Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220127 DOCKET: C68891

Feldman, MacPherson and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Salim Richard Glasner Appellant

Counsel: Tony Paciocco, for the appellant Allyson Ratsoy, for the respondent

Heard: January 20, 2022 by video conference

On appeal from the convictions entered on May 30, 2019 and the sentence imposed on December 4, 2019 by Justice Hugh R. McLean of the Superior Court of Justice.

Reasons for Decision

[1] At the conclusion of a two day trial in Ottawa in May 2019, the trial judge found the appellant guilty of six drug related charges in an eight count indictment – possession for the purpose of trafficking (heroin and fentanyl); possession for the purpose of trafficking (oxycodone); possession for the purpose of trafficking (carfentanil); two counts of possession of proceeds under $5,000; and breach of recognizance for failure to keep the peace and be of good behaviour. The appellant received a global sentence of seven years for these offences. The appellant appeals from the convictions.

[2] The Ottawa Police Service Drug Unit started surveillance at an Ottawa dwelling in July and August 2017. During surveillance, police observed some activity that was consistent with drug transactions, including short duration visits at the dwelling. They specifically observed the appellant outside but near the house engaging in transactions consistent with drug trafficking.

[3] On August 23, 2017, the police executed a warrant at the dwelling and found four adults inside. The police testified that the appellant and Tara Dawache were in the northeast bedroom, the appellant’s uncle Richard Glasner was in another bedroom, and Daniel Sevigny was downstairs.

[4] In the northeast bedroom, the police found quantities of heroin, fentanyl and carfentanil. Also in the room was an envelope addressed to the appellant at that address from a government institution. The police testified that both male and female clothing and shoes were found in this room.

[5] In the same bedroom, the police testified that they also found a pink backpack containing drugs. They also found baggies, $1,610 and Ms. Dawache’s identification.

[6] Downstairs, the police found heroin, fentanyl, buprenorphine and four scales (two operable). The police testified that they also found US $141.

[7] The trial judge convicted the appellant on six counts in the eight count indictment. He acquitted him of breach of recognizance for possession of drug paraphernalia and one count of possession of buprenorphine for the purpose of trafficking because Mr. Sevigny had a licence to obtain the drug, he was present in the house, and the drug was found near him.

[8] The trial judge delivered brief oral reasons almost immediately after hearing counsels’ closing submissions.

[9] The appellant appeals his convictions on two bases.

[10] First, the appellant contends that the trial judge erred by failing to provide sufficient reasons to permit meaningful appellate review.

[11] This is, as it should be, a difficult ground for an appellant to establish. The test for establishing it was articulated by McLachlin C.J. in R. v. R.E.M., 2008 SCC 51, at para. 55:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial.

[12] After engaging in the process mandated by the Chief Justice, we cannot say that the trial judge’s reasons in this case are insufficient. The reasons are brief (five pages) but that alone cannot be a subject of criticism. This was a short trial (about one and a half days of testimony) with five Crown police witnesses and no evidence called by the defence. And, more importantly in our view, “the trial judge appears to have seized the substance of the critical issues on the trial” as instructed by the Supreme Court in R.E.M.

[13] The evidence was overwhelming that drug transactions were taking place inside and very near the dwelling. The drugs and drug equipment inside the house and the police observations of activity inside and near the house confirm this.

[14] As well, the evidence supported the conclusion that it was the appellant who was engaged in the drug activities taking place inside and outside the house. It was not contested that the appellant lived in the house and police testified they found men’s clothing and shoes in the bedroom. Police found an envelope addressed to the appellant at the dwelling and they testified that a bag of drugs was found directly on top of the envelope. Over several days of surveillance, numerous people attended the residence for short visits which a police expert testified were consistent with drug trafficking. And outside but near the house, the police saw the appellant engaging in transactions consistent with drug trafficking.

[15] Second, the appellant submits that the trial judge erred by failing to properly apply the law of possession for possession-based offences. He says that for all forms of possession (personal, constructive, joint), it is necessary to prove beyond a reasonable doubt both knowledge of the presence of the property in question and at least some measure of control over it: see R. v. Morelli, 2010 SCC 8, at para. 15.

[16] The appellant asserts that the trial judge was silent on the control component of the test. He says that the trial judge spoke in terms of “necessary indicia of possession of the drugs” but never uses the word “control” or provides reasons that suggest he is grappling with this component of the test for possession. Given that there appeared to be several (as many as four) occupants of the house, the appellant argues that this omission amounts to an error of law.

[17] We do not accept this submission. The police surveillance evidence established that the appellant was engaged in what looked like drug transactions outside but near the house and that he was present inside the house when people would come to it, enter, and leave soon after with what appeared to be a clenched fist consistent with a drug purchase. Moreover, drugs were found in a bedroom, with the appellant present in it, with men’s clothing and shoes and an envelope with his name on it. As well, downstairs the police found a card with the appellant’s name and date of birth written on it.

[18] Given all this evidence, it is obvious that the appellant both possessed and controlled the drugs. It is true that the other occupants of the house, especially Tara Dawache, might also have possessed the drugs. Possession might have been joint, for at least some of the drugs. However, joint possession is inclusionary, not exclusionary, because two or more people can have knowledge and control over the property in question.

[19] In summary, the trial judge’s reasons, albeit brief, adequately address the two central issues at the trial – was unlawful drug activity taking place at the dwelling and was the appellant involved in that activity.

[20] With respect to count two in the indictment, the Crown concedes that the appeal should be allowed. There was no evidence that the appellant had knowledge and control of the oxycodone pills found in the pink backpack in the bedroom. The backpack contained Ms. Dawache’s identification and the surveillance did not establish that the appellant had ever been seen carrying it.

[21] The appeal is allowed with respect to count two in the indictment and the conviction is set aside. On all the other counts, the appeal is dismissed. Although the notice of appeal with respect to sentence was filed, the appellant made no submissions on sentence. Accordingly, we would dismiss the sentence appeal.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“J.A. Thorburn J.A.”