



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Awad, 2021 ONCA 285

DATE: 20210504

DOCKET: C66373

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elia Simon Awad

Appellant

Howard L. Krongold, for the appellant

Christa Reccord and Brigid Luke, for the respondent

Heard: March 17, 2021 by video conference

On appeal from the convictions entered on August 15, 2018
    by Justice Michelle OBonsawin of the Superior Court of Justice, with reasons reported
    at 2018 ONSC 4901.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for possession of almost one
    kilogram of cocaine for the purpose of trafficking and for possession of the
    proceeds of crime in the amount of $1,990.

[2]

The Ottawa Police Service conducted surveillance of the appellant for 23
    days in connection with suspected drug trafficking activities. The surveillance
    revealed that the appellant and his associates had frequently engaged in
    various activities consistent with drug trafficking, such as short meetings on
    streets, in public parking lots, or in the parking lot of the garage next to
    the appellants residence, hand-to-hand transactions, and counter-surveillance manoeuvres.
    A few weeks before his arrest on the cocaine-related charges, police observed
    the appellant helping an associate to mail coffee tins full of marijuana to
    Nunavut. The appellant was arrested and charged with various offences related
    to trafficking in marijuana, but those charges were subsequently withdrawn.

[3]

The police obtained four search warrants to search the appellants residence
    and three other locations related to him or his associates. While the police
    were in the process of executing a search warrant at the appellants residence,
    the appellant arrived in the front passenger seat of a car driven by George Abou-Eid.
    Mr. Abou-Eid attempted to drive away but his car became stuck in the snow. Officer
    Grenier was wearing his police takedown vest on which POLICE was written in big
    white letters. He reached the front passenger corner of the car, banged on the
    hood, and yelled for the driver to stop. The appellant was locked in a stare
    with Officer Grenier who concluded that he had his hands close together towards
    the floor area in front of the passenger seat at his feet. Officer Grenier drew
    his firearm to address the potential of the appellant retrieving a weapon from
    the area of his feet and to address the vehicle not stopping. The car stopped.
    Officer Grenier observed a grey plastic bag partially sticking out from under
    the front passenger seat. The package was wedged fairly snuggly under the seat
    and he had to use a little bit of force to pull it out. His search of the car disclosed
    a 985.85-gram brick of cocaine wedged under the passenger seat where the
    appellant had been sitting. Cash in the amount of $1,990 was seized from the
    appellants jean pocket at the time of his arrest.

[4]

The appellant submits that the trial judge made several errors: she
    incorrectly used his apparent involvement in marijuana trafficking as evidence
    of his involvement in cocaine trafficking; she failed to make the necessary
    finding that the appellants observed alleged trafficking activities were related
    to cocaine trafficking; she failed to find that Mr. Abou-Eid had sole possession
    of the cocaine in the car that he rented and was driving at the time of the
    takedown by police; and she faulted the appellant for his failure to testify. He
    submits that the proceeds of crime conviction arises from and falls with the cocaine
    conviction. Finally, he submits that the proviso cannot be used to correct the trial
    judges errors: while it was not an unreasonable verdict, this was not an
    overwhelming case for the Crown where an acquittal would have been impossible
    to obtain.

[5]

We do not accept these submissions.

[6]

First, the trial judge did not misuse the evidence of the appellants apparent
    involvement in marijuana trafficking or engage in prohibited propensity reasoning,
    as the appellant alleges. The appellant points to the trial judges reasons at
    para. 118 as evidencing the prohibited propensity reasoning that, because the
    appellant was a drug dealer, he was trafficking cocaine. Moreover, the
    appellant argues, the trial judge erred in failing to grasp the exculpatory distinction
    of the appellant being a marijuana trafficker but not a cocaine trafficker.

[7]

As a starting point, Crown counsel expressly submitted that the Crown was
    not seeking to use the evidence of the appellants drug trafficking activities
    for propensity purposes but as evidence that the appellant ran a large drug-trafficking
    scheme.

[8]

We do not read the trial judges reasons in the way that the appellant
    suggests. In para. 118 of her reasons, the trial judge concluded that the appellants
    apparent engagement in marijuana trafficking was not a relevant consideration
    because of the expert evidence that drug dealers could traffic in more than one
    kind of drug. As a result, she rejected, as she was entitled to do, the defence
    argument that the evidence of the appellants participation in marijuana trafficking,
    including the mailing of the marijuana-filled coffee cans and the seizure of
    marijuana and related paraphernalia from his residence, negated or undermined
    the conclusion that he was involved in cocaine trafficking.

[9]

Further, the trial judge was not required to conclude that the appellants
    observed trafficking activities involved cocaine before she could link those
    activities to the cocaine under his seat. The surveillance evidence was only one
    part of all the evidence that the trial judge considered. The Crown explicitly proffered
    the surveillance evidence of the appellants involvement in marijuana
    trafficking, and drug trafficking generally, in relation to the appellants knowledge
    and control of the cocaine under the front passenger seat of the car. Trial
    counsel for the defence agreed that the trial judge would have to look at this surveillance
    evidence, but he argued that there may be innocent explanations for the recorded
    activities. Consistent with the submissions of counsel, the trial judge stated
    at para. 114 of her reasons: Furthermore, I must consider the surveillance
    evidence in the context of the evidence as a whole. It is clear that this plays
    a significant role in my assessment of the elements of constructive possession.

[10]

The
    trial judge did not consider the evidence in a piecemeal fashion. She correctly
    instructed herself that she was required to review all the relevant facts presented
    in totality to determine whether [the appellant] personally or jointly possessed
    what was being transported in that vehicle

. The appellants
    involvement in drug trafficking as revealed by police surveillance was only one
    of the several pieces of circumstantial evidence upon which the trial judge was
    entitled to rely to ground her finding that the appellant was guilty of possession
    of cocaine for the purpose of trafficking. The trial judges reasons demonstrate
    that she considered the totality of the evidence. As the appellants trial
    counsel submitted, it is the cumulative effect of relevant circumstances which
    must be assessed in determining whether proof beyond a reasonable doubt exists.

[11]

This
    evidence also included the unchallenged expert evidence that the appellants
    observed activities were consistent with drug trafficking and that drug traffickers
    often deal in more than one type of drug, work with associates or runners, and use
    different locations such as safe residences or stash houses. The trial judge
    also accepted the expert testimony that it was highly unlikely that one kilogram
    of cocaine was left in the car with individuals who did not know it was there,
    and that this brick would likely be re-pressed or cut into smaller quantities
    and mixed with cutting agents for sale. She noted the drugs, digital scales,
    and drug paraphernalia that were seized at the appellants residence and the other
    locations associated with him or his associates, including various baggies that
    would not be used for marijuana, cocaine-cutting agents, and a large cocaine
    press. She concluded that the garage attached to the appellants residence was
    not a functional garage but the appellants hub where he had drug-related meetings
    and exchanges. She accepted the Crowns theory that the appellant was running a
    large drug operation. Finally, the trial judge relied on the appellants close proximity
    to the cocaine under his seat and found that his crouched movements upon arrest
    were attributable to him trying to push the brick of cocaine under his seat.

[12]

With
    respect to the appellants argument concerning Mr. Abu-Eid, the trial judge expressly
    considered the alternatives of sole or joint possession and her reasons are
    responsive to the chief defence argument that Mr. Abu-Eid and not the appellant
    was the cocaine trafficker. The trial judge was not obliged to conclude that
    Mr. Abu-Eid alone possessed the cocaine found in the car he was driving or that
    it should leave her with a reasonable doubt of the appellants guilt. The fact
    that upon his arrest Mr. Abu-Eid had on his person a small amount of cocaine,
    consistent with personal use, that could have come from the brick found under the
    passenger seat of his rental car, was not dispositive of this issue. Based on
    the evidence that we have just reviewed, it was open to the trial judge to conclude
    that the appellant possessed the cocaine alone or jointly with Mr. Abu-Eid.
    Proof of possession does not require exclusivity.

[13]

Finally,
    the trial judge did not draw any adverse inference or inference of guilt from
    the appellants silence. Rather, she rejected the theories raised by the defence
    as being speculative and not based on any evidence, since the appellant elected
    not to testify. It was open to her to conclude that the silence of the appellant
    failed to provide any basis for concluding otherwise once [she determined that]
    the uncontradicted evidence pointed to guilt beyond a reasonable doubt:
R.
    v. Noble
, [1997] 1 S.C.R. 874, at para. 82.

[14]

We
    see no error or basis for appellate intervention. Given this disposition, it is
    not necessary to determine if the proviso would apply.

[15]

The
    appeal is dismissed.

Paul Rouleau
    J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


