of trafficking. The trial judge’s reasons demonstrate that she considered the totality of the evidence. As the appellant’s trial counsel submitted, it is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists.
[11] This evidence also included the unchallenged expert evidence that the appellant’s observed activities were consistent with drug trafficking and that drug traffickers often deal in more than one type of drug, work with associates or runners, and use different locations such as safe residences or stash houses. The trial judge also accepted the expert testimony that it was highly unlikely that one kilogram of cocaine was left in the car with individuals who did not know it was there, and that this brick would likely be re-pressed or cut into smaller quantities and mixed with cutting agents for sale. She noted the drugs, digital scales, and drug paraphernalia that were seized at the appellant’s residence and the other locations associated with him or his associates, including various baggies that would not be used for marijuana, cocaine-cutting agents, and a large cocaine press. She concluded that the garage attached to the appellant’s residence was not a functional garage but the appellant’s “hub” where he had drug-related meetings and exchanges. She accepted the Crown’s theory that the appellant was running a large drug operation. Finally, the trial judge relied on the appellant’s close proximity to the cocaine under his seat and found that his crouched movements upon arrest were attributable to him trying to push the brick of cocaine under his seat.
[12] With respect to the appellant’s argument concerning Mr. Abu-Eid, the trial judge expressly considered the alternatives of sole or joint possession and her reasons are responsive to the chief defence argument that Mr. Abu-Eid and not the appellant was the cocaine trafficker. The trial judge was not obliged to conclude that Mr. Abu-Eid alone possessed the cocaine found in the car he was driving or that it should leave her with a reasonable doubt of the appellant’s guilt. The fact that upon his arrest Mr. Abu-Eid had on his person a small amount of cocaine, consistent with personal use, that could have come from the brick found under the passenger seat of his rental car, was not dispositive of this issue. Based on the evidence that we have just reviewed, it was open to the trial judge to conclude that the appellant possessed the cocaine alone or jointly with Mr. Abu-Eid. Proof of possession does not require exclusivity.
[13] Finally, the trial judge did not draw any adverse inference or inference of guilt from the appellant’s silence. Rather, she rejected the theories raised by the defence as being speculative and not based on any evidence, since the appellant elected not to testify. It was open to her to conclude that the silence of the appellant “failed to provide any basis for concluding otherwise once [she determined that] the uncontradicted evidence pointed to guilt beyond a reasonable doubt”: R. v. Noble, [1997] 1 S.C.R. 874, at para. 82.
[14] We see no error or basis for appellate intervention. Given this disposition, it is not necessary to determine if the proviso would apply.
[15] The appeal is dismissed.
“Paul Rouleau J.A.”
“S.E. Pepall J.A.”
“L.B. Roberts J.A.”