



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Savory, 2022 ONCA 132

DATE: 20220211

DOCKET: C66294

Fairburn A.C.J.O., Doherty and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Savory

Appellant

Mark Halfyard, for the appellant

Marie Comiskey, for the respondent

Heard: February 10, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on
    September 26, 2018.

REASONS FOR DECISION

[1]

The appellant stands convicted of possession of cocaine for the purpose
    of trafficking.

[2]

Almost 2.5 kilograms of cocaine were found in a hidden compartment located
    in the backside upholstery of the front passenger seat in the appellants SUV.
    The sole issue at trial was possession, specifically whether the appellant knew
    that the cocaine was in his vehicle. The sole issue on appeal is whether the
    jurys verdict is an unreasonable one.

[3]

The appellant argues that there was little evidence to support the
    conviction in this case. As he points out, despite being under on-and-off
    surveillance for over a year, he was never seen accessing the secret
    compartment. Nor did his minimalist lifestyle lend support to the theory that
    he was a drug trafficker, operating in high amounts of cocaine.

[4]

The appellant pointed to his brother as the likely culprit. The
    appellants brother, a previously convicted drug dealer and someone who was
    also found to possess drug paraphernalia around the same time as the
    appellants arrest, had gifted him the vehicle. The appellant testified that his
    brother continued to access the SUV with the appellants permission, right up
    to the day prior to the search.

[5]

Against that factual backdrop, the appellant hypothesizes that the jury
    may have come to their erroneous conclusion on what is described as a weak yet
    legally correct instruction on circumstantial evidence. If a more robust
    instruction had been given, one that exceeded the specimen jury instructions,
    then the jury may not have been so quick to fill in the evidentiary blanks with
    guilty inferences.

[6]

The appellant emphasizes that his view of the case was shared by the
    trial judge. At sentencing, the trial judge expressed the view that she may
    not agree with the verdict, that she would have done something different,
    and that she was sympathetic to the appellant. While the appellant
    acknowledges that the trial judges view of the case is not determinative of this
    appeal, he argues that the fact that she expressed such strong sentiments about
    the jurys verdict goes some distance to raising concerns over whether the
    verdict was in fact unreasonable.

[7]

In the end, the appellant argues that the conviction in this case
    represents a perverse verdict, one that no properly instructed jury acting
    reasonably could have rendered.

[8]

We do not accept this submission. While it is correct that the
    trial judge expressed the view that she may well have arrived at a different
    verdict, the voicing of that thought did not render the verdict unreasonable.
    The appellant exercised his right to a jury trial. Having done so, the jury
    became the fact finder in this case, and [a]ny judicial system must tolerate
    reasonable differences of opinion on factual issues:
R. v.
Biniaris
, 2000 SCC 15
, at para. 24. This may well
    be one of those cases.

[9]

Our task is not to displace the jurys verdict
    because the trial judge may have come to a different conclusion. Rather, our
    task is to consider whether, based upon the totality of the evidence, the
    admittedly properly instructed jury could have arrived at the verdict.

[10]

The evidence in this case included the
    following:

-

The SUV was registered to and legally owned by
    the appellant for almost two year prior to the search;

-

He was seen driving that vehicle on multiple
    occasions in that time frame;

-

During the last 14 months prior to the search,
    the appellant was the sole person seen by surveillance officers driving that
    vehicle, meaning that his brother was never seen driving it;

-

The appellant had children whose car seats  which
    he had installed  were in the backseat of the vehicle, from which the secret
    compartment was visible;

-

Indeed, one of the car seats was so close to the
    secret compartment that an officer testified that a childs feet could touch
    it;

-

The appellant was seen by surveillance putting
    his children into the backseat of the car; and

-

The police discovered the secret compartment
    because it looked weird, describing it as a large upholstered panel affixed
    to the back of the seat with a gap as wide as about two centimeters, which
    allowed an officer to put his fingers behind the panel and pull it back,
    revealing plastic bags containing all of the cocaine.

[11]

That evidence, combined with the sheer value of
    2.48 kilograms of cocaine, a quantity of cocaine that was unlikely to have been
    left by anyone in the appellants unwitting control, made for a factual case
    upon which a properly instructed jury could reasonably arrive at a conclusion
    of guilt.

[12]

The appeal is dismissed.

Fairburn
    A.C.J.O.

Doherty
    J.A.

David
    M. Paciocco J.A.


