Court of Appeal for Ontario

Date: 2023-08-31 Docket: C68691 & C68694

Before: Trotter, Thorburn and Coroza JJ.A.

Docket: C68691

Between: His Majesty the King Respondent

And: Floriano Sylvester Daponte Appellant

Docket: C68694

And Between: His Majesty the King Respondent

And: Vivian Lee Hamilton Appellant

Counsel: Mark C. Halfyard, for the appellant Floriano Sylvester Daponte Etai Hilzenrat, for the appellant Vivian Lee Hamilton Christopher Walsh, for the respondent

Heard: April 13, 2023

On appeal from the convictions entered by Justice Marc A. Garson of the Superior Court of Justice on February 4, 2020, with reasons at 2020 ONSC 755, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellants, Floriano Sylvester Daponte and Vivian Lee Hamilton, were jointly convicted of five counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), three counts of simple possession contrary to s. 4(1) of the CDSA, and one count of possession of the proceeds of crime exceeding $5,000 contrary to s. 354(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] On August 13, 2017, the Ontario Provincial Police executed a search warrant at the appellants’ farm property (the “property”). Prior to this day, the police conducted limited surveillance of the property in 2016 and 2017. There was no dispute at trial that both appellants were connected to the property. Ms. Hamilton was the registered owner. During the search, the police discovered a significant quantity of drugs worth over $800,000 including fentanyl, cocaine, morphine, and oxycodone, and $82,020 in cash buried under a tarp-covered riding lawnmower in a drive shed on the property. The buried drugs and cash were contained in various plastic baggies, including some small zip-top baggies with a red stripe, inside tobacco containers.

[3] Inside the house, the police located two similar tobacco containers, zip-top baggies, including the small ones with a red stripe, two digital scales, and another $1,860 in cash.

[4] Victor Colpaert, a farm labourer with a criminal record for drug-related offences, lived on the property in a separate shed during weekdays. His shed had no plumbing or running water. During their surveillance, the police observed Mr. Colpaert digging near this shed. When the search warrant was executed, Mr. Colpaert was not on the property. The police searched his shed and found a spoon and a filter that may have been related to drug use. Mr. Colpaert was arrested a month later at a different location, but his charges were later withdrawn.

[5] The bulk of the police observations with respect to Ms. Hamilton and the property took place in November 2016, and were limited to observing her doing mundane tasks. She was not seen on the property during the limited surveillance in 2017 because she was out of the country. She promptly surrendered herself after being made aware of these charges.

[6] Mr. Daponte was regularly seen on the property, often tending to livestock, or greeting visitors. On the morning of the day the search warrant was executed, the police observed Mr. Daponte meeting a male on the property and walking towards the barn. The police also observed Mr. Daponte feeding and tending to animals around the barn and entering the drive shed where the drugs were seized.

[7] Mr. Daponte was the only person found on the property when the warrant was executed.

[8] At trial, the appellants argued that the drugs in the drive shed could have belonged to Mr. Colpaert. They pointed to the observations of him digging in 2016 as consistent with a person who hid drugs in the ground and submitted that he was an alternative suspect who raised reasonable doubt about their possession of the drugs in the drive shed. The trial judge rejected this argument and convicted both appellants, “either jointly or constructively.”

Issues Raised on Appeal

[9] The appellants jointly raise the following grounds of appeal:

a. The trial judge reversed the burden of proof in assessing alternative inferences in relation to Mr. Colpaert; b. The trial judge erred in finding it was “speculative” that Mr. Colpaert had access to the residence; c. The trial judge improperly used the fact that the appellants did not testify in determining guilt; d. The verdicts are unreasonable as there were alternative inferences available other than guilt.

[10] Furthermore, Ms. Hamilton raises a fifth ground of appeal, alleging that the trial judge provided insufficient reasons as to why her absence from the country had no impact on the circumstantial case against her. For simplicity, we consider this ground as part of the unreasonable verdict argument.

[11] For the reasons that follow, Mr. Daponte’s appeal is dismissed. Ms. Hamilton’s appeal is allowed, and acquittals are substituted. [1]

Analysis

[12] The first three grounds of appeal take issue with the trial judge’s treatment of Mr. Colpaert as an alternative suspect. The parties agreed that Mr. Colpaert had regular access to the property because he worked with animals and birds on the property, and that he lived in a shed on the property during weekdays. The shed contained a bed and a table, but no running water.

[13] When he was arrested, Mr. Colpaert admitted to the police he was a “pothead.” His criminal record was admitted at trial and included convictions for possession of fentanyl for the purpose of trafficking and simple possession of cocaine, marijuana, and methamphetamine.

(1) The trial judge did not reverse the burden of proof

[14] The trial judge rejected the appellants’ argument that Mr. Colpaert could have buried the drugs in the drive shed. He noted that “[c]ommon sense, logic, reason and human experience all suggest that more than $800,000 of controlled substances and drugs and more than $80,000 of currency are not solely those of a ‘pothead’ who lived during the weekdays in a shed without running water.” Later in his reasons, the trial judge wrote:

Looked at in its totality, Mr. Colpaert’s presence and part-time residence at the property, his criminal background, and his post-offence behaviour fall short of sufficiently deflecting attention from the defendants or from satisfying me that he was solely in possession of the seized drugs and currency.

[15] The appellants argue that in this passage, the trial judge reversed the burden of proof in assessing the evidence of Mr. Colpaert and placed a burden on them to “satisfy” him that Mr. Colpaert was solely in possession of the drugs in the drive shed.

[16] We are not persuaded by this submission. In our view, it is clear from the reasons as a whole that the trial judge did not reverse the onus. To begin, he explicitly stated at para. 75 of his reasons that the onus rested squarely on the Crown to prove possession of the drugs and money beyond reasonable doubt.

[17] As we read his reasons, the trial judge proceeded in two steps. First, he considered the appellants’ connection to the property, and had no difficulty in finding one. Second, he assessed whether the Crown had proved that the appellants had knowledge of the drugs and money found in the drive shed. In doing so, he considered the appellants’ arguments that the drugs and money found in the drive shed were Mr. Colpaert’s, and that he had acted unilaterally without their knowledge. The trial judge considered the evidence in relation to Mr. Colpaert and concluded that it did not cause him to have a reasonable doubt about the appellants’ guilt. Lastly, he considered whether a stranger may have placed the drugs there and dismissed the idea as pure speculation. Taken in isolation, the trial judge’s reference to “deflecting attention away from the defendants”, is problematic. However, when his reasons are viewed in totality, there is no basis to conclude that the trial judge shifted the burden of proof.

(2) The trial judge did not err in finding it was speculative that Mr. Colpaert had access to the residence

[18] Next, the appellants take issue with the trial judge’s rejection of their argument that Mr. Colpaert had regular access to the residence on the property. This connection was important, the appellants submit, because the trial judge found that the similarity between the items found in the residence and the drive shed was a powerful link between the occupants of the residence and the drugs and money found in that drive shed. They submit that the trial judge committed palpable and overriding errors in disregarding their arguments that Mr. Colpaert did have access to the residence, he could have accessed the residence without entering police surveillance, and that since his shed had no bathroom or running water, the only rational inference to be drawn from the evidence is that he used the bathroom in the residence.

[19] We do not accept this submission. The appellants attempt to relitigate these facts before this court in the absence of any palpable and overriding error. In our view, it was open to the trial judge to reject the argument. As the trial judge noted, there was no evidence that Mr. Colpaert ever had access to the residence, let alone regular access. The trial judge observed that “no documents, business cards, or other connecting items belonging to Mr. Colpaert were found in the main residence. Surveillance did not observe him to either enter or exist the main residence.” For those reasons, the trial judge rejected the suggestion that Mr. Colpaert regularly accessed the residence as speculation. We see no basis to intervene.

(3) The trial judge did not improperly use the fact that the appellants did not testify

[20] Although not pressed in oral argument, the appellants attack the trial judge’s observations that “[a]lthough the failure of the defendants to testify does not justify an inference of guilt, it does create an absence of an innocent explanation of inculpatory facts.” The appellants submit that the trial judge in effect used their failure to testify as a makeweight for the Crown in proving its case, contrary to the principles in R. v. Noble, [1997] 1 S.C.R. 874, at paras. 77-81. Specifically, the appellants argue it was wrong for the trial judge to consider their failure to testify as negating innocent explanations for inculpatory facts. There were other reasonable inferences available from the evidence and the lack of evidence, regardless of whether the appellants had testified.

[21] We see no merit to this submission. The trial judge did not use the appellants’ silence to draw an inference of guilt, or as a piece of inculpatory evidence. Rather, the trial judge found on the circumstantial evidence, viewed in totality, that he could reach no reasonable conclusion other than that the appellants had knowledge and control over the drugs and money in the drive shed. Trial judges are permitted to find that an accused’s silence “fails to provide any basis for concluding [innocence] once the uncontradicted evidence points to guilt beyond a reasonable doubt”: Noble, at para. 82. That is what the trial judge did here.

(4) The reasonableness of the verdicts

[22] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. In his reasons for judgment, after noting that occupancy alone did not establish possession of the drugs and money found in the drive shed, the trial judge considered the following facts in concluding the appellants had knowledge or control of the drugs and currency seized:

a. Mr. Daponte was the only person found on the property during the execution of the search warrant and based on the presence of items in the kitchen counter and stove, among others, it was reasonable to infer that he was an occupant and residing there on August 13, 2017; b. Although there was no direct evidence that Mr. Daponte possessed a key that opened the garage door or the door to the residence, surveillance of him entering and exiting supported the reasonable inference that he had access to a key to enter these premises; c. Based on his being seen at various locations on the property, and his being referenced on business cards associated with the farm, it was reasonable to infer he had regular access to other structures on the property, including the drive shed; d. Very similar items were found in the residence to those used to contain the drugs in the drive shed, including red zip-lock baggies, cigarette containers, and pill bottles; e. The significant quantity of drugs seized led to a reasonable inference that such a cache would not be entrusted to any person not aware of the contents of the containers (see R. v. Sandhu, 2017 ONCA 709, at para. 4); f. The hiding spot for the drugs was “very crafty” and the containers were “extremely well concealed”, leaving little concern regarding detection. This undercut the defence position that the absence of a lock on the shed in which the drugs were found ought to militate against knowledge and control. Put another way, whoever possessed these drugs took significant, deliberate, and careful steps to conceal them.

[23] In our view, the evidence against Mr. Daponte was cogent, and the trial judge’s conclusion that he had knowledge and control of the drugs and cash buried in the drive shed was reasonable. As noted above, the trial judge properly considered and rejected alternative inferences. We therefore dismiss Mr. Daponte’s appeal.

[24] However, we are of the view that the verdict against Ms. Hamilton is unreasonable. Respectfully, there was insufficient evidence from which a trier of fact could infer that she knew of the drugs and currency, or consented that they be on her property. While the trial judge relied on the evidence of what was found in the house to convict Ms. Hamilton, the Crown had to prove that Hamilton had knowledge and control of the buried drugs in the drive shed. While there is no question that she was the owner of the property, and lived there, we are of the view that her connection to the drive shed was extremely tenuous. The surveillance conducted in 2017 did not have her present on the property, and there was no evidence that she entered the drive shed during the surveillance in 2016.

[25] This is not, as the Crown argues, a case that is similar to this court’s decision in R. v. Pham, [2005] 77 O.R. (3d) 401, aff’d 2006 SCC 26, [2006] 1 SCR 940. In Pham, the appellant was convicted of possession of cocaine for the purpose of trafficking. The drugs were found in an apartment initially occupied by the appellant. However, at the time of the search and seizure, the apartment was also occupied by a male and the appellant was not present. The majority held that notwithstanding her absence from the apartment, it was open to the trial judge to find on the evidence that the appellant had constructive possession of the cocaine, either alone or jointly with the male who was present during the search. In particular, the majority noted that prior to the search warrant being executed, a witness observed that people would approach the apartment, slip money under the door, and a clear plastic bag containing white stuff would come out of the door. While the visitors to the door would not go inside, the witness testified that short exchanges would occur with someone behind the door. On occasion, the witness was able to identify the appellant as one of the people speaking, and on two occasions, they saw the appellant open the door.

[26] This case is different from Pham. As we read the record, Ms. Hamilton’s conviction rested solely on the basis that she was an occupant of the residence. We agree with Ms. Hamilton’s counsel that her occupancy and presumed access to tobacco containers and baggies inside the residence, which resembled the packaging of the drugs and currency in the drive shed, without more, did not sufficiently bridge the evidentiary gap to allow the inference of knowledge of the drugs and money. The trial judge did not grapple with the effect of Ms. Hamilton’s absence from the property and the absence of any surveillance of Ms. Hamilton’s connection to the drive shed.

[27] The trial judge’s reasons on this issue are very brief. He dismissed this issue in a single conclusory remark, finding that Ms. Hamilton was the “beneficiary of good fortune” without any analysis. Again, the bulk of the observations with respect to Ms. Hamilton in 2016 took place on two days and were limited to observing her doing mundane chores around the barn. She was not seen on the property during the limited surveillance in 2017. She was not present when the search warrant was executed. In contrast, Mr. Daponte was present when the search warrant was executed, was regularly seen on the property, tending to livestock or greeting visitors, and had entered the drive shed.

[28] In sum, Ms. Hamilton’s convictions are unreasonable and must be quashed.

Disposition

[29] For these reasons, Mr. Daponte’s appeal is dismissed. Ms. Hamilton’s appeal is allowed, her convictions quashed, and verdicts of acquittal substituted.

“Gary Trotter J.A.”

“Thorburn J.A.”

“S. Coroza J.A.”

[1] At the hearing, we dismissed Mr. Daponte’s appeal for reasons to follow without calling on the respondent. However, we did call on the respondent to respond to Ms. Hamilton’s argument that the verdict was unreasonable against her. After hearing from the respondent, we allowed Ms. Hamilton’s appeal and directed that acquittals be entered, also with reasons to follow.