ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 09-1035
Date: March 2, 2012

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – FADI DAYA Appellant

Jessica Legrand, for the Respondent
Israel Gencher, for the Appellant

Heard: February 29, 2012

REASONS FOR JUDGMENT

Madam Justice J.A. Blishen

Introduction

[ 1 ] Mr. Fadi Daya appeals his April 23, 2012 conviction by Mr. Justice Lajoie of the Ontario Court of Justice for possession of cocaine, contrary to s. 4 (1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 .

[ 2 ] The Appellant argues the trial judge misapprehended the totality of the evidence and rendered an unreasonable verdict.

Facts

[ 3 ] On the evening of February 14 th to 15 th , 2009, Constable Luchies of the Ottawa Police Service, while on duty on unrelated matters, observed a vehicle parked in a commercial parking lot with smoke emanating from the rolled down windows. Constable Luchies contacted two other officers, Constable Woods and Constable Botchar to assist. All three police officers

approached the vehicle. Constable Luchies spoke with the man in the front passenger seat, Mr. Fadi Daya, while Constable Botchar spoke with the driver, Mr. Ahmed Debouk. There was a third passenger in the backseat of the vehicle, Mr. Hassan Saleh.

[ 4 ] A “bong” (a device for smoking marijuana) was observed at the feet of Mr. Debouk who indicated to Constable Botchar that essentially the officers would find what they were looking for (drugs) in a cooler in the backseat.

[ 5 ] Constable Luchies advised Mr. Daya through the window that he was under arrest for possession of marijuana. As he was taking Mr. Daya out of the vehicle, Constable Luchies noticed a plastic bag located between the passenger’s seat and the centre console of the car “in plain view”. Constable Luchies testified:

It wasn’t wedged down, or anything like that. It was sitting – it was – it was propped up. It hadn’t been jammed down. So, when I was looking at it, I could see the bulk of the bag sticking up.

[ 6 ] While Mr. Daya was sitting in the passenger’s seat, his leg concealed the bag. Constable Luchies was not able to see it until he pulled Mr. Daya out of the vehicle. The bag contained cocaine.

[ 7 ] Constable Botchar approached the driver’s side of the vehicle and arrested Mr. Debouk. Constable Botchar asked Constable Luchies to retrieve the cooler and a Wine Rack plastic bag from the backseat. Constable Luchies handed Constable Botchar the cooler and bag and told him about the cocaine he had found. Constable Botchar had been focusing and directing his attention to Mr. Debouk. He had visually scanned the vehicle for officers’ safety and did not see the bag of cocaine. He testified that his focus was on securing Mr. Debouk safely before he did anything else.

[ 8 ] All three men were arrested, charged and the matter proceeded to trial on April 23, 2010. There was a directed verdict of acquittal with respect to the man in the backseat, Hassen Saleh. Mr. Debouk was found not guilty after trial and Mr. Daya was convicted of possession of cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act .

Reasons of the Trial Judge

[ 9 ] The trial judge found the driver, Mr. Debouk, a credible and reliable witness. Mr. Debouk testified that he no knowledge of the package of cocaine, until it was shaken in his face by Detective Luchies after he was arrested. The trial judge stated:

He was very clear on the tidiness of his car and he was positive that there was no such baggy containing cocaine prior to the arrival of Mr. Daya and Mr. Saleh.

Justice Lajoie found no indication that Mr. Debouk had knowledge, exercised any control or that he had constructive knowledge or constructive control of the cocaine. The trial judge further found no inference could be drawn that Mr. Debouk consented to the cocaine being the vehicle. Therefore he found Mr. Debouk not guilty.

[ 10 ] With respect to Mr. Daya, the trial judge found the baggy containing cocaine was in “plain view” and in close proximity to Mr. Daya. He stated as follows in his Reasons for Judgment:

There is no indication, whatsoever, that would convince anyone that Detective Luchies’ observation of the package being in plain view was not the case. It was not in plain view whilst Mr. Daya was seated in the passenger’s seat, the front passenger’s seat, but, clearly was when he exited the vehicle.

The fact that this package, which was later determined to contain cocaine, being in so close proximity to Mr. Daya, the only logical inference that can be made here is that Mr. Daya had knowledge, and had control over this package, which contained cocaine.

[ 11 ] He goes on later in his judgement to state:

certainly...certainly, knowledge and control are the only logical and rational inferences that can be made, I have no hesitation to find Mr. Daya guilty as charged.

[ 12 ] In considering other possible theories and inferences as submitted by defence counsel, the trial judge stated:

Certainly, anything is possible, but, when one is faced with the facts as they have been presented to the Court today, the different theories raised by Mr. Gencher are only pure conjecture, and no rational inference can be drawn from any of those preposterous scenarios.

Argument

[ 13 ] Defence counsel argued the trial judge erred in failing to set out why the “only logical inference” was that Mr. Daya had possession of the cocaine. He further argued that the evidence of Constable Botchar should have given rise to reasonable doubt as to whether or not the plastic baggy was in plain view and accordingly whether or not the Crown had proven that Mr. Daya had the requisite knowledge for proof of possession of cocaine beyond a reasonable doubt. Finally, it was argued the trial judge failed to apply any analysis to the contradictory and conflicting evidence of Constable Botchar and Constable Luchies. It was submitted that the trial judge misapprehended the totality of evidence, the verdict was unreasonable, the appeal should be granted and a verdict of acquittal entered.

Legislation

[ 14 ] Section 813 of the Criminal Code , R.S.C. 1985, c. C-46 ( “ Code ”) provides the authority for an appeal from a summary conviction as follows:

813 Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

i) from a conviction or order made against him.

[ 15 ] Pursuant to s. 822(1) of the Code :

822(1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.

[ 16 ] The combined effect of these two provisions is that s. 686(1) governs the powers of the appellate judge in a summary conviction appeal. Section 686(1) states:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii) the judgement of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii) on any ground there was a miscarriage of justice;

686(2) Where a court of appeal allows an appeal under paragraph 1(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

Law and Analysis

Misapprehension of the Evidence

[ 17 ] The Appellant submits the trial judge misapprehended the evidence in failing to consider the conflicting evidence of Constable Luchies and Constable Botchar with respect to whether or not the cocaine was in plain view. Mr. Justice Lajoie made a finding of fact that the cocaine was in plain in view. Although he did not specifically refer to Constable Botchar’s evidence and the fact that he did not see the cocaine from his location on the driver’s side of the vehicle, that does not mean that the baggy of cocaine was not in plain view. As noted above, Constable Botchar testified his attention was focused the driver. The implicit finding of the trial judge was that Constable Botchar’s evidence did not give rise to a reasonable doubt as to whether or not the cocaine was in plain view.

[ 18 ] I do not find a misapprehension of evidence by the trial judge in this regard.

[ 19 ] On appeal, a trial judge’s findings of fact are entitled to a high degree of deference. This standard of deference applies with equal force to inferences drawn from the evidence. Absent palpable and overriding error, appellate courts should not interfere with a trial judge’s fact finding process, including the finding of inferences drawn from the evidence.

[ 20 ] In Housen v. Nickolaisen, 2002 SCC 33, the Supreme Court of Canada in discussing the standard of review of a trial judge’s inferences of fact notes as follows:

...the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.

...It is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error.

[ 21 ] The Court goes on:

...If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with the factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.

[ 22 ] The trial judge found Mr. Debouk’s testimony that he had no knowledge of the cocaine in his car nor any control over it and that there was no baggy containing cocaine in his vehicle prior to the arrival of Mr. Daya and Mr. Saleh, credible and reliable. These findings of credibility should not be interfered with.

[ 23 ] The inference drawn by the trial judge that Mr. Daya had knowledge and control over the baggy of cocaine given he was sitting in the vehicle next to the baggy which was in plain view, was a logical inference reasonably drawn from the facts found by the trial judge. I do not find a palpable and overriding error in the findings of fact nor in the inference drawn by the trial judge that Mr. Daya had knowledge and control and was therefore in possession of the baggy of cocaine.

[ 24 ] In conclusion, I find the verdict was not unreasonable and was supported by the evidence. Therefore the appeal is dismissed.

Blishen J.

Released: March 2, 2012