



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Bryan, 2013
    ONCA 97

DATE: 20130215

DOCKET: C54255

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bryan

Appellant

Tina Yuen, for the appellant

Cindy-Lynn Afonso, for the respondent

Heard: February 11, 2013

On appeal from the convictions entered on May 9, 2011 by
    Justice J.D. Takach of the Ontario Court of Justice.

ENDORSEMENT

Introduction

[1]

Following a trial by judge alone, the appellant was convicted of
    possession of cocaine for the purpose of trafficking, possession of marihuana
    in an amount not exceeding 30 grams and possession of the proceeds of crime of
    a value not exceeding $5,000.  The trial judge sentenced the appellant to 13
    months imprisonment on each count, concurrent, and imposed various ancillary
    orders.

[2]

The appellant appeals from his convictions on the sole ground that the
    verdicts are unreasonable.  At the conclusion of oral argument on behalf of the
    appellant, this court dismissed the conviction appeal, with reasons to follow. 
    These are those reasons.

Discussion

[3]

The appellant argues that the verdicts are unreasonable because they were
    based, in effect, merely on his proximity to concealed drugs (cocaine and
    marihuana) and money discovered by the police in a rental car driven by the
    appellant.  We do not accept this submission.

[4]

We conclude that on the whole of the circumstantial evidence in this
    case, the verdicts are ones that a properly instructed jury, acting judicially,
    could reasonably have rendered.  In particular, on this record, a properly instructed
    jury could reasonably conclude that the appellants guilt was the only rational
    conclusion.  See
R. v. Biniaris
, 2000 SCC 15;
R. v. Beaudry
,
    2007 SCC 5;
R. v. R.P.
(2012), 282 C.C.C. (3d) 435 (S.C.C.).

[5]

The trial judges reasons indicate that he was alive to the required elements
    to establish possession: knowledge of and control over the contraband in
    question.  The only issue in this case was whether the appellant knew of the
    contraband that was present in the centre console and the door compartment on
    the passenger side of the rental car he was driving.  The trial judges reasons
    confirm that he appreciated that suspicion of guilt, by itself, was
    insufficient to establish the appellants knowledge of the drugs and money to
    the requisite criminal standard of proof.

[6]

The appellant did not testify at trial.  In aid of his defence, he
    called one witness  Mustafa Kulom  an admitted drug dealer, who essentially
    testified that the drugs and money seized by the police belonged to him and that
    he had temporarily loaned his rental car to the appellant  a man he barely
    knew  while, unbeknownst to the appellant, the drugs and money were in the vehicle.

[7]

For cogent reasons that he detailed, the trial judge rejected Mr.
    Kuloms explanation for the presence of the contraband in the rental car when
    the appellant drove it and his claim that the appellant had no connection to
    the contraband.  We see no error in the trial judges credibility-based
    assessment of Mr. Kuloms evidence.  It was for the trial judge to determine
    how much credit, if any, should be given to Mr. Kuloms version of events.

[8]

As the trial judge observed, on rejection of the critical features of
    Mr. Kuloms testimony, there was no evidence before the court as to why the
    accused was in a motor vehicle possessed with drugs and proceeds of crime.

[9]

Having rejected the salient aspects of Mr. Kuloms evidence and having
    concluded that it did not raise a reasonable doubt, the trial judge reviewed
    the evidence relied on by the Crown, concluding that it admit[ted] of nothing
    other than the culpability of the accused and that it was inconsistent with
    any other finding.  The issue, therefore, is whether the evidence that the
    trial judge did accept grounds his holding that knowledge by the appellant of
    the contraband was the only rational conclusion in all the circumstances.

[10]

In
    our view, the trial judges conclusion is firmly anchored in the evidentiary
    record.  The evidence at trial established a constellation of factors that,
    taken together, support the inference of knowledge by the appellant of the
    presence of drugs and cash in the car he was driving.

[11]

In
    addition to the factors detailed at paragraph 30 of his reasons, the trial
    judge observed that the quantity and value of the seized drugs made it
    inconceivable that the drugs would be casually entrusted, by an admitted drug
    dealer, to someone who did not know what was in the vehicle.  We agree.

[12]

Moreover,
    when the car was in fact stopped, the appellant was using his cell phone, which
    then rang continuously during the interval when he was detained by the police
    at the roadside (10 missed calls were recorded).  This is consistent with
    individuals seeking to engage in drug transactions.  In addition, two cell
    phone charger cords were clearly visible in the vehicle, and accessible to the
    appellant, on the centre console next to the drivers seat.  It was in this
    console that the police discovered 35 grams of cocaine (with a value of
    approximately $1,500 - $2,000), a baggie of marihuana, $775 in cash and two
    more cell phones.

[13]

Viewed
    cumulatively, we are persuaded that these factors were sufficient to support
    the inference of the appellants knowledge of the contraband drawn by the trial
    judge and his holding that the only rational conclusion was that the appellant,
    in some fashion, was a party to Kuloms activities.  At the end of the day,
    while the Crowns case against the appellant was not overwhelming, there was an
    evidentiary foundation to support the convictions. In these circumstances, it
    cannot be said that the verdicts are unreasonable.

Disposition

[14]

Accordingly,
    the conviction appeal is dismissed.  Counsel agree and jointly submit that the
    sentence imposed by the trial judge on the conviction for possession of
    marihuana (13 months imprisonment, concurrent to the sentences imposed on the
    other counts) should be varied to six months imprisonment, concurrent, to
    convert the sentence imposed on this count to a legal sentence.  We agree and
    so order.

E.A. Cronk J.A.

G.J. Epstein J.A.

P. Lauwers J.A.


