



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wong, 2012 ONCA 432

DATE: 20120622

DOCKET: C53130

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Sai Wong

Appellant

Edward F. Hung, for the appellant

Alexander Hrybinsky, for the respondent

Heard: May 1, 2012

On appeal from the conviction entered on December 6, 2010
    and the sentence imposed on December 22, 2010 by Justice Joseph F. Kenkel of
    the Ontario Court of Justice, sitting without a jury.

Weiler J.A.:

NATURE OF APPEAL

[1]

The appellant was convicted
[1]
of the following offences:

(1)     Trafficking in a substance
    contrary to s. 5(3) of the
Controlled Drugs and Substances Act
(
CDSA
)


(2)     Possession of a substance contrary
    to s. 4(1) of the
CDSA

(3)     Possession for the purpose of
    trafficking (3 counts) contrary to s. 5(3) of the
CDSA

(4)     Careless storage of a firearm
    contrary to s. 86(3) of the
Criminal Code

(5)     Possession of a firearm without a
    licence contrary to s. 91(3) of the
Criminal Code

(6)     Possession of a firearm knowing
    its possession is unauthorized contrary to s. 92(3) of the
Criminal Code

(7)     Possession of a loaded firearm
    contrary to s. 95(1) of the
Criminal Code

[2]

I propose to deal first with the issues relating to the convictions for offences
    (3)  (6).  The primary issue in relation to these convictions is the validity
    of the search warrant and the manner in which the trial judge dealt with the
    evidence obtained from its execution at trial. In my opinion these issues have
    no merit and I deal with them summarily.

[3]

Secondly, I will address the issue relating to offence (7). The
    appellant argues that possession of an unloaded prohibited firearm or
    restricted firearm together with readily accessible ammunition that is capable
    of being discharged in the firearm (the offence made out on the facts) is not included
    in the offence of possession of a loaded prohibited firearm or restricted
    firearm (the offence charged). Both offences are found in s. 95(1) of the
Code
.
    I agree with the appellant and I would allow the appeal in relation to this conviction
    on that basis, set aside the conviction and order that an acquittal be entered.

[4]

Finally, I will deal with whether the convictions for the first two
    offences - trafficking in ketamine on June 24, 2009 and being in possession of
    ketamine for the purpose of trafficking on June 25, 2009 - were unreasonable. Having
    regard to the whole of the evidence, I conclude that there was ample evidence
    to support the trial judges findings of guilt.

[5]

The appellant has also appealed his global sentence of three years
    imprisonment. However, because a person who commits an offence in s. 95(1) is
    subject to a minimum term of imprisonment of three years, the sentence appeal was
    adjourned to await this courts decision as to whether the finding of guilt
    pursuant to s. 95(1) would be maintained.

FACTS

[6]

In April 2009, York Regional Police received information from an
    anonymous source that the appellant resided at 3 Westchester Crescent in
    Markham and stored drugs that he was dealing, at that location.  The source
    also indicated that the appellant sold drugs around the Pacific Mall and that
    he used three mobile phones.

[7]

Det. Ibbott conducted a background check of the appellant. The police
    information system showed that the appellant had outstanding charges of possession
    of burglary tools and possession of ecstasy for the purpose of trafficking. This
    information was included in Det. Ibbotts affidavit of June 25, 2009,
    supporting the application for a search warrant. In reality, the appellant had
    no outstanding charges.  Unbeknownst to the Det., the charges had been
    withdrawn by the Crown on June 5, 2009.

[8]

Acting on the information obtained, Det. Ibbott and fellow officers
    commenced surveillance of 3 Westchester Crescent. They made observations of the
    appellant on three separate occasions.

[9]

On May 15, 2009, Cst. Salhia observed the appellant driving a vehicle on
    Westchester Crescent towards a shopping plaza. The appellant parked near a
    convenience store and an unknown male entered the vehicle and, within five
    minutes, got out.

[10]

The
    appellants vehicle left the parking lot and police followed it to another
    shopping plaza. There, the appellant entered a cinema. He met with two unknown
    males and entered the washroom. Approximately six minutes later, the parties left
    the washroom. The appellant returned to his vehicle.

[11]

The
    police then followed the appellants vehicle to a Shoppers Drug Mart. The
    appellant met with an unknown male for 10 minutes inside the store. The pair walked
    out of the store and got into the appellants vehicle where they remained for
    12 minutes before the unknown male left and went back into the store. The
    appellant left in his vehicle.

[12]

The
    police continued following the appellants vehicle to a residence in Toronto. There,
    an unknown female entered his vehicle. Three minutes later she went back into
    the residence and the appellant drove away.

[13]

On
    May 28, 2009, the police surveillance team observed the appellant and an
    unknown male leave his residence and enter a vehicle. They left the residence
    and quickly returned to be joined by two other unknown males. The police followed
    the vehicle to a nearby residential area where an unknown female entered the
    vehicle for five minutes and then left. No further observations were made that
    day.

[14]

Finally,
    on June 24, 2009, police observed a vehicle arriving at the appellants
    residence. The driver went to the door of the residence and then returned to
    the vehicle with the appellant. The police followed the vehicle to a shopping
    plaza. Moments later a Mercedes parked beside it. The appellant got in the back
    seat of the Mercedes where he remained for approximately 5 minutes before
    returning to the vehicle he came in and driving away.

[15]

Police
    believed that the appellant had sold drugs to the persons in the Mercedes and
    decided to continue to observe that vehicle. They saw two males making snorting
    actions consistent with drug use and arrested both of them for possession of
    ketamine shortly thereafter.

[16]

On
    completion of the surveillance, Det. Ibbott formed the belief that the
    appellant was a drug trafficker. He based his belief on his experience (22
    years as a police officer,10 of which were with the Drugs and Vice Unit),
    observations made of the appellant on the three days of surveillance, the supporting
    information from the anonymous informant, and the actions of the people in the
    Mercedes on June 24, 2009. He also believed that the appellant kept the drugs
    at his residence as, in his experience, drug traffickers keep their stash close
    by and a residence is considered a safe location to keep drugs in bulk.

[17]

On
    June 25, 2009, Det. Ibbott ordered the appellants arrest for trafficking in
    relation to the observations of June 24 involving the Mercedes. Later that
    evening, he also applied for a warrant under the
Controlled Drugs and
    Substances Act
(
CDSA)
S.C.1996, c.19, to search 3 Westchester
    Crescent.

[18]

The
CDSA
warrant listed two offences for which evidence was sought: trafficking
    on June 24, 2009; and possession for the purpose of trafficking on June 25,
    2009. According to Det. Ibbott, the basis for charging the appellant with the
    possession for the purpose of trafficking offence on June 25, 2009 was not the
    appellants activities on June 25, 2009, but rather the result of the
    surveillance prior to that date.

[19]

The
CDSA
warrant was executed on June 26, 2009 by Cst. Salhia and three
    other officers. The search produced 35.8 grams of ketamine, 4 grams of cocaine,
    $1,850 in Canadian currency, $57 in U.S. currency, scales, and packaging
    material. A sawed-off .22 calibre rifle and ammunition were also found inside a
    tennis racquet case in a bedroom believed to be the appellants.

[20]

Det.
    Ibbott testified at trial that the ammunition was in the tennis racquet case
    and not loaded in the rifle. Although Det. Ibbott had been informed by Cst.
    Salhia that the rifle was not loaded, he nevertheless laid a further information
    charging the appellant with possession of a loaded firearm.

The Trial Judges DECISION

[21]

The
    Crown elected to proceed by indictment on all charges. The appellant consented
    to the firearm and drug charges being tried together. At the outset of the
    trial, both parties asked the court to determine whether the Crown had proved
    possession of the seized items beyond a reasonable doubt before dealing with
    the other issues.

[22]

On
    October 4, 2010, the trial judge found that the surveillance evidence, along
    with documents and clothing located inside the residence, proved that the
    appellant lived there. The trial judge observed that the appellant and his
    brother each occupied one of the two bedrooms in the basement level of the
    home.  The appellants brother told the police whose bedroom was whose but did
    the Crown did not call him to give this evidence at trial. The trial judge
    found the brothers statements to the police were hearsay and not admissible as
    evidence. However, considering all of the remaining circumstantial evidence,
    the trial judge held that there was only one reasonable inference: the
    appellant occupied the bedroom searched.

[23]

The
    trial judge relied on the following evidence to link the appellant to the
    bedroom where the contraband items were located: cellular telephone bills in
    the appellants name, the appellants student identification, and the style of
    clothing found which was consistent with the appellants manner of dress but
    not his brothers. Photos indicated that the other bedroom contained items
    belonging to the appellants brother. On the totality of the evidence, the
    trial judge held that the Crown had proven beyond a reasonable doubt that the
    appellant resided at the address in question and was in possession of the items
    seized from the bedroom.

[24]

On
    December 6, 2010, the trial judge delivered his ruling on the appellants
    application under ss. 8 and 24 of the
Charter
to include the evidence
    obtained from the search.  The reasonableness of the search turned on the
    information to obtain which formed the basis for the issuance of the search
    warrant.  The trial judge concluded that there was sufficient evidence to
    support the assertion in the information to obtain that the appellant was
    trafficking in ketamine and that he resided at the address in question.

[25]

The
    trial judge based his conclusion as to the reasonableness of the search on the content
    of the information to obtain after he had excised the information relating to
    the informant and the erroneous information concerning the appellants outstanding
    charges. The trial judge found that there was also sufficient evidence to show
    that the drugs would likely be found at the appellants home. He held that
    there was no breach of s. 8 of the
Charter.
And, applying the analysis
    in
R. v. Grant,
[2009] 2 S.C.R. 353, 2009 SCC 32, he further held that
    even if there were a breach of s. 8, the evidence was admissible under s.
    24(2).

[26]

The
    trial judge then dealt with the charge of possession of a loaded prohibited
    firearm. He found that the evidence at trial showed that the prohibited firearm
    was unloaded with ammunition in the same case. He held that s. 95 of the
Criminal
    Code
created two modes of committing the same offence. Further, the second
    mode of committing the offence in s. 95 was included in the first because
    anyone possessing a loaded prohibited firearm would also at that same moment
    be in possession of a prohibited firearm with readily accessible ammunition
    capable of being fired in the weapon.

[27]

Lastly,
    the trial judge dealt with the issue of whether the ammunition was capable of
    being discharged in the firearm. He found that, although the ammunition seized
    was inadvertently destroyed prior to testing, the Crown had established beyond
    a reasonable doubt that the ammunition was functional and capable of being
    fired from the weapon. In so doing, he relied on the evidence of Cst. Brouwer,
    a firearms and ballistics expert, who based his opinion on his examination of
    the firearm and photographs of the ammunition.

[28]

Considering
    all of the evidence, the trial judge held that the Crown had proven the alleged
    offences beyond a reasonable doubt and found the appellant guilty on all counts.

ISSUES

(1)

Did the trial judge err in ruling that the search warrant was legally
    obtained and that the search was therefore reasonable?

[29]

The
    appellant submits that the search warrant was not legally obtained because the
    information in the information to obtain was insufficient for the following
    reasons:

·

The lack of proven reliability of the informant (conceded by the
    Crown);

·

Det. Ibbotts mistaken belief expressed in the information to
    obtain that there were outstanding charges;

·

Inconsistent information as to the area code of the appellants
    cell phone; and

·

The inclusion of the baseless offence of possession for the
    purpose of trafficking on June 25, 2009.

Further, the appellant argues that Det. Ibbott lacked
    credibility and this should have been reflected in the trial judges assessment
    of the detectives reasonable belief that drugs would be found at the
    appellants home.

[30]

In
    considering the sufficiency of the information to obtain, the trial judge excluded
    the items listed above from his consideration.  The trial judge was entitled to
    otherwise accept the evidence of Det. Ibbott. He was in the best position to determine
    the officers credibility and I have no basis on which to interfere with his
    assessment. On the totality of the evidence, there were reasonable grounds to
    believe that the appellant resided at the address in question and kept drugs
    there.

[31]

The
    trial judge only had to be satisfied that there was an evidentiary basis on
    which the warrant could have been issued: see
R. v. Garofoli
, [1990] 2
    S.C.R. 1421. On reviewing the search warrant, the trial judge assessed the
    evidence in its entirety severing off anything that was inaccurate or
    unreliable.  He did not err in his conclusion that the warrant was legal and
    that there was no violation of the appellants right to be free from unreasonable
    search and seizure pursuant to s. 8 of the
Charter.

[32]

In
    the circumstances it is not necessary to consider the trial judges ruling on
    s. 24(2) of the
Charter
.

(2)

Did the trial judge err in ruling that the appellant occupied the
    bedroom where the firearm and drugs were found and that he was therefore in
    possession of them?

[33]

The
    appellant relied on his factum for this ground of appeal. In it he argues that
    inasmuch as the police officers failed to list the items identifying which room
    belonged to the appellant in their notes and the Crown failed to call the
    appellants brother or any other family members to establish that the room where
    the contraband items were found was the appellants, there is no evidence that
    the room was his.  The appellant further submits that the trial judge erred in not
    accepting the evidence of Det. Thompson that only the appellants room was
    searched.

[34]

The
    issue of note-taking by police was considered and rejected by the trial judge.
    While the police officers did not list the items identifying which room
    belonged to the appellant in their notes, they did take photographs of the
    rooms. The photographs showed items that indicated whose bedroom was whose, thus
    confirming the officers evidence.

[35]

Further,
    there was no basis for drawing an adverse inference based on the Crowns
    failure to call the appellants family members as witnesses. The decision to
    call witnesses is a matter of Crown discretion: see
R. v. Cook
, [1997]
    1 S.C.R. 1113. And, as I have noted above, the testimony of family members as
    to whose room was whose was not required.

[36]

Insofar
    as the trial judge omitted to refer to the evidence of Det. Thompson, a trial
    judge is not required to refer to every piece of evidence in giving his reasons:
    see
R. v. R.E.M.
, [2008] 3 S.C.R. 3, 2008 SCC 51, at paras. 19-20. Moreover,
    Det. Thompsons evidence was contradicted by the objective evidence of the
    photographs.

[37]

There
    was ample evidence to support the trial judges conclusion that the appellant
    occupied the bedroom where the firearm and drugs were found and that he was in
    possession of them.

(3)

Did the trial judge err in finding that the destroyed ammunition was
    capable of being discharged by the firearm seized?

[38]

The
    appellant submits that Cst. Brouwers evidence raised a reasonable doubt as to
    whether the ammunition could be discharged by the seized firearm. He could not,
    with any certainty, have ascertained the discharge capability of the ammunition
    from the photographs. Test firing of the actual ammunition was required. The
    trial judge erred in finding that the destroyed ammunition was capable of being
    discharged by the seized firearm.

[39]

The
    appellants argument is a complaint about the factual findings of the trial
    judge and amounts to a claim of unreasonable verdict on this conviction. The
    trial judge was aware of, and noted, the destruction of the ammunition and
    magazine. After referring to Cst. Brouwers evidence that the cartridges were
    consistent with the type of ammunition for the firearm, he took into
    consideration Cst. Brouwers inability to rule out the possibility that the
    cartridges were not capable of being discharged from the firearm. However, he
    adopted Cst. Brouwers opinion and expressly stated six reasons for finding
    that the ammunition was capable of being discharged:

(a)     Dummy cartridges typically have a
    hole drilled in them or are marked in some way. These had no such marking.

(b)     The officer had never seen a dummy
    cartridge for this type of rifle in 43 years of experience.

(c)     The cartridges appeared to be
    factory made, which is inconsistent with a special dummy cartridge for gunsmith
    work.

(d)     There is no apparent reason for
    having more than one dummy cartridge.

(e)     There is no evidence the appellant
    was a gunsmith or weapons trainer who would have legitimate need of a dummy
    cartridge. The presence of a sawed off rifle makes it certain he was not a
    gunsmith or weapons trainer.

(f)      The location of the ammunition,
    in a tennis bag with the sawed off rifle, in a room where drugs were found
    makes it plain the weapon was kept as a tool of the drug trade.

[40]

The
    trial judges finding was not unreasonable; it was well supported by the
    evidence.

(4)

Did the trial judge err in law in ruling that possession of an unloaded
    firearm with accessible ammunition capable of being discharged by the firearm
    is included in the offence of possession of a loaded firearm? Did he err in
    convicting the appellant of possession of a loaded firearm?

[41]

The
    trial judge found that a person who possesses a loaded firearm necessarily
    possesses an unloaded firearm with usable ammunition at hand. Possessing an
    unloaded firearm together with usable ammunition, as the appellant did, was
    therefore included in the offence of possessing a loaded firearm.

[42]

In
    this case, the information particularized the offence as possession of a
    loaded prohibited firearm, namely a rifle, contrary to section 95, subsection
    (2) of the Criminal Code. As I have indicated, the evidence showed that the
    firearm was not in fact loaded but that the ammunition was found alongside it
    in the same tennis racquet case. At trial, the Crown chose not to seek an
    amendment of the information to conform to the evidence.

[43]

For
    ease of reference I have reproduced the relevant portions of sections 95(1) and
    (2) of the
Criminal Code
below:

(1) [E]very person
    commits an offence who, in any place, possesses a loaded prohibited firearm or
    restricted firearm, or an unloaded prohibited firearm or restricted firearm
    together with readily accessible ammunition that is capable of being discharged
    in the firearm, unless the person is the holder of

(a) an authorization
    or a licence under which the person may possess the firearm in that place; and

(b) the registration certificate
    for the firearm

(2) Every person who
    commits an offence under subsection (1)

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding 10 years
    and to a minimum punishment of imprisonment for a term of

(i) in the
    case of a first offence three years.

[44]

Knowledge
    of whether the firearm is prohibited or restricted is not an essential element
    of the offence:
R. v. Williams
, 2009 ONCA 342, 95 O.R. (3d) 660, at
    para. 21.

[45]

The
    appellants position is that the trial judge erred in holding that the second
    part of s. 95(1) of the
Criminal Code
is an included offence in the
    first part. The elements of both offences are not the same. The second part of
    s. 95(1) is not an included offence but rather a separate one. Thus, there is
    no evidence that the appellant committed the offence of possession of a loaded
    firearm.
[2]

[46]

The
    respondent submits that, as a matter of logic and common sense, if a prohibited
    firearm is loaded with ammunition then that person possesses a firearm
    together with readily accessible ammunition. Section 95(1) describes two ways
    of committing one offence. It is an offence to possess a loaded prohibited
    firearm
or
an unloaded prohibited firearm with readily accessible
    ammunition. Both modes of committing the offence are found within the same
    subsection of the
Criminal Code
with the latter mode being an included
    offence in the first.

[47]

I
    begin by noting that the respondents submission, that s. 95(1) creates one
    offence with two modes of commission, is contrary to this courts
obiter
in
Williams,
at fn. 3, which held that s. 95 creates two offences -
    possession of a loaded firearm being the first offence and possession of an
    unloaded firearm with readily accessible ammunition being the second. In
    dealing with the respondents submission I will refer to s. 95 as creating two
    offences. That point aside, the respondents submission is flawed in two
    respects.

(a)

The meaning of the
    term loaded

[48]

The
    first problem with the respondents argument is that it ignores the wording of s.
    95(1). The second offence described in s. 95(1) does not simply require the
    firearm be together with readily accessible ammunition as stated by the trial
    judge and as asserted by the respondent; it
also
requires that the
    firearm be
unloaded
. It is a basic principle of statutory
    interpretation that Parliament does not speak in vain:
Attorney General of
    Quebec v. Carriè
res Ste-Thé
rè
se Lté
e
,

[1985] 1 S.C.R. 831, at p. 838.

[49]

The
    term unloaded has a distinct meaning: it is the opposite of the term loaded
    in the first part. Although the term loaded is not defined in s. 95 or
    anywhere else in the
Code
,  regulations
[3]
to the
Firearms Act,
S.C.
    1995, c. 39 contain a definition of the term unloaded which reads:

unloaded, in respect of
    a firearm, means that any propellant, projectile or cartridge that can be
    discharged from the firearm is not contained in the breach or firing chamber of
    the firearm nor in the cartridge magazine attached to or inserted into the firearm.

[50]

By
    virtue of the federal
Interpretation Act
, R.S.C.
    1985, c. I-21, s. 15(2)(b), w
here an enactment contains an
    interpretation section or provision, it shall be read and construed as
    being applicable to all other enactments relating to the same subject-matter
    unless a contrary intention appears. The
Interpretation Act
defines
    the term enactment as an Act [of Parliament] or regulation or any portion of
    an Act or regulation. Therefore, the regulations to the
Firearms Act
are enactments and the definition of unloaded contained in those regulations
    applies to s. 95(1) of the
Criminal Code
. Both enactments, though
    concerned with different aspects, deal with the same subject matter  gun
    control. Further, there is nothing in the
Code
to suggest that this
    definition is inappropriate or contraindicated. Indeed, the definition accords
    with the ordinary meaning one would ascribe to the word unloaded, and by
    extension, loaded when used to refer to a firearm.

(b)

Not an included
    offence

[51]

The
    second respect in which the respondents submission is flawed, is that it
    presumes that a person who is guilty of the first offence will also be guilty
    of the second. It is important to note at the outset the definition of an
    included offence. An offence is included if its elements are embraced in the
    offence charged (as described in the enactment creating it or as charged in the
    count) or if it is expressly stated to be an included offence in the
Criminal
    Code
itself:
R. v. G.R.
, 2005 SCC 45, at para. 25, [2005] 2 S.C.R.
    371. This definition is derived from s. 662 of the
Criminal Code
,
    which authorizes convictions for included offences in only three categories.
    The category with which we are concerned here is the second category - offences
    included in the enactment creating the offence charged.

[52]

Offences
    falling into this category become included if they must necessarily be
    committed
en route
to committing the offence charged. In other words,
    all of the essential elements of the offence must be part of the offence charged:
    see
G.R.
, at paras. 30-31. For example, in order to commit an
    aggravated assault, one must necessarily commit an assault. The respondent
    acknowledges this to be the case.

[53]

However,
    it will not always be true that a person who possesses a loaded firearm has
    necessarily possessed an unloaded firearm together with usable ammunition. For
    example, a person, X, unlawfully possessing a loaded gun will not necessarily
    be the same person who possessed the unloaded gun with readily accessible
    ammunition. Another person, Y, may have been in possession of the gun, lawful
    or otherwise, with readily accessible ammunition, and loaded the gun. X may
    come along and steal Ys loaded gun. Y may give X the gun in loaded condition. Y
    may even lose the loaded gun and X may find it. In each of these circumstances,
    the person guilty of unlawful possession of a loaded firearm does not
    necessarily commit the offence of possession of an unloaded firearm with
    readily accessible ammunition.

(c)

Right to make full
    answer and defence

[54]

My
    conclusion, that the offence of possession of an unloaded firearm with readily
    accessible ammunition is not an included offence of possession of a loaded
    firearm, accords with the principle underlying included offences articulated by
    the majority in
G.R.
: see also
R. v. Simpson (No. 2)
(1981),
    58 C.C.C. (2d) 122 (Ont. C.A.) at p. 133
.
In
G.R
, the Supreme
    Court of Canada observed that since the same set of facts may give rise to
    different charges, it is a fundamental principle of a fair trial that an
    accused know the charge or charges he or she must meet:
G.R.
, at
    paras. 26-27.

[55]

It
    is what the Crown alleges, not what the accused already knows, that is
    important because an accused can only be called upon to meet the charge put
    forward by the prosecution:
G.R.
,

at paras. 26-27. Here, the
    Crown alleged that the gun was loaded. The wording of the count did not include
    particulars to put the appellant on notice that he was also in jeopardy of a conviction
    for possession of an unloaded weapon with ammunition close by.

[56]

The
    principle that an accused must know the case he or she has to meet, also
    underlies the requirement that it is an error to convict when, as here, the
    Crown particularizes the mode of commission of the offence in the indictment
    but fails to prove it as charged and does not seek to amend the indictment to
    accord with the evidence: see
R. v. Saunders,
[1990] 1 S.C.R. 1020.
    Thus, even if the offence of possession of an unloaded firearm with ammunition close
    by were an included offence, the trial judge erred in finding the appellant
    guilty because the Crown particularized possession of a loaded firearm and failed
    to prove it.

[57]

Accordingly,
    I would allow the appeal on this count, set aside the conviction for possession
    of a loaded prohibited firearm and substitute an acquittal.

(5)

Did the trial judge err in finding that the appellant trafficked in
    ketamine on June 24, 2009 and was in possession of ketamine for the purpose of
    trafficking on June 25, 2009?

[58]

The
    appellant submits that the trial judge erred in finding that the appellant
    trafficked in ketamine on June 24, 2009.  The appellant was not arrested on
    that date, no ketamine was found, and there was no confirmation from the
    alleged purchaser that the appellant sold him ketamine. In addition, there was
    no evidence that the appellant was in possession of ketamine for the purpose of
    trafficking on June 25, 2009.

[59]

The
    basis for the conviction on these two counts is not dealt with in the trial
    judges reasons for judgment. I would, however, dismiss the appellants
    argument because there is a strong basis in the overall evidence for these
    convictions including:

(a)     the evidence from several days of surveillance,
    including June 24th and June 25th, 2009, consistent with drug trafficking
    activity;

(b)     the arrest of persons on both
    dates immediately after brief meetings with the accused where they were found
    in possession of ketamine in plastic baggies; and

(c)     the search of the appellants
    apartment the next day which yielded various drugs including ketamine in
    baggies in a box under the appellants bed. The scales and the sawed off
    shotgun and ammunition would support the conclusion that possession of the
    ketamine was for the purpose of trafficking.

Conclusion respecting the conviction appeal

[60]

For
    the reasons I have given, I would allow the appeal with respect to the
    conviction for possession of a loaded firearm contrary to s. 95(1) of the
Criminal
    Code
and set aside that conviction.  In all other respects I would dismiss
    the appeal as to conviction.

Released: June 22, 2012

KMW                                                                K.M.
    Weiler J.A.

I
    agree David Watt J.A.

I
    agree Gloria Epstein J.A.





[1]
The appellant was also convicted of failing to comply with his recognizance and
    sentenced to 30 days imprisonment concurrent with his other sentences. None of
    the grounds of appeal relate to that conviction.



[2]
In making his submissions, the appellant asserts he was convicted pursuant to
    s. 95(1)(a) of the
Criminal Code
; he was not.  There is no reference
    to s. 95(1)(a) in the indictment. The information refers to s. 95(2) which is
    the penalty provision. Nor is there any reference to s. 95(1)(a) in the trial
    judges decision. The appellant was convicted pursuant to s. 95(1).



[3]

See:
Storage, Display and Transportation of
    Firearms and Other Weapons by Businesses Regulations
,
    S.O.R./98-210, s. 1 unloaded;
Storage, Display, Transportation and
    Handling of Firearms by Individuals Regulations
,
    S.O.R./98/209, s. 1 unloaded; and the not yet in force (C.I.F. date = Nov.
    30, 2012)
Gun Shows Regulations
,
    S.O.R./98-211, s. 1 unloaded.


