



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Syed, 2018 ONCA 161

DATE: 20180216

DOCKET: C63075

Hoy A.C.J.O., Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashique Syed

Appellant

Michael A. Crystal, for the appellant

Helena Solin, for the respondent

Heard: February 13, 2018

On appeal from the conviction entered on October 14, 2016
    and the sentence imposed on January 30, 2017 by Justice N.M. Karam of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant submits that the trial judge erred
    in concluding that the appellant had possession of the cocaine and
    hydromorphone found in a safe in the basement room the appellant had rented.

[2]

The appellants tenancy ended some two or three
    weeks before the landlords discovery of the drugs. The appellant had rented a
    room for 30 days. His landlord lived in the home but did not give the appellant
    a key to the house. The landlord was reclusive and did not permit visitors. The
    home had an alarm system; on the rare occasions that the landlord left the
    house, he locked it and set the alarm. Even the appellant could not get into
    the house when the landlord was out. When the landlord went to the basement to
    clean it, some two or three weeks after the appellants departure, he found
    materials in an open red safe that caused him concern. The landlord called
    police who removed drugs, some $15,000 worth of cocaine and hydromorphone from
    the safe. When the appellant came to the landlords home as earlier agreed to
    retrieve his personal possessions he was arrested by police, who found the key
    for the red safe on the appellants person.

[3]

The trial judge correctly observed that the
    evidence was circumstantial, and that in order to establish possession, the
    Crown had to prove knowledge of and control over the drugs, beyond a reasonable
    doubt.

[4]

The trial judge found the landlord credible, and
    accepted his evidence that no one else had entered the home in the period
    between the appellants departure and the discovery of the drugs. He accepted
    that the appellant had been the last and only person to occupy the area where
    the drugs were found. He concluded that the appellant must have been confident
    that the drugs were secure in the basement, given his landlords reclusive
    nature, and that no other person would have left such valuable drugs in the
    basement.

[5]

The appellant submits that the trial judge erred
    in several respects:

1.

He misapplied the law on circumstantial evidence
    by (a) failing to appreciate that a reasonable doubt can arise from a lack of
    evidence; and (b) failing to consider other reasonable possibilities.

2.

He failed to sufficiently consider that the
    presence of a health card registered to an unknown person, in the safe beside
    the drugs could give rise to a reasonable doubt.

3.

He placed too much emphasis on the landlords
    demeanour while testifying.

[6]

We do not agree.

[7]

The trial judge did not err in his approach to
    this case that depended on circumstantial evidence. The trial judge expressly
    referred to and considered the evidence which the appellant says should have
    raised a reasonable doubt, including the evidence that a third partys health
    card was found in the safe. The fact that the landlord gave a house key to his elder
    brother on occasions when the landlord was out of the country, or that the
    appellants other brother, who was involved in drug related activities, came to
    the front door on one occasion but did not enter the house did not undermine
    the trial judges acceptance of the landlords evidence that no one else
    entered the basement premises during the relevant period. Nor are we persuaded
    that the trial judge over-emphasized the landlords testimonial demeanour.

[8]

The trial judges conclusion that he was satisfied
    beyond a reasonable doubt that the appellant had knowledge of and possession of
    the drugs was logically based on the evidence before him, was reasonable, and free
    of error.

[9]

Accordingly, the appeal from conviction is
    dismissed, and as the sentence appeal is dependent on the success of the
    conviction appeal, leave to appeal sentence is refused.

Alexandra Hoy A.C.J.O.


Janet Simmons J.A.


G. Pardu J.A.



