



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohamud, 2021 ONCA 820


DATE: 20211118

DOCKET: C68812

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullqadir Mohamud

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

James D. Sutton, for the respondent

Heard: November 12, 2021

On appeal from the conviction entered by
    Justice J. Bourgeois of the Ontario Court of Justice on December 13, 2019.

REASONS FOR DECISION


[1]

The appellant was convicted after a trial by a
    judge alone of possession of crack cocaine for the purposes of trafficking. He
    appealed, claiming the verdict was unreasonable. At the end of oral argument,
    the court dismissed the appeal with reasons to follow. These are the reasons.

[2]

An undercover officer arranged to purchase
    cocaine from a dealer named Capone. The undercover officer received a call
    telling him the drugs were two minutes away. A black Volkswagen pulled up and
    parked right in front of the undercover officers car.

[3]

The driver of the Volkswagen motioned the
    undercover officer over to the vehicle. The undercover officer spoke with the
    driver and satisfied himself that the driver was there to deliver the cocaine
    the undercover officer had arranged to purchase from Capone. The officer told
    the driver he had to return to his car to get his money. Other officers moved
    in quickly and arrested the occupants of the Volkswagen.

[4]

There were three people in the car. The
    appellant was seated in the front passengers seat.

[5]

Various forms of contraband were found in
    different places in the car. A ripped plastic baggy containing 5.5 grams of
    crack cocaine was found on the front passenger seat where the appellant had
    been sitting.

[6]

The appellant did not testify and did not call a
    defence.

[7]

The trial judge acquitted the appellant on
    charges relating to the rest of the contraband found in the car, but convicted
    him of possession for the purpose of trafficking in respect of the crack
    cocaine found on the front passenger seat where the appellant had been sitting.

[8]

The trial judge found, as a fact, that the
    appellant was either sitting on the baggy containing the crack cocaine, or had
    it between his legs when the police commenced the takedown at the vehicle.
    The trial judge rejected the submission that the baggy was placed on the seat
    during the fracas caused by the takedown. The trial judge also rejected the
    submission that the baggy was wedged between the front seat and the passenger
    side door of the vehicle.

[9]

On appeal, the appellant submitted the
    conviction was unreasonable. Counsel argued the trial judge failed to consider that
    the appellant may have unwittingly sat on the baggy containing the cocaine and
    had no knowledge of the baggy or its contents. Counsel submitted that the
    suggestion the appellant could have unwittingly sat on the baggy was a
    reasonable one in the circumstances and could not be dismissed as speculation. It
    followed, argued counsel, that the Crown did not meet its burden of proving
    that the only reasonable inference from the evidence was that the appellant
    knew the baggy was on the seat and knew there was cocaine in the baggy.

[10]

There is some attraction in the appellants
    argument. People unknowingly sit on objects on car seats from time-to-time.
    There was also no evidence other than the appellants presence in the vehicle
    when the drug transaction was to occur connecting the appellant to the drug sale
    arranged by the undercover officer with Capone.

[11]

In response, the Crown emphasized two features
    of this case. First, the appellant did not testify and offer any explanation
    for how he came either to be sitting on the baggy or sitting with the baggy
    between his legs. As the Crown correctly observed, this court is entitled to
    consider the failure to testify in assessing the reasonableness of a verdict:
R.
    v. Pannu
, 2015 ONCA 677, at para. 175.

[12]

Second, the Crown submitted that counsel for the
    appellant at trial did not suggest, among the various possibilities suggested
    by counsel, that the appellant my have been unknowingly sitting on the baggy
    containing the crack cocaine. Crown counsel argued that the failure of trial counsel
    to suggest his client may have been unknowingly sitting on the baggy speaks
    volumes about the reasonableness of the inference advanced for the first time on
    appeal. Crown counsel stressed that the bag contained hard, marble-like pieces
    of crack cocaine. He argued it would not be reasonable to infer that someone
    could be sitting on those objects without realizing it.

[13]

In
R. v. Villaroman
, 2016 SCC 33, at
    para. 71, Cromwell J. said this about unreasonable verdict arguments in the
    context of circumstantial evidence cases:

It is fundamentally for the trier of fact to
    draw the line in each case that separates reasonable doubt from speculation.
    The trier of facts assessment can be set aside only where it is unreasonable.
    While the Crowns case was not overwhelming, my view is that it was reasonable
    for the judge to conclude that the evidence as a whole excluded all reasonable
    alternatives to guilt.

[14]

It is difficult for this court to reverse a
    conviction on the basis that the trial judge failed to consider a reasonable
    inference inconsistent with guilt when competent and diligent trial counsel for
    the appellant never suggested that inference was one which could reasonably
    arise on the evidence. The failure of counsel, who was obviously very familiar
    with the evidence, to suggest that it was reasonable to think the appellant may
    have been unknowingly sitting on the crack cocaine speaks to the implausibility
    of that explanation.

[15]

As in
Villaroman
, this was not an
    overwhelming circumstantial case. We are satisfied, however, it was open to the
    trial judge to conclude beyond a reasonable doubt that the appellant had
    physical possession of the baggy containing the crack cocaine when the takedown
    occurred and knew what was in the baggy. The contents were plainly visible.

[16]

The appeal is dismissed.

Doherty J.A.

G. Pardu J.A.

J.A. Thorburn J.A.


