



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. De Aquino,









2017 BCCA 36




Date: 20170119

Docket: CA43417

Between:

Regina

Respondent

And

Iury Martins De
Aquino

Appellant




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Stromberg-Stein




On appeal from: an
order of the Provincial Court of British Columbia, dated
February 25, 2014 (
R. v. De Aquino
, Colwood Docket No. 160904).

Oral Reasons for Judgment




Counsel for the Appellant:



J.J. Blazina





Counsel for the Respondent:



J. Walker





Place and Date of Hearing:



Vancouver, British
  Columbia

January 19, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2017








Summary:

Appeal of conviction
for possession of cocaine for the purpose of trafficking
based
on circumstantial evidence. Appeal dismissed.
The trial
judges inferences, based on common sense, could reasonably be drawn from the
evidence. This was a strong and compelling circumstantial case where the judge
was entitled to draw the inferences he did and the verdict is one that a
properly instructed trier of fact, acting judicially, could reasonably have
rendered.

INTRODUCTION

[1]

STROMBERG-STEIN J.A.
:
The appellant, Iury
Martins De Aquino, appeals his conviction in provincial court for possession of
cocaine for the purpose of trafficking. The evidence implicating the appellant
was circumstantial. He argues the verdict is unreasonable; or to the extent the
verdict is reasonable it is still unreasonable because the trial judge came to
conclusions based on irrational or illogical reasons.

FACTS

[2]

Around 12:30 a.m. on July 18, 2013, two constables attended at the scene
of an accident involving a motorcyclist and a skateboarder. When they arrived,
an ambulance was present and the motorcycle had been moved off to the side of
the road. Four or five people were standing on the northeast corner of the
intersection, including two or three with skateboards.

[3]

A bystander, who lived nearby, had come to the accident scene when he
heard the accident. When he heard the lights and sirens, he saw the
motorcyclist stop pacing around, and reach his hand under a hedge at the
northeast corner of the intersection. The bystander could only see the top of
the motorcyclists hand, so he could not see what, if anything was in the hand.
The motorcyclist then continued pacing. The bystander told one of the
constables that just before the police arrived he saw the motorcyclist place
one hand underneath the hedge. He took the constable to the spot. The constable
searched with her flashlight and found the remains of a bag of chips and a
plastic bag stuck in the hedge about three inches off the ground, containing 26
smaller bags of white powder, which was conceded at trial to be cocaine. The
appellant was arrested when he came out of the ambulance.

[4]

The appellant did not testify at trial and did not call any other
evidence. He conceded that if the court found he possessed the cocaine in the
manner it was packaged (.75 grams per package for a total of 19.5 grams) it
would lead to the inference it was for the purpose of trafficking. The value of
the cocaine was in the range of $1,500-$2,000.

TRIAL
JUDGMENT

[5]

The issue at trial was whether the Crown had proven beyond a reasonable
doubt that the appellant was in possession of the cocaine. The trial judge
began by noting the criminal standard of proof and how that applied where the
Crowns case was largely circumstantial. He stated:

[8]        The Crowns case
here is, in large part, circumstantial. In cases of circumstantial evidence,
the standard of proof is often stated in a slightly different way. In a
circumstantial case, it is often said that criminal conviction can only follow
if the evidence satisfies the court that there is no other rational explanation
for the circumstances apart from the guilt of the accused. I emphasize,
however, that the use of that phrasing in not intended to suggest that there is
any difference in the general standard of proof in a circumstantial case as
opposed to any other criminal case.

[6]

The judge noted that beyond a reasonable doubt is a very high standard
indeed, but it does not require proof to a mathematical certainty; and
further, that he must consider all of the evidence in its totality in drawing inferences
and determining whether the guilt of the accused person has been established
beyond a reasonable doubt: at paras. 9-10.

[7]

The judge first considered whether the person the bystander observed
placed the cocaine in the hedge. He found that it was, because:

·

Both the bystander and the
constable identified the same general area in the northeast corner of the
intersection when asked to point out where the hedge was on a photo at trial.
More importantly the bystander had led the constable to the precise location
where he had seen the hand go under the hedge just a few minutes earlier, and
that was the same location where the cocaine was found: paras. 17-18.

·

The substance was valuable, and it
was unlikely a person would put it there unless there was some perceived
urgency and it was unlikely it remained there, unclaimed, for any substantial
period of time: paras. 17, 28. Therefore, it was put there recently by someone
at the scene of the accident: para. 19.

[8]

Next, the judge considered whether the person the bystander observed was
the accused person. He concluded he was, because:

·

The bystander had no doubt that it was the motorcycle rider at
the accident scene who put his hand under the hedge, because he was the only
person wearing that kind of jacket, which the trial judge took to mean a
motorcycle jacket: para. 21.

·

According to both constables and the bystander, there was only
one motorcycle at the scene of the accident and only one person (the accused)
in motorcycle garb, including a motorcycle jacket and a helmet: paras. 21, 25.

·

The bystander described the person as being in some pain and
seeking some medical assistance by going inside the ambulance. The accused person
was the only one injured, no one else sought medical treatment, and he was
inside the only ambulance. The skateboarder was not injured, and the constable noted
the skateboarder was in regular street clothes:

paras. 22-23.

·

The accused was arrested just as, or just after, he exited from
the ambulance: para. 25.

[9]

The judge found the following facts did not raise a reasonable doubt:

·

The bystander did not see anything actually being stashed away
because he could not see what was in the motorcyclists hand. He saw only the
top of the motorcyclists hand: paras. 14-15.

·

The bystander described the person who placed his hand under the hedge
as being in his twenties or thirties and disagreed that the person was
approaching 40. In fact, the accused person was 38 years old at the time. However,
the judge said he appeared youthful:

paras. 26-27
.

[10]

Further, the judge considered that because the appellant was involved in
the accident he would anticipate dealing with the police and would want to
quickly dispose of the cocaine.

[11]

Having considered the whole of the evidence the trial judge found the
evidence implicates Mr. De Aquino in such a way that it is not possible to say
that there is any other rational conclusion to be drawn apart from his
possession of the cocaine and an attempt on his part to hide it in the hedge
prior to the arrival of the police and ambulance personnel at the accident
scene.: para. 32. He found the appellant guilty of possession of cocaine for
the purpose of trafficking.

ISSUE

[12]

The sole issue on appeal is whether the guilty verdict was unreasonable,
and therefore should be set aside pursuant to s. 686(1)(a)(i) of the
Criminal
Code,
R.S.C. 1985, c. C-46.

[13]

The appellant advances two main arguments.

[14]

First, he argues the judge failed to appreciate that the evidence at
trial did not establish that only the appellant had the opportunity to place
the drugs under the hedge. In other words, the evidence did not support a
finding that the appellant had the
exclusive
opportunity to place the
drugs under the hedge.

[15]

Second, he argues the judge erred in his reasoning process by imputing
a motive to hide drugs. In essence, the appellant argues that he would only
possibly have the motive to hide drugs if he had possessed the drugs to begin
with, and by finding he had that motive, the judges reasoning puts the cart
before the horse and wrongly reversed the burden of proof by imputing a
motive that could only have existed if the appellant were already guilty.

LAW

Unreasonable Verdict

[16]

Section 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46,
provides, in relevant part:

686 (1) On the hearing of an appeal against a
convictionthe court of appeal

(a) may allow the appeal where
it is of the opinion that

(i) the verdict should be set aside on the ground that
it is unreasonable or cannot be supported by the evidence

[17]

In
R. v. Villaroman,
2016 SCC 33 at para. 55, Cromwell J. for the
Court described the characteristics of a reasonable verdict as follows:

[55]      A verdict is reasonable if it is one
that a properly instructed jury acting judicially could reasonably have
rendered:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381. Applying
this standard requires the appellate court to re-examine and to some extent
reweigh and consider the effect of the evidence:
R. v. Yebes
, [1987] 2
S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be
done in light of the standard of proof in a criminal case. Where the Crowns
case depends on circumstantial evidence, the question becomes whether the trier
of fact, acting judicially, could reasonably be satisfied that the accuseds
guilt was the only reasonable conclusion available on the totality of the
evidence:
Yebes
, at p. 186;
R. v. Mars
(2006), 205 C.C.C.
(3d) 376 (Ont. C.A.), at para. 4;
R. v. Liu
(1989) 95 A.R. 201 (C.A.),
at para. 13;
R. v. S.L.R.
, 2003 ABCA 148 (CanLII);
R. v. Cardinal
(1990), 106 A.R. 91 (C.A.);
R. v. Kaysaywaysemat
(1992), 97 Sask. R. 66
(C.A.), at paras. 28 and 31.

[56]      The
governing principle was nicely summarized by the Alberta Court of Appeal in
Dipnarine
,

at para. 22.

The court noted that [c]ircumstantial evidence does
not have to totally exclude other conceivable inferences and that a verdict is
not unreasonable simply because the alternatives do not raise a doubt in the
jurys mind. Most importantly, [i]t is still fundamentally for the trier of
fact to decide if any proposed alternative way of looking at the case is
reasonable enough to raise a doubt.

[18]

The test to be applied under s. 686(1)(a)(i) in determining whether a
verdict is reasonable is whether the verdict is one that a properly instructed
trier of fact acting judicially could reasonably have rendered. This test is
the same for a judge-alone trial:
R. v. Sinclair
, 2011 SCC 40. The
application of this test involves some element of subjective assessment, as
this Court
re-examines and to some extent reweighs and considers
the effect of the evidence. This Court
is required to bring its judicial
experience to bear:
Biniaris
at paras. 40-42. However, while this Court
may engage in a re-examination and reweighing of the evidence for the limited
purpose of deciding whether the verdict is reasonable, it is not the function
of this Court to substitute its views for those of the trial judge. It is for
the trier of fact to distinguish between reasonable doubt and speculation, and
such an assessment is only set aside if it is unreasonable.

Circumstantial
evidence

[19]

A guilty verdict based on circumstantial
evidence is sound if the trier of fact is satisfied beyond a reasonable doubt
that the guilt of the accused is the only reasonable inference to be drawn from
the proven facts:
R. v. Cooper,
[1987] 1 S.C.R. 860.

[20]

In
Villaroman
,

Cromwell
J. noted that the words rational and reasonable are virtually synonyms
and the reasonable alternatives do not need to be exclusively drawn from proven
facts. In explaining the trier of facts task, he said:

[35]      The issue with respect
to circumstantial evidence is the range of reasonable inferences that
can be drawn from it. If there are reasonable inferences other than guilt, the
Crowns evidence does not meet the standard of proof beyond a reasonable doubt.

[36]      I agree with the respondents position that a
reasonable doubt, or theory alternative to guilt, is not rendered speculative
by the mere fact that it arises from a lack of evidence. As stated by this
Court in
Lifchus
,

a reasonable doubt is a doubt based
on reason and common sense which must be logically based upon the
evidence
or lack of evidence
: para. 30 (emphasis added). A certain
gap in the evidence may result in inferences other than guilt. But those
inferences must be reasonable given the evidence and the absence of evidence,
assessed logically, and in light of human experience and common sense.

[37]      When
assessing circumstantial evidence, the trier of fact should consider
other plausible theor[ies] and other reasonable possibilities which are
inconsistent with guilt:
R. v. Comba
, [1938] O.R. 200 (C.A.),
at pp. 205 and 211, per Middleton J.A., affd [1938] S.C.R. 396;
R. v.
Baigent
, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;
R. v. Mitchell
,
[2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the
Crown thus may need to negative these
reasonable
possibilities,
but certainly does not need to negative every possible conjecture, no matter
how irrational or fanciful, which might be consistent with the innocence of the
accused:
R. v. Bagshaw
, [1972] S.C.R. 2, at p. 8. Other plausible
theories or other reasonable possibilities must be based on logic and
experience applied to the evidence or the absence of evidence, not on
speculation.

[21]

In explaining the difference between a plausible theory and speculation,
Cromwell J. said:

[38]      Of course, the line between a plausible theory
and speculation is not always easy to draw. But the basic question is whether
the circumstantial evidence, viewed logically and in light of human experience,
is reasonably capable of supporting an inference other than the accused is
guilty.

[39]      I have found two particularly useful statements of
this principle.

[40]      The first is from an old Australian case,
Martin
v. Osborne,
55 C.L.R. 367, at p. 375:

In the inculpation of an accused
person the evidentiary circumstances must bear no other
reasonable explanation
.
This means that,
according to the common course of human affairs, the
degree of probability that the occurrence of the facts proved would be
accompanied by the occurrence of the fact to be proved is so high that the
contrary cannot reasonably be supposed.


[41]      While this language is not appropriate for a jury
instruction, I find the idea expressed in this passage - that to justify a
conviction, the circumstantial evidence, assessed in light of human experience,
should be such that it excludes any other reasonable alternative - a helpful
way of describing the line between plausible theories and speculation.

[42]      The second is from
R. v. Dipnarine,
2014
ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that
[c]ircumstantial evidence does not have to totally exclude other conceivable
inferences; that the trier of fact should not act on alternative
interpretations of the circumstances that it considers to be unreasonable; and
that alternative inferences must be reasonable, not just possible.

[43]      Where the line is to be drawn between speculation
and reasonable inferences in a particular case cannot be described with greater
clarity than it is in these passages.

[Emphasis
by Cromwell J.]

[22]

In this case, on appellate review, this Court must consider whether the
properly instructed trier of fact, acting judicially and considering the
totality of the evidence, could reasonably conclude that the only reasonable
conclusion to be reached is that the appellant possessed the cocaine found
under the hedge for the purpose of trafficking. The assessment of the evidence
is made in light of human experience and common sense.

DISCUSSION

Exclusive
Opportunity

[23]

The appellants first and primary contention is
that the judge did not, and could not, find that the evidence supported a
conclusion that the appellant had the exclusive opportunity to place the
cocaine in the hedge. This submission is based primarily on the evidence that
other people were present in the general area identified by the bystander.

[24]

The Crown argues that the possibility that
someone else placed the drugs there is speculative in light of the totality of
the evidence.

[25]

There is no suggestion that the judge
misapprehended the evidence. He acknowledged that the bystander did not see the
appellant put the cocaine under the hedge and only observed the appellant reach
his hand under a few minutes before the police arrived.

[26]

The appellant relies on
R. v. Bock
, 2016
BCCA 195. In
Bock
, this Court allowed an appeal from a guilty verdict on
the basis that other rational conclusions were available on the evidence. In
that case, the evidence disclosed specific facts supporting a reasonable
conclusion that, at the time, the accused person actually did not reside at the
apartment where drugs were found, and had perhaps moved. Such evidence included
a signed lease for another residence, moving boxes, and the presence of other
people and personal items belonging to other people in the apartment. Many
people were observed moving in and out of the apartment, and the police
admitted that they had not watched or maintained continuity of the apartment.

[27]

In this case, the appellant essentially relies
on the presence of other people at the accident scene to argue that other
reasonable conclusions were available; namely, that one of the other bystanders
placed the cocaine there.

[28]

In my view, the appellants argument ignores the
bystanders uncontested evidence that he saw the motorcycle rider place his
hand under the hedge in the location where the cocaine was found a short time
after. It is not disputed there were other people at the scene. But it is
similarly not disputed that the appellant was the only motorcyclist present,
and the only person there dressed in motorcycle garb. The judge correctly and
fairly noted the evidence on this point, including the inconsistencies
regarding the material of the jacket, which inconsistencies he concluded were
immaterial.

[29]

Looking at the evidence through the lens of
judicial experience and applying a good dose of common sense
,
(
R. v.
Swales,
2014 BCCA 350 at para. 65) I would not accede to the appellants
argument on this point.
Bock
is distinguishable based on its
substantially different facts. I conclude it was reasonable for the trial judge
to find that the only reasonable conclusion supported on the evidence here is
that the appellant placed the cocaine under the hedge. On an assessment of the
totality of the evidence in this case, the appellants theory was not a
plausible one based on logic and experience and was, at best, speculative:
Villaroman
at paras. 35-36.

Imputing a Motive

[30]

The appellants second argument is that the
judge improperly imputed to him a motive by inferring that, because of the
value of the cocaine, it must have been placed there recently and under some
sense of urgency. He argues that a motive and opportunity to commit the crime,
with nothing more, is insufficient to sustain a conviction absent evidence of
exclusive opportunity. The appellant relies on the following passage from
Yebes
at para. 26:

[26]      This Court, in
considering an appeal where the sole issue raised is the application of s.
613(1)(a)(i) of the Code, must put itself in the place of the Court of Appeal
and, pursuant to the powers given in s. 623(1) of the Code, consider the matter
anew, and if error be found make such order as the Court of Appeal should have
made. In pursuit of that objective, I can say that there was evidence before
the jury from which it could reasonably find that the two boys were dead before
the fire in the mattress was set and that they did not die from natural causes.
There was evidence upon which the jury could reasonably find that the fire in
the mattress was not accidental but was set by a human hand with the aid of a
liquid accelerant. There was evidence upon which they could reasonably find
that the appellant Yebes had a motive for killing the boys and that he had an
opportunity to do so. If there were no further evidence upon which to support
the Crown's case there could be no doubt that the appellant would be entitled
to an acquittal,
for evidence of motive alone would not be sufficient to
base a conviction and coupling opportunity with motive in the absence of other
evidence would not advance the case unless there were evidence of exclusive
opportunity.


[Emphasis added]

[31]

However, later in that same paragraph in
Yebes
, McIntyre J.
reviewed the statement of the same principle in
R. v. MacFarlane
(1981),
61 C.C.C. (2d) 458 (Ont. C.A.), and stated that:

It may then be concluded that
where it is shown that a crime has been committed and the incriminating
evidence against the accused is primarily evidence of opportunity, the guilt of
the accused is not the only rational inference which can be drawn unless the
accused had exclusive opportunity.
In a case, however, where evidence of
opportunity is accompanied by other inculpatory evidence, something less than
exclusive opportunity may suffice.
This was the view expressed by
Lacourcière J.A. in
R. v. Monteleone
(1982), 67 C.C.C. (2d) 489
(Ont. C.A.), at p. 493, where he said:

It is not mandatory for the
prosecution to prove that the respondent had the exclusive opportunity in a
case where other inculpatory circumstances are proved.

It is also supported by further
comments of Martin J.A. in
R. v. Stevens
(1984), 11 C.C.C. (3d)
518, at p. 534
et seq
., and see, as well,
Imrich v. The Queen
,
[1978] 1 S.C.R. 622, per Ritchie J. at p. 627.

[Emphasis added]

[32]

This is not a case of exclusive opportunity
alone. This is a case where the evidence demonstrates opportunity is
accompanied by other inculpatory evidence. In this case, the bystanders
evidence that the person wearing motorcycle clothes reached his hand under the
hedge where the drugs were found shortly after is that other inculpatory
evidence. No explanation was provided as to why the appellant reached under the
hedge. While the appellant was entitled to remain silent, and no adverse
inferences may be drawn in that regard, this Court noted in
R. v. Wu,
2010
BCCA 589, at para. 46, that the fact the appellant did not offer any
explanation in the face of otherwise inculpatory facts is a matter this Court
can consider in assessing the reasonableness of the verdict.

[33]

In my view, the judge did not impute any motive
or reverse any onus. The judge observed that the drugs were valuable. This
finding is uncontested. The judge inferred from this finding that the person
who placed the drugs under the hedge must have done so recently under some
sense of urgency. This was a common sense inference that was open to him to
make. The judge combined this common sense inference with the totality of the
evidence in reaching his verdict. It is fundamentally for the trier of fact to
draw the line in each case between reasonable doubt and speculation, and absent
unreasonableness, it is not for this Court to speculate upon alternative
inferences. In my view it was reasonable for the judge to conclude that the
evidence as a whole excluded all reasonable alternatives to guilt.

[34]

Accordingly, I would not accede to this
argument.

CONCLUSION

[35]

In my view, the judge properly instructed
himself as to the law on the criminal standard of proof in a circumstantial
case. He properly evaluated the strength of the evidence. He recognized where
the evidence may be weak or unpersuasive, and accorded those aspects little or
no weight. His inferences, based on common sense, could reasonably be drawn
from the evidence. This was a strong and compelling circumstantial case where
the judge was entitled to draw the inferences he did and the verdict is one
that a properly instructed trier of fact, acting judicially, could reasonably
have rendered.

[36]

In the result, I would dismiss the appeal.

[37]

SAUNDERS J.A.
: I agree.

[38]

FRANKEL J.A.
: I agree.

[39]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Madam Justice Stromberg-Stein


