



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McFarlane, 2016 ONCA 158

DATE: 20160226

DOCKET: C59243

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karlie McFarlane

Appellant

Mark Halfyard, for the appellant

Lucas Price, for the respondent

Heard and released orally: February 23, 2016

On appeal from the conviction entered on July 31, 2014 by
    Justice J.R. Chaffe of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions following a trial in the Ontario
    Court of Justice for possession of cocaine for the purpose of trafficking,
    possession of ammunition without a license, and possession of proceeds of crime
    over $5000. He raises two grounds of appeal.

(1)

Unreasonable Verdict

[2]

The evidence against the appellant was entirely circumstantial. The
    appellant submits that the convictions were unreasonable and that the evidence
    led by the Crown was insufficient to establish his possession of the drugs and
    ammunition in a storage locker or the money found in one of the bedrooms of the
    condominium apartment he frequented.

[3]

We disagree. In our view, there was compelling evidence establishing
    that the appellant was the occupant of the bedroom in which a very substantial
    quantity of cash was hidden in several shoe boxes under the bed. The appellant
    was seen on a regular basis in and around the condominium building and his
    passport and other personal documents were found in the bedroom. The
    appellants drivers license was found in a jacket in the hall of the condominium.

[4]

The appellant was carrying a large folded bundle of Canadian currency on
    his person when he was arrested at the time of the execution of the search
    warrant.

[5]

There was a significant body of evidence from which it could be inferred
    that the appellant and his co-accused, the owner and other occupant of the
    apartment, were involved in trafficking drugs from the apartment. In addition
    to the large quantity of cash found on the appellant and in the bedroom he
    occupied, surveillance evidence revealed many meetings of short term duration
    involving either the appellant or the co-accused and other individuals that followed
    a pattern typical of drug transactions.

[6]

The key to the storage locker containing a significant quantity of
    cocaine and the ammunition was found on a ring with another key to another
    storage locker assigned to the apartment. The key ring was found in plain view
    on the kitchen counter of the apartment. Surveillance evidence indicated that
    the appellant had gone to the basement of the building in the direction of the
    storage locker in which the drugs and ammunition were found on three or four
    occasions. The trial judge was entitled to find that the presence of digital
    scales in the kitchen added something to the overall thrust of the evidence,
    namely, that the apartment occupied by the appellant was being used as a place
    from which drugs were being dealt.

[7]

Neither the appellant nor his co-accused testified.

[8]

In our view, it was open to a reasonable trier of fact, properly
    instructed and acting judicially, to convict on this evidence. When this
    evidence is considered as a whole, it was capable of supporting the trial
    judges finding that the crown had proved beyond a reasonable doubt that the only
    reasonable inference was that appellant had possession and control of the cash,
    drugs, and ammunition

(2)

R. v. Bui
error

The appellant also argues that the trial judge erred in
    his assessment of the circumstantial evidence by falling into the error
    identified by this court in
R. v. Bui
2014 ONCA 614. In that case, the trial judge stated in his reasons:

There are no proven facts upon which I can infer that some
    imagined person other than the accused, controlled the marijuana grow operation
    in the accuseds house without the accuseds knowledge.

[9]

As this court explained at para. 24, the error made by the trial judge
    in that case was in holding that, when assessing circumstantial evidence,
    conclusions alternative to the guilt of the accused must arise from proven
    facts.

[10]

The
    trial judge in this case did not make that error when he stated that the issue
    for him was whether the Crown has proven the accuseds guilt is the only reasonable
    inference to be drawn from proven facts. He went on to find that the evidence
    as a whole proves possession of the illicit contents of the locker 229 by the
    two accused is the only reasonable inference from these proven facts. These
    statements refer to the burden on the Crown and whether, when the evidence was
    considered as a whole, the Crown had met that burden. At no point did the trial
    judge make the error identified in
R. v. Bui
, namely, that the accused
    could only rely on inferences arising from proven facts in order to avoid
    conviction.

[11]

For
    these reasons, the appeal is dismissed.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


