ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(F) 338/13

DATE: 20140528

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gregory Maassen

Appellant/ Defendant

S. Virk, for the Crown

D. Harris, for the Defendant/Appellant

HEARD: May 23, 2014

Judgment

On appeal from the judgment of the Honourable

Justice M. F. Khoorshed, dated March 12, 2013

Ricchetti, J.:

THE CHARGES

[1] Mr. Maassen was charged with, on May 21, 2012, possessing cocaine contrary to s.4(1) of the Controlled Drugs and Substances Act.

[2] A trial took place on March 12, 2013 before the Honourable Justice Khoorshed.

[3] The trial judge convicted Mr. Maassen.

The Facts

[4] On May 21, 2012 the police were called to the Appellant's home by his brother.

[5] The Appellant had been drinking and had cut his wrist with a knife. He locked himself in his bedroom. No one shares that bedroom with the Appellant. The Appellant's mother and brother also lived at the same home but have their own separate bedrooms. The Appellant’s brother called the police.

[6] The Appellant's mother arrived home and spoke to the Appellant. The Appellant left his bedroom with his mother.

[7] The police arrived. The Appellant was arrested.

[8] The police looked for the knife the Appellant had used in the kitchen but could not find it. The Appellant's mother took the police to the Appellant's bedroom. On top of the bed's railing, entirely visible and in plain view, was a thin plastic bag with a lumpy substance in it. The police officer recognized this as a common way in which drugs are kept and the police officer formed the belief that there were drugs in the plastic bag.

[9] The police officer investigated further, looked in the bag and cocaine was found.

[10] The Appellant's mother testified the cocaine was not hers.

[11] The Appellant was arrested on the possession charge.

The Issues

[12] The Appellant raises two issues on appeal:

i. the trial judge erred in law in failing to recognize that other persons might have access to the bedroom resulting in a reasonable doubt as to the Appellant's possession of the controlled substance; and

ii. the trial judge erred in law in failing to identify a Charter issue and hold an inquiry - namely that the police officer did not have any reasonable grounds to search the plastic bag for drugs.

[13] The Appellant does not suggest that the verdict was unreasonable.

The Reasons

[14] Three police officers including the police officer who went to the Appellant's room and found the plastic bag testified at trial. The Appellant's mother also testified at trial.

[15] The trial judge was alive to the issue that the Crown had to establish beyond a reasonable doubt that the Appellant had knowledge and some measure of control over the drugs.

[16] The trial judge stated at page 56:

Now, that cocaine was in a package in a room exclusively used by the accused found on his bed. This is more than sufficient evidence that the accused had knowledge and control of it. The fact that somebody else may have access to the room does not make any difference whatsoever. Under these circumstances the evidence is more than sufficient I find the accused guilty as charged.

THE LAW

[17] The trial judge’s findings of fact are to be accorded significant deference and cannot be set aside unless there is a palpable and overriding error. R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3 at 16.

[18] Where a misapprehension of the evidence is alleged, those portions of the evidence must be a “material” part of the evidence and “play an essential part of the reasoning process resulting in a conviction”. See: R. v. Morrissey, (1995) 1991 7241 (ON CA), 2 O.R. (3d) 514 (C.A.) at page 93.

[19] The judgment will only be unreasonable if it is one that could not have reasonably been rendered in accordance with the applicable law. See: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para 36.

Analysis

Possession

[20] Possession in this case requires knowledge of the drugs and some measure of control over the drugs.

[21] The Appellant takes issue with the trial judge's statement that: "the fact somebody else may have access to the room does not make any difference whatsoever". The Appellant submits this is an erroneous principle of law as it relates to constructive possession.

[22] I agree that evidence regarding third party access to the location is a factor for a trial judge to consider in determining whether the Crown has established possession by a particular individual of something found at that location. However, the importance or relevance of access or possible access by third parties to the location is highly dependent on the circumstances and evidence.

[23] The trial judge’s reasons must be read as a whole. In this case, the trial judge concluded it made no difference that someone else may have had access to the Appellant's bedroom. There was considerable evidence to support this conclusion:

i. this was the Appellant's bedroom;

ii. the Appellant did not share his bedroom with anyone else;

iii. the Appellant had locked himself in his bedroom prior to police arriving;

iv. the plastic bag was tied to his bed’s railing and was immediately observable by anyone entering his bedroom;

v. the only evidence is that the Appellant's mother went to his bedroom to speak with the Appellant after arriving home. The Mother denied it was her cocaine;

vi. there was no evidence anyone went into his bedroom after the Appellant came out of his bedroom with his mother; and

vii. while the evidence was that there was no rule prohibiting other members of the family from going into another bedroom, there is no evidence anyone did go into his bedroom at any time.

[24] The Appellant submits that the trial judge was obligated to consider whether another person could have been responsible for the drugs. The trial judge had evidence the drugs were not that of the Appellant's mother. That leaves the Appellant's brother as the only other resident of the home. I am not persuaded that the trial judge should have embarked mere speculation that the Appellant's brother or someone else may have put the drugs on the Appellant’s bed. It would be pure speculation in the same manner as it would be speculation that a repairman or gardener or a visitor to the home might have put the drugs there.

[25] In this case, the only reasonable inference that could be drawn in circumstances where the drugs in the plastic bag were:

i. clearly visible on the bed railing to all who entered the bedroom;

ii. in a bedroom where the Appellant is the only user of the bedroom; and

iii. the Appellant had recently been in his bedroom moments before the plastic bag with the drugs was discovered by the police,

that the Appellant had knowledge and a degree of control over the drugs in the plastic bag. I agree with the trial judge that, in the circumstances of this case, the mere possibility that someone else might have had access to the Appellant’s bedroom, is not relevant.

[26] The Appellant also takes issue that there is no evidence that the room was "exclusively" used by the Appellant. In fact, there was evidence that this was the Appellant's bedroom and he did not share his bedroom with anyone else. In my view, this makes the bedroom – exclusively the Appellant’s bedroom.

[27] The evidence in this case is very different than R. v. Grey 1996 35 (ON CA), [1996] O. J. No. 1106(C.A.) where Mr. Grey spent several nights a week at his girlfriend's apartment where the drugs were hidden. There was a serious issue whether Mr. Grey, an occasional visitor to that room, had knowledge of the hidden drugs. In this case, it was the Appellant’s bedroom and the plastic bag with the drugs was clearly visible on to railing to his bed. It would be impossible for the sole occupant of that bedroom to have missed or not known that the drugs were there when the Appellant had been in the bedroom just a short while earlier.

[28] When considered in the circumstances of the evidence in this case, the trial judge did not make an error of law.

Charter Issue

[29] Appellate courts are reluctant to permit Charter issues to be raised for the first time on appeal. As set out in R. v. Kuruvilla [2012] ONSC 5331 at paras. 12 - 18, there are three pre-conditions to the court permitting a new issue to be raised on appeal: the court must have a sufficient evidentiary record to resolve the issue, the failure to raise the issue at trial must not have been due to a tactical reason and no miscarriage of justice will arise if the court declines to permit the new issue to be raised on appeal.

[30] I have reviewed the transcript and it is clear that the Defence counsel at trial touched on whether the police officer had probable grounds to look in the plastic bag. However, Defence counsel chose not to go any further along that line of cross-examination.

[31] I agree with the Crown's submission. For the Defence to have advanced a breach of a Charter right, the Appellant would have had to claim a privacy interest in the bedroom and in the plastic bag. If the plastic bag did not belong to the Appellant, he would have no privacy interest or standing to bring the Charter application as a result of the police search of the contents. For the Appellant to advance the privacy interest in the plastic bag, it would have required some evidence and that evidence might be inconsistent with the main thrust of the defence advanced at trial - lack of knowledge and control over the drugs.

[32] I am not persuaded that this was not a tactical decision by experience criminal defence counsel who represented the Appellant at trial. There is certainly no evidence to suggest it was not a tactical decision. There is no evidence why the issue was not raised at trial.

[33] Had the issue been raised by the Defence at trial, it is entirely unclear whether and what additional evidence would have come forth from the police. Given the unchallenged evidence of the police officer, I would not and cannot conclude that it was plainly obvious that there was a Charter breach.

[34] As a result, it is difficult for this ground of appeal to succeed absent evidence this was a plainly obvious Charter breach, inadequate or lack of representation at trial or other circumstance which would suggest a miscarriage of justice might occur if the Charter issue was not permitted to be dealt with on its merits. None apply in this case.

[35] In these circumstances, I am not persuaded that the Appellant has satisfied any of the preconditions identified in Kuruvilla, supra. This ground of appeal fails.

CONCLUSION

[36] The appeal is dismissed.

Ricchetti, J.

Released: May 28, 2014

COURT FILE NO.: SCA(F) 338/13

DATE: 20140528

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Gregory Maassen

JUDGMENT

[On appeal from the judgment of the Honourable

Justice M.F. Khoorshed, dated March 12, 2013]

Ricchetti J.

Released: May 28, 2014