



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buchanan, 2020 ONCA 245

DATE: 20200408

DOCKET: C65914

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jetter Buchanan

Appellant

James Foy, for the appellant

Sarah Shaikh, for the respondent

Heard: March 12, 2020

On appeal from the conviction entered on
    October 26, 2017 by Justice Cecile Applegate of the Ontario Court of Justice.

FAIRBURN J.A.:

A.

OVERVIEW

[1]

Police officers believed that drug trafficking
    was taking place within a residence. They watched as the appellant drove up to that
    residence, parked his car, went inside, emerged a short time later, and drove
    off. The police then stopped the appellant and arrested him for being in possession
    of controlled substances. A search incident to arrest revealed a good deal of
    cash, a loaded firearm, heroin and cocaine.

[2]

While the trial judge concluded that the appellants
    ss. 8 and 9
Charter

rights had been breached, she dismissed the
    appellants application to exclude the evidence under s. 24(2) of the
Charter
.
Convictions were entered on various drug trafficking and firearm offences.
    A four-and-a-half-year sentence was imposed.

[3]

This is an appeal from conviction on the basis
    that the trial judge erred in failing to exclude the evidence under s. 24(2).
    In the alternative, the appellant claims that the verdict was unreasonable.

[4]

For the reasons that follow, I would dismiss the
    appeal.

B.

CONTEXT

[5]

A confidential informant told the police that an
    individual by the name of Jason Nacinovich was trafficking heroin and fentanyl
    out of a specific residential address in Barrie, Ontario. Several civilians had
    previously made complaints about people coming and going from that home. The
    police set up surveillance on the address and made observations consistent with
    what they believed to be drug trafficking in the home.

[6]

Based on the confidential tip and the
    surveillance on the home, the police applied for a search warrant for the home.
    The warrant was declined by a Justice of the Peace on the following basis:

Grounds as presented and when considered in
    totality, falls short of rpg to believe that items to be searched for will be
    at the location. No evidence to show that heroin and fentanyl would be in
    residence.

[7]

When the police learned that the search warrant
    had been denied, they decided to arrest the next suspected buyers. The team
    leader, Det. Fitzgerald, explained at trial his understanding as to why the
    warrant had been denied: that there were insufficient grounds to believe that heroin
    and fentanyl, as opposed to other controlled substances, were in the residence.
    Accordingly, he instructed his team to arrest the next suspected buyers 
    [p]ersons that come and show behaviour similar to what weve observed over the
    last couple of days. Det. Fitzgerald was hopeful that by proceeding in this
    way, the police would obtain grounds to advance a second search warrant
    application for the home:

I believe we have reasonable grounds to make
    the arrest and then search incident to arrest. Yes, I would hope to locate the
    drugs that in my mind, theyre purchasing from the residence, and theyre under
    arrest for possession of a controlled substance, and then we have the evidence
    to support that which then I can add to my warrant hopefully meet the threshold
    to get the warrant for [the address].

[8]

The appellants vehicle was the next one to
    arrive after the police learned that the search warrant was refused. He and his
    passenger went inside the home, stayed for about 15 minutes and then left. An
    officer making the observations believed that there were grounds to arrest the
    appellant and his passenger for being in possession of a controlled substance. Accordingly,
    two uniform officers were instructed to pull over the vehicle and make the
    arrests.

[9]

Searches of the vehicle incident to arrest
    revealed:

a)

a case that had been secreted behind a modified
    glove box, containing a stolen, loaded, restricted firearm;

b)

four cell phones;

c)

a significant amount of cash;

d)

23.56 grams of cocaine and 29.84 grams of heroin
    packaged in small baggies and secreted in an air vent.

[10]

The appellant also had a leather wallet slip in
    his pocket, one that matched his wallet. That slip contained ownership and
    insurance documents for the vehicle in someone elses name. The car also
    contained auto financing documents in relation to the vehicle, dated only weeks
    before the offence. They were addressed to the appellant and suggested that he
    owed a sum of money for the vehicle, as well as costs that had been incurred as
    a result of non-payment.

C.

THE DECISION APPEALED FROM

[11]

The appellant claimed that: (a) his s. 9
Charter

rights had been infringed on the basis that the police lacked sufficient
    reasonable grounds to arrest him; (b) his s. 8
Charter

rights
    had been infringed as a result of conducting a search incident to an unlawful
    arrest; and (c) the evidence arising from the search incident to the unlawful
    arrest should be excluded under s. 24(2) of the
Charter
.

[12]

The trial judge found that the appellants ss. 8
    and 9
Charter

rights had been infringed. While she accepted
    that the police held a subjective belief that the appellant had purchased drugs
    in the residence, she concluded that this belief was not objectively reasonable
    in the circumstances. Accordingly, the trial judge found that the arrest
    breached the appellants s. 9
Charter

rights. The s. 8 breach
    necessarily flowed from the fact that the search incident to arrest was
    unreasonable given the unlawful nature of the arrest.

[13]

The trial judge then went on to address the
    three
Grant

factors for consideration in determining whether to
    exclude the evidence obtained in a manner that infringed the appellants
Charter

rights: (a) the seriousness of the
Charter
-
infringing state
    conduct; (b) the impact of the breach on the
Charter
-
protected
    interests of the accused; and (c) societys interest in an adjudication of the
    case on the merits:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 71.

[14]

Under the first branch, the trial judge found
    that while the police conduct was negligent, it was not flagrant or abusive. She
    held the view that, while the police did not have adequate grounds to arrest
    the appellant, they had sufficient grounds to have justified an investigative
    detention. Even so, the trial judge found that the police failed to consider
    that option. She also recognized that, on its own, an investigative detention
    would not have afforded the police the ability to search the vehicle where the
    drugs and gun were located. Ultimately, she concluded that the police behaviour,
    while serious, [was] not such that requires the Court to distance itself from
    that behaviour, in these particular circumstances.

[15]

On the second branch, the trial judge accepted
    that the impact of the breach on the accuseds
Charter
-
protected
    interests was significant and favoured exclusion. This is not in dispute on
    appeal.

[16]

On the third branch, the trial judge found that
    the charges were serious, that the evidence was reliable, and that it was
    critical to the Crowns case. Overall she found that these factors favoured inclusion.
    At the same time, she observed the equally important fact that when
    investigating serious crime, the police should respect
Charter

rights.

[17]

After balancing all three factors, the trial
    judge dismissed the application for exclusion. She concluded as follows:

In summary: (a) the police conduct was
    serious, but not egregious; (b) the impact on the accuseds
Charter
rights
    was significant, and (c) the value of the evidence is also significant. In
    weighing all of these factors, the defence have not satisfied me that the
    admission of the evidence would bring the administration of justice into
    disrepute. Therefore, the evidence of the drugs and the gun are admissible.

[18]

The trial judge then moved on to consider
    whether she was satisfied beyond a reasonable doubt that the Crown had proven
    the various possession offences. The parties agreed that the core issue for her
    determination was whether the appellant had knowledge of the contents of the
    vehicle, specifically the loaded firearm and drugs. Satisfied that the Crown
    had proven knowledge beyond a reasonable doubt, the trial judge convicted the
    appellant. The passenger was acquitted.

D.

DID THE TRIAL JUDGE ERR IN HER SECTION 24(2)
    ANLAYSIS?

(i)

The Alleged Errors and Standard of Review

[19]

The appellant maintains that the trial judge
    made three specific legal errors in her s. 24(2) analysis, all of which relate
    to the first prong in the
Grant

test: the seriousness of the
Charter
-
infringing
    state conduct. He argues that she erred in:

a)

finding that the police had the grounds to
    conduct an investigative detention;

b)

failing to appreciate that the police arresting the
    appellant after the search warrant had been denied showed a cynical disregard
    for the judicial process; and

c)

treating police negligence as a factor that pulled
    away from exclusion.

[20]

The appellant argues that any one or combination
    of these errors allow this court to conduct a fresh s. 24(2) analysis, which
    exercise should result in exclusion.

[21]

It is not for this court to substitute its own
    views respecting the seriousness of state conduct for those of the trial judge:
R. v. White
,
2015 ONCA 508, 127 O.R. (3d) 32, at para. 63. The
    three-prong
Grant

inquiry requires trial judges to find facts
    and engage in nuanced balancing exercises, ones that call for the weighing of numerous
    factors and competing interests. Strong deference is owed to determinations
    that arise from that process. Accordingly, absent an error in principle,
    palpable and overriding factual error or an unreasonable determination, a s.
    24(2) decision is entitled to deference:
Grant
, at paras. 86, 127;
R.
    v. Mian
,
2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77;
R. v. Côté
,
2011 SCC 46,
[2011] 3 S.C.R. 215,
at para. 44.

[22]

Applying that standard in this case, I conclude
    that there is no basis to overturn the trial judges decision.

(ii)

The Police had Sufficient Grounds to Detain for Investigation

[23]

The police may detain an individual for
    investigation where, in all of the circumstances, there exist reasonable
    grounds to suspect that the individual is connected to a particular crime and
    the individuals detention is necessary:
R. v. Mann
,
2004 SCC 52,
    [2004] 3 S.C.R. 59, at para. 45. Reasonable grounds to suspect is a lower
    standard than reasonable grounds to believe. The first engages a reasonable
    possibility, while the latter engages a reasonable probability:
R. v.
    Chehil
,
2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27. When
    determining whether those thresholds have been reached, a common sense and
    practical approach to considering all of the circumstances is called for.

[24]

The trial judge concluded that while the police had
    mistakenly believed that they had the grounds to arrest the appellant, she
    was satisfied that their grounds rose to the level of a reasonable suspicion
    that the appellant was in possession of a controlled substance, sufficient to
    justify an investigative detention. The appellant argues that the trial judge
    erred in arriving at that conclusion. Relying upon
R. v. Simpson
,
(1993)
    79 C.C.C. (3d) 482 (Ont. C.A.), the appellant maintains that an individual
    cannot be stopped and investigated simply on the basis that he or she has
    attended at a home where drug trafficking is suspected to occur. The appellant
    says that is exactly what happened in this case. Accordingly, the appellant
    argues that the police had no grounds to even stop the appellants vehicle, let
    alone arrest him. He contends that, had the trial judge appreciated this fact,
    it would have worked to aggravate the seriousness of the breach.

[25]

I start with the observation that the trial judges
    finding that there were sufficient grounds for an investigative detention
    appears to have been conceded by the appellant at trial. Early in her reasons,
    the trial judge specifically adverted to that concession. As she noted, while
    the grounds were not sufficient to support an arrest, it is conceded that this
    was sufficient to conduct an investigatory detention of the accused.

[26]

The trial judges view that the matter had been
    conceded is an understandable one when counsels closing submissions are
    considered. By way of example, counsel made the observation, you dont arrest
    suspected buyers, you detain them and the police would have been entitled to do
    that and ask a few questions, make observations. When counsel was asked if the
    matter was being concede[d], on the evidence before [the trial judge], that
    the police officers had sufficient grounds to conduct an investigative
    detention of [the appellant], counsel answered 
[c]ertainly I think they
    could have
 [emphasis added].

[27]

While the appellant argues that other aspects of
    trial counsels argument qualify the concession, I do not need to resolve this
    point. As I will explain, whether the fairly clear concession was later
    qualified, is neither here nor here because there were ample grounds upon which
    to detain the appellant for investigation.

[28]

I do not accept the appellants suggestion that
    this case is similar to
Simpson
.
As the respondent points out,
    the
Simpson

case operates against a completely different set of
    facts. While Ms. Simpson was arrested shortly after she was seen leaving a suspected
    crack house, the police information about the house was of unknown age and
    unknown reliability. Indeed, the officer who detained Ms. Simpson testified
    that he had simply read an internal police memorandum authored by another
    officer describing that residence as a suspected crack house. That
    information was obtained from an unidentified street contact. The detaining
    officer knew nothing about the house and the tip from the street contact had
    not been confirmed.

[29]

It was against that factual backdrop that Doherty
    J.A. said in
Simpson
,
at p. 504:

Attendance at a location believed to be the
    site of ongoing criminal activity is a factor which may contribute to the
    existence of articulable cause. Where that is the sole factor, however,
and
    the information concerning the location is itself of unknown age and reliability,
    no articulable cause exists
. Were it otherwise, the police would have a
    general warrant to stop anyone who happened to attend at any place which the
    police had reason to believe could be the site of ongoing criminal activity.
    [emphasis added]

[30]

Although the term articulable cause was replaced
    with the term reasonable grounds to detain in
Mann
,
at para. 33,
    the law as articulated by Doherty J.A. in
Simpson

remains good
    law. Even so, it does not assist the appellant in his argument.

[31]

The facts of this case are not analogous to
    those in
Simpson
.
Here, the police were not dealing with
    information about the drug house that was of unknown age and reliability. Rather,
    while the information initially came to light through a confidential informant
    tip, the police had amply confirmed that information. For instance, by the time
    that the decision was made to arrest the appellant, the police knew the
    following:

a)

a confidential informant tip had been received
    in May 2016 that heroin and fentanyl trafficking was taking place in the Nacinovich
    residence at which the appellant attended;

b)

citizens had made several complaints to the
    police about vehicle and pedestrian traffic at that residence;

c)

two days of surveillance was conducted on that
    residence;

d)

several experienced drug investigators were
    involved in interpreting the activity seen at that residence, including:


(i)

numerous individuals attending at the residence
    on foot, by bicycle, and by car;


(ii)

some of those individuals were known drug users;


(iii)

one person was known to the police as a heroin
    dealer;


(iv)

most of the people stayed in the residence for
    less than ten minutes and, in a few cases, it was three minutes or less;


(v)

in a few cases, people who had entered the
    residence were seen placing something in their pockets or had something in
    their hands;


(vi)

on one occasion, Mr. Nacinovich drove with two
    females to another location, entered it and emerged several minutes later. He
    was seen walking back to the car while putting something in his right pocket;


(vii)

while the police awaited the search warrant
    application, they saw Mr. Nacinovich emerge from his residence, approach a
    waiting vehicle, reach into the drivers side and then look down at his hand as
    he walked back toward his home.

[32]

The appellant suggests that
Simpson

stands
    for the proposition that mere attendance at a drug house cannot furnish the
    grounds to an investigative detention. There is no such blanket rule arising
    from
Simpson
.
While reasonable grounds to suspect may not exist
    where the sole factor informing the grounds is attendance at a drug house
    where the information concerning the location is itself of unknown age and
    reliability, this does not mean that attendance at a drug house in other
    circumstances cannot furnish the grounds for an investigative detention.
    Indeed, there are times where, based upon the totality of circumstances, a
    persons attendance at a drug house may even form sufficient grounds for arrest:
R. v. Rover
,
2018 ONCA 745, 145 O.R. (3d) 135, at paras. 11-13.

[33]

When considering the sufficiency of grounds to
    detain and arrest, it is essential to take into account all of the
    circumstances known to the police at the time that the investigative step is
    taken. The factual matrix of this case is fundamentally different than the one
    that drove the result in
Simpson
.
This case involved
    experienced police officers, some of whom had deep experience in investigating
    drug-related crime. They were permitted to bring their practical, everyday
    experience to the interpretation of what they were seeing:
Chehil
,
at para. 29.

[34]

Unlike
Simpson
,
this is not a
    case where the age or reliability of the information about what was believed to
    be going on in the home was wanting. There was a confidential tip about drug
    trafficking at the exact residence where civilians had made complaints about
    activity that suggested short visits to buy drugs. Police surveillance
    confirmed that activity, revealing numerous people, some of whom were known to
    the police from the local drug community, attending at the residence for very
    short periods of time. The police even observed what they believed to be a hand-to-hand
    drug transaction through the window of a vehicle out front of the residence, just
    prior to the appellants attendance at the home. He was only in the home for
    fifteen minutes. Again, the police testified that this was consistent with a
    drug transaction.

[35]

There was an ample factual foundation upon which
    the trial judge could conclude that the police had sufficient grounds to detain
    the appellant for investigation. Indeed, so plentiful were the grounds that
    this may well have been a case where the s. 9 issue could have resolved
    differently.

(iii)

The Police did not Improperly Ignore the Justice
    of the Peaces Refusal

[36]

The trial judge concluded that the police were
    genuinely trying to respond to the concerns raised by the Justice of the Peace
    in order to satisfy her of the grounds to enter [the] residence.

[37]

The appellant maintains that this was an
    unsupportable view of the evidence because the Justice of the Peace was not
    seeking additional information or raising concerns. Rather, she denied the
    search warrant because there were insufficient grounds to believe that the
    items to be searched for  heroin and fentanyl  would be found in the
    residence.

[38]

The appellant argues that the police
    misinterpreted the warrant denial as an invitation to arrest the next
    suspected buyer. By doing so, the appellant contends that the police
    essentially flouted the Justice of the Peaces decision, one that clearly conveyed
    to the police that they did not have reasonable grounds to believe there were controlled
    substances in the apartment. The appellant argues that the denial of the
    warrant to search the residence clearly telegraphed to the police that they did
    not have the grounds for arrest, seeing as the arrest was predicated on the
    fact that the appellant had bought drugs in that location. The appellant maintains
    that the failure to respect the Justice of the Peaces decision should have
    aggravated the seriousness of the police conduct.

[39]

I do not agree that the police saw the denial of
    the search warrant as an invitation to arrest the next person who came to the
    residence. Rather, the denial of the search warrant caused the police to pursue
    alternative means to advance their investigation. There was nothing wrong with
    doing so. Indeed, the appellant appropriately acknowledges that there is
    nothing inherently wrong with the police using a lawful arrest to advance an
    investigation, even where that arrest is to assist with furnishing the grounds
    upon which a search warrant application may rest.

[40]

Moreover, the police did not simply arrest the
    next person to arrive at the residence. Rather, they set out to arrest the next
    person who they believed to have done a drug transaction in the home. In other
    words, they set out to arrest the next person they had reasonable grounds to
    arrest. Given the short time that the appellant attended at the residence, the
    police believed that he fit the same pattern as the people who they had been
    previously seen coming and going from the residence.

[41]

The denial of a search warrant does not act as a
    legal declaration that the police are prohibited from using the grounds
    contained within the Information to Obtain the warrant to furnish grounds for
    other purposes. It is important to distinguish between the role of a justice in
    determining whether to issue a search warrant and the role of the police in
    determining whether they have sufficient grounds to arrest. These are two
    fundamentally different acts.

[42]

When considering whether to issue a search
    warrant, a Justice of the Peace has a specific and discrete job to do: consider
    whether there are sufficient reasonable grounds to support the statutory prerequisites
    to issuance. Justices are not required to give reasons for granting or
    dismissing search warrant applications. Accordingly, it will not always be
    possible to know why a search warrant has been denied. There may be any number
    of reasons for the dismissal of an application, including insufficient grounds
    about the alleged offence, about the location to be searched, whether the items
    to be seized are in the location to be searched and so on.

[43]

On the other hand, the grounds for arrest
    involve an assessment of all of the circumstances known to the police at the
    time of the arrest. In this case, those circumstances involved information that
    was included in the Information to Obtain the search warrant, but also included
    what the police observed while the warrant was being considered: what appeared
    to be a hand-to-hand drug transaction outside of the home. Determining whether
    the police had sufficient grounds to justify an arrest is a matter that falls
    within the exclusive domain of the trial judge.

[44]

While I accept that it would be wise for the
    police to pause and consider the strength of their grounds in the face of a
    search warrant denial, particularly where their grounds to arrest overlap with
    the grounds for the search warrant, there is nothing inherently wrong with the
    police pursuing other investigative options based upon their own view of the
    facts. In other words, the police are not required to alter what they believe
    (or suspect) to be true, simply because a search warrant has been denied:
R.
    v. Bacon
,
2010 BCCA 135, 285 B.C.A.C. 138, at paras. 20-21.

[45]

This is particularly true in a case like this,
    where the police have direct insight into why the search warrant was denied
    because the Justice of the Peace gave short reasons for the denial. She said it
    was because she was not satisfied that the specific drugs  heroin and fentanyl
     would be found in the place to be searched.

[46]

Accordingly, there was nothing about the police
    conduct in this case that aggravates the seriousness of the breach. The police
    were not, as the appellant suggests, flouting the Justice of the Peaces
    decision. Indeed, to the contrary, they showed respect for that decision and
    worked toward obtaining further grounds to fill what the Justice of the Peace
    perceived as the gap in the warrant application: evidence respecting the actual
    drugs of heroin and fentanyl.

(iv)

Negligent Police Conduct Does not Always Pull
    Toward Exclusion

[47]

The appellant emphasizes that the trial judge concluded
    that the police behaviour was more towards negligent conduct. In light of that
    finding, he argues that the trial judge erred when she concluded that the
    police conduct was serious,
but not egregious
. [emphasis added.] He
    says that by finding the conduct was not egregious, the trial judge treated the
    negligent conduct as almost a neutral factor in the s. 24(2) analysis. He maintains
    that the finding that the conduct was negligent necessarily made it of such a
    quality that it had to pull toward exclusion.

[48]

It is important to start with what the trial
    judge actually concluded. She found that the police were mistaken in their
    belief that they had reasonable grounds to arrest. While she rejected that the
    police conduct was inadvertent or a minor violation of the accuseds
Charter

rights, she found that on the spectrum, their conduct falls more towards
    negligent conduct, which is higher than blameless conduct (at the lower end),
    and lower than blatant, wilful or reckless conduct (at the higher end). She
    then concluded that, while serious, the conduct was not such that it required
    the court to distance itself from the police behaviour.

[49]

I see no error in that approach. The trial judge
    was cognizant of the fact that not every
Charter

breach is made
    equal. She properly adverted to the spectrum on which the seriousness of
    breaches must be placed. As noted by Doherty J.A. in
R. v. Kitaitchik
,
(2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 41, and adopted many times
    since:

Police conduct can run the gamut from
    blameless conduct, through negligent conduct, to conduct demonstrating a
    blatant disregard for
Charter

rights . What is important is
    the proper placement of the police conduct along that fault line, not the legal
    label attached to the conduct.

[50]

The placement of the police conduct on the
    spectrum requires an exercise of discretion that the trial judge is uniquely
    positioned to undertake from her or his chair in the courtroom. It was open to
    the trial judge to find, as a fact, that the police were merely mistaken
    about whether they had sufficient grounds to arrest and that their conduct was
    worse than blameless but less serious than conduct that shows a wilful or
    reckless or blatant disregard for the
Charter
.
Rather, it
    was negligent conduct.

[51]

It is not for this court to consider these
    matters afresh. They are findings that are owed deference by this court. I
    would show that deference.

[52]

As well, I do not agree with the suggestion that
    all negligent police conduct must push toward exclusion. While negligence
    cannot be equated with good faith (see
Grant
,
at para. 75), neither
    can it necessarily be equated with bad faith. The key determining factor is not
    the name given to the conduct, but the underlying findings about the conduct.

[53]

Negligent police conduct itself may fall on a
    spectrum. Clear violations of well-established rules governing state conduct
    may exist at one end of a negligence spectrum, while less clear violations of
    less clear rules may be at the other.

[54]

Here, the law surrounding the grounds for arrest
    has been clear for some time:
R. v.
Storrey
,
[1990] 1 S.C.R.
    241,

at pp. 250-251. But it is a test that is applied using the best
    judgment of police officers, engaged in real time, on the ground policing.
    There is a difference between a police officer miscalculating whether she had
    sufficient grounds to arrest, when on the trial judges view she only had
    sufficient grounds to detain for investigation, and other more serious forms of
    police miscalculation. As found by the trial judge, there was nothing cavalier
    or flagrant about the police conduct. Nor was there any pattern of
Charter

breaches. In my view, if the police were short on reasonable grounds to
    arrest, it was by a short distance only. The fact is that the trial judge did
    not find that the level of negligence, a simple, unintentional miscalculation
    as to the strength of the grounds to arrest, rose to the level that would
    aggravate the seriousness of the state-infringing conduct. She is owed
    deference on that point.

(v)

Conclusion

[55]

There is no error in the trial judges s. 24(2) analysis.

E.

THE VERDICT WAS REASONABLE

[56]

Once the application to exclude the drugs and
    gun was dismissed, the trial judge turned her mind to what all agreed was the
    real triable issue in the case: whether the appellant knew that the drugs and
    gun were in the vehicle he was driving.

[57]

The appellant contends that the trial judge
    erred in concluding beyond a reasonable doubt that he knew about the presence
    of the guns and drugs. He contends that the convictions represent unreasonable
    verdicts because, in this circumstantial case, guilt was not the only
    reasonable inference that the totality of the evidence supported:
R. v.
    Villaroman
,
2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.

[58]

The question of knowledge depended upon
    circumstantial evidence. Accordingly, the question on an unreasonable verdict
    ground of appeal is 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:
Villaroman
,
at
    para. 55.

[59]

I start by noting that the trial judge set out
    an accurate review of the law. She well understood that this case turned on
    whether the appellant knew about the contraband. She also quoted directly from
Villaroman
,
noting that she had to be satisfied that the accuseds guilt is the only
    reasonable conclusion that she could reach on the totality of the evidence,
    before she could find him guilty. She specifically noted that she was aware
    that not everyone who drives or rides in a car containing concealed objects
    will know of their existence.

[60]

Having regard to the correct legal principles,
    she turned to the evidence and found that certain factors satisfied her beyond
    a reasonable doubt that the appellant knew of the existence of the firearm and
    drugs, including:

a)

the appellant was the driver of the vehicle;

b)

while the ownership and insurance documents were
    in another persons name, those documents were found inside of his pocket,
    inside of a wallet slip that matched his wallet;

c)

there was a bank document also found in his
    possession, that referenced the fact that he owed money for the vehicle.

[61]

In addition, the trial judge concluded that the
    gun and drugs were valuable items that would not have been entrusted to just
    anyone. This was a reasonable, common sense inference available to the trial
    judge:
R. v. DaCosta
,
2017 ONCA 588, at para. 21;
R. v. Pannu
,
2015 ONCA 677,
127 O.R. (3d) 545,
at para 173, leave
    to appeal refd [2015] S.C.C.A. No. 478.

[62]

In these circumstances, 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.

F.

CONCLUSION

[63]

I would dismiss the appeal.

Released: D.W.
    April 8, 2020

Fairburn J.A.

I agree. David Watt J.A.

I agree. B. Zarnett J.A.


