Court of Appeal for Ontario

Citation: R. v. Savory, 2022 ONCA 132 Date: 2022-02-11 Docket: C66294

Before: Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Craig Savory Appellant

Counsel: Mark Halfyard, for the appellant Marie Comiskey, for the respondent

Heard: February 10, 2022 by video conference

On appeal from the conviction entered by Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on September 26, 2018.

Reasons for Decision

[1] The appellant stands convicted of possession of cocaine for the purpose of trafficking.

[2] Almost 2.5 kilograms of cocaine were found in a hidden compartment located in the backside upholstery of the front passenger seat in the appellant’s SUV. The sole issue at trial was possession, specifically whether the appellant knew that the cocaine was in his vehicle. The sole issue on appeal is whether the jury’s verdict is an unreasonable one.

[3] The appellant argues that there was little evidence to support the conviction in this case. As he points out, despite being under on-and-off surveillance for over a year, he was never seen accessing the secret compartment. Nor did his minimalist lifestyle lend support to the theory that he was a drug trafficker, operating in high amounts of cocaine.

[4] The appellant pointed to his brother as the likely culprit. The appellant’s brother, a previously convicted drug dealer and someone who was also found to possess drug paraphernalia around the same time as the appellant’s arrest, had gifted him the vehicle. The appellant testified that his brother continued to access the SUV with the appellant’s permission, right up to the day prior to the search.

[5] Against that factual backdrop, the appellant hypothesizes that the jury may have come to their erroneous conclusion on what is described as a weak yet legally correct instruction on circumstantial evidence. If a more robust instruction had been given, one that exceeded the specimen jury instructions, then the jury may not have been so quick to fill in the evidentiary blanks with guilty inferences.

[6] The appellant emphasizes that his view of the case was shared by the trial judge. At sentencing, the trial judge expressed the view that “she may not agree” with the verdict, that she “would have done something different”, and that she was “sympathetic” to the appellant. While the appellant acknowledges that the trial judge’s view of the case is not determinative of this appeal, he argues that the fact that she expressed such strong sentiments about the jury’s verdict goes some distance to raising concerns over whether the verdict was in fact unreasonable.

[7] In the end, the appellant argues that the conviction in this case represents a perverse verdict, one that no properly instructed jury acting reasonably could have rendered.

[8] We do not accept this submission. While it is correct that the trial judge expressed the view that she may well have arrived at a different verdict, the voicing of that thought did not render the verdict unreasonable. The appellant exercised his right to a jury trial. Having done so, the jury became the fact finder in this case, and “[a]ny judicial system must tolerate reasonable differences of opinion on factual issues”: R. v. Biniaris, 2000 SCC 15, at para. 24. This may well be one of those cases.

[9] Our task is not to displace the jury’s verdict because the trial judge may have come to a different conclusion. Rather, our task is to consider whether, based upon the totality of the evidence, the admittedly properly instructed jury could have arrived at the verdict.

[10] The evidence in this case included the following:

• The SUV was registered to and legally owned by the appellant for almost two year prior to the search;
• He was seen driving that vehicle on multiple occasions in that time frame;
• During the last 14 months prior to the search, the appellant was the sole person seen by surveillance officers driving that vehicle, meaning that his brother was never seen driving it;
• The appellant had children whose car seats – which he had installed – were in the backseat of the vehicle, from which the secret compartment was visible;
• Indeed, one of the car seats was so close to the secret compartment that an officer testified that a child’s feet could touch it;
• The appellant was seen by surveillance putting his children into the backseat of the car; and
• The police discovered the secret compartment because it “looked weird”, describing it as a large upholstered panel affixed to the back of the seat with a gap as wide as about two centimeters, which allowed an officer to put his fingers behind the panel and pull it back, revealing plastic bags containing all of the cocaine.

[11] That evidence, combined with the sheer value of 2.48 kilograms of cocaine, a quantity of cocaine that was unlikely to have been left by anyone in the appellant’s unwitting control, made for a factual case upon which a properly instructed jury could reasonably arrive at a conclusion of guilt.

[12] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David M. Paciocco J.A.”