



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Menzies, 2015 ONCA 775

DATE: 20151113

DOCKET: C58533

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Robert Menzies

Appellant

Lance Beechener and Eva Taché-Green, for the appellant

Kathleen Healey, for the respondent

Heard: August 24, 2015

On appeal from the convictions entered on March 12, 2013
    by Justice Robert G. Bigelow of the Ontario Court of Justice.

ENDORSEMENT

[1]

Mr. Menzies appeals his convictions on two counts of possession of a
    controlled substance for the purposes of trafficking and one count of
    possession of property obtained by crime. He argues that the verdicts were
    unreasonable, or in the alternative, that the trial judges reasons for conviction
    on the count of possession of property obtained by crime were insufficient.

[2]

The factual circumstances of the offences are as follows. The appellant
    was arrested during the execution of a search warrant in an apartment in which he
    was not a tenant. Moments prior to police entering the apartment, an officer
    stationed on the ground to observe the apartments balcony saw the appellant
    walk from inside the apartment onto the balcony, bend down, and then re-enter
    the apartment. The officer could not observe what the appellant did when he
    bent down. Nor could the officer see the appellants hands or observe whether the
    appellant was carrying anything when he re-entered the apartment.

[3]

There were four men and one woman in the apartment when the police
    entered. The appellant was arrested as he re-entered the apartment from the
    balcony. He was holding approximately $1,740 in Canadian currency in one hand,
    which formed the subject matter of the count of possession of property obtained
    by crime, and a closed knife in his other hand.

[4]

A search of the area of the balcony where the appellant bent down
    revealed a black burlap bag. Inside the burlap bag were two baggies that contained
    the 26 grams of ketamine and 7.9 grams of methamphetamine which formed the
    subject matter of the two counts of possession of a controlled substance for
    the purposes of trafficking. Two smaller baggies of white substances were also
    found outside of the burlap bag. The substances in the smaller baggies did not
    form the subject matter of any of the charges on which the appellant was tried.

[5]

The trial judge found that the only reasonable inference based on all of
    the evidence was that the appellant had knowledge and control of the substances
    inside the burlap bag. He noted that the case was clearly circumstantial and
    stated that the key issue was whether there was any other reasonable inference
    that he could draw from the facts. In concluding that no other reasonable
    inference was available, the trial judge relied on the following facts: (i) the
    appellant was in the same location as where the drugs were found moments before
    police entered the apartment; (ii) the appellant had an unexplained and
    substantial amount of money in his hand at approximately the same time; and
    (iii) the appellant was in a location where narcotics were being used and
    likely trafficked. On this basis, the trial judge convicted the appellant of
    both counts of possession of a controlled substance for the purposes of trafficking.

[6]

The trial judge also concluded that, although he had some concern
    regarding the proceeds of crime count as the trial was proceeding, he was
    satisfied that the proceeds had to have been the proceeds of the commission of
    an offence. The trial judges reasons for conviction on this count consist of
    only one sentence.

[7]

The appellant submits that the trial judge failed to consider reasonable
    alternative inferences available on the evidence and, therefore, the verdicts
    were unreasonable. In addition, the appellant argues that the trial judge
    failed to provide sufficient reasons with respect to the proceeds of crime
    count.

[8]

A verdict will be unreasonable where it could not reasonably have been
    rendered by a judge or a properly instructed jury:
R. v. P. (R.)
, 2012
    SCC 22, [2012] 1 S.C.R. 746, at para. 9. Given that the evidence relied upon by
    the trial judge to establish the
actus reus
of the offences is
    entirely circumstantial, the issue on appeal is whether the trier-of-fact,
    acting judicially, could be satisfied that the appellants guilt was the only
    reasonable conclusion available on the totality of the evidence:
R. v. T.
    (D.D.)
, 2009 ONCA 918, 257 O.A.C. 258, at para. 13;
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[9]

In considering the reasonableness of the convictions the following facts
    are important. First, the appellant was not the lease-holder of the apartment
    and there was no evidence that he had control over the apartment or the
    balcony. Second, there were illicit drugs located within the apartment which
    the lease-holder acknowledged were his. Third, the possession for the purpose
    of trafficking counts related only to the two baggies, containing ketamine and
    methamphetamine, which were contained in the burlap bag on the balcony, and not
    the two smaller baggies found outside of the burlap bag. Fourth, there was no
    other evidence linking the appellant to the burlap bag.

[10]

In
    our view, the inference drawn by the trial judge regarding the drugs in the
    burlap bag was not the only reasonable inference available. The evidence of the
    police officer observing the balcony was equally consistent with the appellants
    exiting the apartment to discard the two smaller baggies of white powder. It is
    not fanciful or speculative, as the Crown suggests, to infer on the totality of
    the evidence that the appellant had no possession or control over the drugs in
    the burlap bag and that his intention was to rid himself of the substances in
    the small baggies before the police entered the apartment.

[11]

We
    conclude, therefore, that the verdicts on the two counts of possession for the
    purposes of trafficking were unreasonable because the inference drawn by the trial
    judge was not the only reasonable inference available on the totality of the
    evidence.

[12]

With
    respect to the conviction for possession of the proceeds of crime under $5,000,
    while the reasons of the trial judge are obviously brief, when they are
    considered in the context of the record they do not preclude meaningful
    appellate review. We are also not satisfied that the conviction is
    unreasonable. The appellant was found in an apartment that contained large
    quantities of narcotics that were likely being trafficked. He had in his
    possession a knife along with the cash. Unlike the possession for the purposes
    of trafficking counts, there is no other reasonable explanation for his
    possession of the cash which arises from the evidence. We note the appellant
    did not testify and thus offered no alternative explanation for his possession
    of the cash. In these circumstances, we are not persuaded that the verdict was
    unreasonable.

[13]

In
    the result, the convictions for possession for the purpose of trafficking are
    set aside and acquittals on those counts are entered. The appeal is otherwise
    dismissed.

John Laskin J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


