Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20221121 DOCKET: C69336

van Rensburg, Roberts and Sossin JJ.A.

BETWEEN

His Majesty the King Appellant

and

Raheem Abdelrahman Respondent

Counsel: Giuseppe Cipriano and Sébastien Lafrance, for the appellant Anthony Paas, for the respondent

Heard: November 7, 2022

On appeal from the acquittals entered by Justice Cindy A.M. MacDonald of the Superior Court of Justice, on March 31, 2021.

Reasons for Decision

[1] The Crown appeals on a question of law from the respondent’s acquittal on the offences of possession for the purpose of trafficking various controlled substances and proceeds of crime over $5,000. For the reasons that follow, we allow the appeal.

[2] The Crown’s case against the respondent was circumstantial. The police observed the respondent, in the company of his father, attending known drug locations and other locations for brief periods of time. Following police surveillance, the respondent, along with his brother, was arrested by the police in a hotel room containing drugs and cash that were seized by the police pursuant to a CDSA search warrant. The drugs were prepackaged into dime bags with a blue logo and concealed in a fanny pack hanging in a closet with a black jacket resembling the jacket the respondent wore while observed by the police during surveillance. In the sole suitcase in the hotel room were 15 envelopes, each bundled with $1,000 in cash. Also in the hotel room was a pair of pants in which were found the respondent’s identification, a keychain with several keys, and a rental receipt for an apartment in the name of Christopher Cheena.

[3] Later, while the police were waiting at the apartment for a search warrant, Christopher Cheena attempted to gain access, which was denied by the police. Upon entering and searching the apartment, the police found drug trafficking paraphernalia in plain view, including a scale, latex gloves, white envelopes, and zip lock baggies. The baggies had the same blue logo as the dime bags found in the hotel room. Keys from the keychain found in the pants at the hotel opened a safe and a suitcase. The safe contained fentanyl and other narcotics divided into dime bags, while the suitcase contained the respondent’s passport.

[4] The respondent brought a Charter application at trial to exclude the seized items and the case proceeded as a blended voir dire. The parties agreed to defer argument on the respondent’s Charter application pending the trial judge’s determination of the question of possession. It was conceded that if possession were found, it would be for the purpose of trafficking. The respondent did not testify or call any evidence. The trial judge examined the various pieces of the Crown’s case and determined that there was insufficient evidence to infer that the respondent had possession of the seized drugs and cash. As a result, the trial judge acquitted the respondent of the charges. The trial judge also acquitted the respondent’s father, but his acquittal is not the subject of this appeal.

[5] The Crown submits the trial judge erred by misapplying the analytical framework required for a circumstantial case. In particular, the Crown argues that the trial judge approached the evidence in a piecemeal manner, rather than considering the cumulative effect of the evidence as a whole, scrutinized individual pieces of evidence against a reasonable doubt standard, and required the Crown to negate speculative inferences. The Crown seeks a new trial.

[6] The trial judge’s assessment of the evidence and her determination of the inferences to be drawn from circumstantial evidence attract considerable deference on appeal, subject to reversible error. Absent a legally flawed approach to the evidence, the Crown is precluded from arguing that an acquittal is unreasonable because that position is incompatible with the presumption of innocence: R. v. Scott, 2021 ONCA 625, 406 C.C.C. (3d) 407, at para. 44; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. B.(G.), [1990] 2 S.C.R. 57, at pp. 70-71. Rather, the Crown has the heavy onus of demonstrating with a reasonable degree of certainty that the trial judge’s analytical approach amounted to legal error that might reasonably and realistically be thought to have had a material bearing on the acquittal: R. v. Palmer, 2021 ONCA 348, at para. 62; Scott, at para. 45. As we shall explain, the Crown has met that burden.

[7] The approach the trial judge takes to the evidence must be correct in law to ensure that the ultimate weighing of the evidence is not flawed. It is an error of law to examine individual pieces of evidence in isolation, subjecting each of them to the standard of proof beyond a reasonable doubt; they must be considered in the context of all the evidence: B.(G.), at pp. 76-7, Scott, at para. 47; Palmer, at para. 61. R. v. Button, 2019 ONCA 1024, at para. 9.

[8] Here, where proof of the offences depended on circumstantial evidence, the trial judge had to consider whether the only reasonable inference arising from the evidence was that the respondent was guilty of the charged offences, whether there were “other plausible theories and other reasonable possibilities which are inconsistent with guilt”, and whether any gaps in the evidence gave rise to a reasonable doubt. The difficulty here is that the so-called gaps identified by the trial judge were speculative. As Cromwell J. for a unanimous Supreme Court noted in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 36: “A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” The Crown was required to negative reasonable possibilities but did not have “to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37.

[9] The trial judge did not follow the correct analytical approach. She assessed the evidence in a piecemeal fashion and failed to heed the caution in Villaroman that alternative inferences inconsistent with an accused’s guilt must be reasonable, not just possible, and should not be speculative: at paras. 36-7. Reference to her treatment of the evidence found in the pants where the respondent was arrested suffices to exemplify her flawed treatment of all the evidence in this case.

[10] The police found the keys to the apartment where the safe containing the drugs and the suitcase holding the respondent’s passport were located, as well as a wallet with a rent receipt to the apartment and the respondent’s identification, in the pants found in the hotel room where the respondent was arrested. The trial judge considered each of these pieces of evidence separately, without considering their combined effect, and concluded that the fact that the keys were in the same pants “does not necessarily imply that [the respondent] knew what the keys were for, or that they were his keys.” Moreover, she concluded that “a receipt for October rent in someone else’s name may suggest that someone else actually left those keys and the receipt in those pants or with [the respondent] since the keys to the suitcase were on that same key chain. .… The keys have no reference to [the apartment].”

[11] The trial judge went on to dissect separately the significance of each of the other keys but without considering their cumulative effect:

One of the keys on the key chain opened the safe. Another key on the same key chain opened the closed suitcase that was located in the apartment. In that suitcase, a passport in the name of [the respondent] was located. .… As I mentioned above, this further suggests a connection to the contents of the suitcase, but it was just sitting in that apartment, locked. [The respondent] was never observed attending that apartment. There is absolutely no evidence to indicate how a suitcase with [the respondent’s] passport ended up at the apartment.

She concluded that “[t]here is insufficient evidence for me to conclude that [the respondent] was ever in that apartment. There is insufficient evidence to conclude that he had knowledge that the drugs were there or that he had joint possession of those drugs.”

[12] While the trial judge stated that she had to consider “all of the circumstantial evidence to see if it allows [her] to conclude that the only reasonable inference is that [the respondent] had knowledge and control or consent over the drugs in the safe”, she did not carry out this analysis. Rather, as the previous excerpt from her reasons shows, she took a piecemeal approach to the evidence.

[13] Each piece of evidence may not, by itself, have supported the inference of possession beyond a reasonable doubt. However, the trial judge was obligated to consider the combined effect of all of the evidence relevant to the issue of whether the respondent knowingly possessed the drugs and the cash seized by the police. She failed to step back and consider whether the only rational inference that could be drawn from the entirety of the evidence presented by the Crown was the appellant’s guilt beyond a reasonable doubt. For example, the trial judge never stood back and assessed the possible inferences arising from the combination of the facts that the pants containing the respondent’s identification also contained keys to the apartment, the safe and the suitcase, where drug trafficking paraphernalia, drugs and his passport were found. Those pieces of evidence, indicating a connection to an apartment that had every appearance of a stash house, combined with the other evidence from the surveillance of the respondent and his family members and his presence in a hotel room where drugs and cash were found, should have been considered in their entirety.

[14] Moreover, the trial judge’s conclusion that there was no evidence that the respondent knew the purpose of the keys found in the pants with his identification and her query as to how the suitcase ended up in the apartment was not the consideration of reasonable alternative inferences arising from the evidence or the absence of evidence but demonstrated speculation.

[15] Because of the trial judge’s flawed approach, “the persuasive effect of the totality of the evidence – the strength of the Crown’s case – was taken out of play”: R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 66, leave to appeal refused, [2012] S.C.C.A. No. 64. The Crown was entitled to but did not receive “a legally correct approach to the evidence that bears upon the determination of whether the onus has been met – a contextual approach based on a full evidentiary footing in which the proper standard of proof is applied”: Rudge, at para. 47. As a result, a new trial is required.

Disposition

[16] For these reasons, we allow the appeal, set aside the respondent’s acquittal on the charges, and order a new trial.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“Sossin J.A.”