Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211118 DOCKET: C68812

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Abdullqadir Mohamud Appellant

Counsel: Chris Sewrattan and Ashley Sewrattan, for the appellant James D. Sutton, for the respondent

Heard: November 12, 2021

On appeal from the conviction entered by Justice J. Bourgeois of the Ontario Court of Justice on December 13, 2019.

Reasons for Decision

[1] The appellant was convicted after a trial by a judge alone of possession of crack cocaine for the purposes of trafficking. He appealed, claiming the verdict was unreasonable. At the end of oral argument, the court dismissed the appeal with reasons to follow. These are the reasons.

[2] An undercover officer arranged to purchase cocaine from a dealer named Capone. The undercover officer received a call telling him the drugs were “two minutes away”. A black Volkswagen pulled up and parked right in front of the undercover officer’s car.

[3] The driver of the Volkswagen motioned the undercover officer over to the vehicle. The undercover officer spoke with the driver and satisfied himself that the driver was there to deliver the cocaine the undercover officer had arranged to purchase from Capone. The officer told the driver he had to return to his car to get his money. Other officers moved in quickly and arrested the occupants of the Volkswagen.

[4] There were three people in the car. The appellant was seated in the front passenger’s seat.

[5] Various forms of contraband were found in different places in the car. A ripped plastic baggy containing 5.5 grams of crack cocaine was found on the front passenger seat where the appellant had been sitting.

[6] The appellant did not testify and did not call a defence.

[7] The trial judge acquitted the appellant on charges relating to the rest of the contraband found in the car, but convicted him of possession for the purpose of trafficking in respect of the crack cocaine found on the front passenger seat where the appellant had been sitting.

[8] The trial judge found, as a fact, that the appellant was either sitting on the baggy containing the crack cocaine, or had it between his legs when the police commenced the “takedown” at the vehicle. The trial judge rejected the submission that the baggy was placed on the seat during the “fracas” caused by the takedown. The trial judge also rejected the submission that the baggy was wedged between the front seat and the passenger side door of the vehicle.

[9] On appeal, the appellant submitted the conviction was unreasonable. Counsel argued the trial judge failed to consider that the appellant may have unwittingly sat on the baggy containing the cocaine and had no knowledge of the baggy or its contents. Counsel submitted that the suggestion the appellant could have unwittingly sat on the baggy was a reasonable one in the circumstances and could not be dismissed as speculation. It followed, argued counsel, that the Crown did not meet its burden of proving that the only reasonable inference from the evidence was that the appellant knew the baggy was on the seat and knew there was cocaine in the baggy.

[10] There is some attraction in the appellant’s argument. People unknowingly sit on objects on car seats from time-to-time. There was also no evidence other than the appellant’s presence in the vehicle when the drug transaction was to occur connecting the appellant to the drug sale arranged by the undercover officer with Capone.

[11] In response, the Crown emphasized two features of this case. First, the appellant did not testify and offer any explanation for how he came either to be sitting on the baggy or sitting with the baggy between his legs. As the Crown correctly observed, this court is entitled to consider the failure to testify in assessing the reasonableness of a verdict: R. v. Pannu, 2015 ONCA 677, at para. 175.

[12] Second, the Crown submitted that counsel for the appellant at trial did not suggest, among the various possibilities suggested by counsel, that the appellant may have been unknowingly sitting on the baggy containing the crack cocaine. Crown counsel argued that the failure of trial counsel to suggest his client may have been unknowingly sitting on the baggy speaks volumes about the reasonableness of the inference advanced for the first time on appeal. Crown counsel stressed that the bag contained hard, marble-like pieces of crack cocaine. He argued it would not be reasonable to infer that someone could be sitting on those objects without realizing it.

[13] In R. v. Villaroman, 2016 SCC 33, at para. 71, Cromwell J. said this about unreasonable verdict arguments in the context of circumstantial evidence cases:

It is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt.

[14] It is difficult for this court to reverse a conviction on the basis that the trial judge failed to consider a reasonable inference inconsistent with guilt when competent and diligent trial counsel for the appellant never suggested that inference was one which could reasonably arise on the evidence. The failure of counsel, who was obviously very familiar with the evidence, to suggest that it was reasonable to think the appellant may have been unknowingly sitting on the crack cocaine speaks to the implausibility of that explanation.

[15] As in Villaroman, this was not an overwhelming circumstantial case. We are satisfied, however, it was open to the trial judge to conclude beyond a reasonable doubt that the appellant had physical possession of the baggy containing the crack cocaine when the takedown occurred and knew what was in the baggy. The contents were plainly visible.

[16] The appeal is dismissed.

“Doherty J.A.”

“G. Pardu J.A.”

“J.A. Thorburn J.A.”