



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. McLean, 2017 ONCA 657

DATE: 20170817

DOCKET: C60929

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ginell McLean

Appellant

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Heard and released orally:  August 15, 2017

On appeal from the conviction entered by Justice M.F.
    Brown of the Superior Court of Justice on January 27, 2015.

REASONS FOR DECISION

[1]

This was a simple single-issue case  did the
    Crown prove beyond a reasonable doubt that the appellant was in possession of
    the firearm and ammunition found in the computer bag she removed from her
    apartment, took and left in the apartment of her cousin?


[2]

There was overwhelming evidence that the appellant had
    possession of the computer bag in which the gun and ammunition were found
    during the police search.  She took the bag from her apartment to her cousins
    apartment in the same building and left the bag in the bedroom where the police
    discovered it a short time later.

[3]

The crucial question was whether the appellant knew the
    gun and ammunition were in the bag.  Her boyfriend, who was at her apartment
    earlier that morning, was a gang member and presumably the suggestion is that,
    unbeknownst to the appellant, he put the gun and ammunition into the bag.

[4]

In our view, if the Crown proved that the appellant
    knew the gun and ammunition was in the bag, her physical possession of the bag
    and her control over it provided ample evidence of sufficient control over the
    contents of the bag to establish the control required for possession. 
    Knowledge was the crucial issue.  The Crown relied on circumstantial evidence
    to prove knowledge or its legal equivalent, wilful blindness.  The appellant
    did not testify.

The trial judge thoroughly and
    accurately reviewed the evidence and we will not repeat that exercise.

[5]

The appellant submits that the verdict is unreasonable. 
    She argues that the trial judge did not consider the availability of an
    alternative inference, that is, that the bag contained some other kind of
    contraband, e.g. drugs.

[6]

We disagree with this submission.  The trial judge
    specifically considered and rejected the submission, describing it as based on
    speculation.  We agree with this characterization.  There was simply no
    evidence of what, if anything, was said by the boyfriend to the appellant about
    the contents of bag.  The trial judge had to draw inferences from the evidence,
    not from what the evidence might have been.

[7]

To succeed on the argument that the verdict was
    unreasonable, the appellant must convince us that no trial judge, acting
    reasonably and on a proper understanding of the law relating to circumstantial
    evidence, could have been satisfied beyond a reasonable doubt that the
    appellant knew the gun and ammunition were in the bag.  It is not this courts
    function to make its own assessment of the reasonable inferences that could be
    drawn.  Rather, the courts limited power to reweigh evidence goes only so far
    as to determine whether the trial judges inference of knowledge from the
    totality of the evidence falls within the range of reasonableness, having
    regard of course to the burden of proof.

[8]

There was ample evidence from which the trial judge
    could reasonably come to the conclusion that he did, that is, that the Crown
    had proved knowledge or its equivalent, wilful blindness, beyond a reasonable
    doubt.

[9]

The appeal is dismissed.

Doherty J.A.

H.S. LaForme J.A.

Paul Rouleau J.A.


