



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biya, 2021 ONCA 171

DATE: 20210319

DOCKET: C66597

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abadula Biya

Appellant

Najma Jamaldin, for the appellant

Jeremy D. Tatum, for the respondent

Heard: March 3, 2021 by video
    conference

On appeal from the conviction entered on
    August 8, 2018 and the sentence imposed on December 14, 2018, with reasons
    reported at 2018 ONSC 6887, by Justice Carole J. Brown of the Superior Court of
    Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant, Abadula Biya, appeals his
    conviction and sentence for charges relating to the
unauthorized
    possession of a firearm and ammunition, possession of a Schedule I controlled substance
    (MDEA) for the purpose of trafficking, and possession of the proceeds of crime in
    the amount of $1,725
.

[2]

The appellants main argument on the conviction
    appeal is that the trial judge materially misapprehended the evidence in
    rejecting the appellants third party suspect defence. The appellant claims this
    error leaves the trial judges reasoning on which the conviction depends on unsteady
    ground, resulting in a miscarriage of justice.

[3]

We agree with the appellant. For the reasons that
    follow, we allow the appeal, quash the conviction, and order a new trial.

Background

[4]

On September 11, 2015, the police received a tip
    that a person was selling drugs outside a Drake concert at Ryerson University.
    The person was described as a black male with cornrows, wearing a black
    t-shirt, and carrying a bouquet of flowers and a red and black GoodLife gym bag.

[5]

Police officers located a person matching this
    description talking to two other men at a gas station. The police watched the three
    men and noticed that when a mounted police unit approached the area the men
    slinked back into the gas station. When a second mounted police unit approached,
    the men retreated further and entered a Honda SUV parked at the gas station.
    The appellant had the gym bag and bouquet with him when he entered the drivers
    seat of the Honda. The officers did not see who had control of the gym bag
    after the three men entered the Honda.

[6]

A group of uniformed police officers and two
    plainclothes officers huddled for between one to two minutes about 30 metres
    from the Honda. The men inside the Honda could see the officers. The police
    believed the men inside the Honda noticed the officers approaching when they
    were 5 to 10 metres away. The officers could see the appellant, who was in the drivers
    seat, and Simeon George-McCool, who was in the front passenger seat. They could
    not see Jevon Moore, who was in the back seat directly behind George-McCool.
    The appellants gym bag and flowers were also in the back seat directly behind the
    appellant.

[7]

Six uniformed officers rode their bicycles towards
    the Honda. This took about 30 to 40 seconds. As the police approached they saw
    the appellant appear nervous and wide-eyed. He shoved his hand between the door
    and the seat and then into the pockets of his pants. An officer also saw
    George-McCool in the front passenger seat appearing to move quickly and looking
    towards the back seat. But the officers could not see Moore in the back seat.

[8]

Two officers approached on the drivers side and
    smelled marijuana. Based on that smell and the appellants apparent nervousness,
    the occupants were arrested and directed to get out of the car. Moore and
    George-McCool got out voluntarily and complied with the police. The appellant
    did not comply and was forcibly removed. He resisted arrest but was quickly subdued.

[9]

The police searched the three men incident to
    arrest. On George-McCool the police found cocaine, marijuana, and MDMA in the bag
    he was carrying as he got out of the car, three cellphones, and $1,070 in cash.
    On Moore the police found $1,080 in cash but no drugs or drug packaging. On the
    appellant the police found packaged marijuana and $1,725 in cash. In the
    drivers seat area the police found a cellphone and a digital scale.

[10]

The police searched the gym bag incident to
    arrest and at the bottom of the bag found a handgun, ammunition, a bottle of MDEA
    pills, and packaging like that used in the packaged marijuana found on the
    appellant. They also found some of the appellants personal items, including two
    condolence cards (the appellant was going to a funeral visitation for a
    friends mother later that night).

[11]

All three men were charged with various offences.
    The charges against Moore were later withdrawn before trial.

The Trial Judges Decision

[12]

The appellant and George-McCool were tried
    together.

[13]

The trial judge convicted George-McCool of possession
    of cocaine and MDMA for the purpose of trafficking. The trial judge inferred
    from the quantities of drugs he had in his bag as he got out of the car that
    the drugs were in his possession for the purpose of trafficking rather than
    personal use. George-McCool did not appeal his conviction.

[14]

Neither the appellant nor Moore testified. The appellant
    did not dispute he had knowledge and control of the marijuana found on his
    person, but he did dispute any knowledge of or control over the gun, magazine,
    and pills in the gym bag. His defence centred on Moore as a third party suspect.
    He posited that Moore had one to two minutes in the back seat to place the contraband
    in the bag while the officers huddled across the street and then approached the
    car in plain view of the three suspects. He claimed that Moore had on his
    person a quantity of cash consistent with drug trafficking but no contraband
    because he had stashed it in the gym bag. The appellant also adduced Moores
    criminal record for gun and drug trafficking offences to show his propensity as
    a third party suspect.

[15]

The trial judge rejected the appellants third
    party suspect defence and convicted the appellant. She found that Moore did not
    have the time to remove the magazine from the handgun and to stow the handgun,
    magazine, and bottle of pills at the bottom of the bag. She also found that
    Moore did not have the opportunity and propensity to have had the firearm, ammunition,
    and pills on his person and to have put them surreptitiously in the gym bag as the
    police approached. She found there was no real evidence for this proposition, which
    she found was speculative. Finally, the trial judge found overwhelming evidence
    that the appellant had knowledge of and control over the contraband in the gym
    bag. She noted that the packaging in the bag resembled the packaging of the marijuana
    found on the appellant; the condolence cards were for a visitation the appellant
    was to attend that evening; the appellant had been seen carrying the gym bag; drugs
    such as MDEA are often sold at concerts, where the appellant was arrested; and
    the cash found on the appellant was in smaller denominations.

[16]

The trial judge sentenced the appellant to four
    years incarceration, less credit for pre-trial custody and bail conditions,
    and various ancillary orders.

[17]

The appellant now appeals his conviction and seeks
    leave to appeal his sentence.

Discussion

[18]

Although the appellant advances several grounds
    of appeal from conviction and sentence, we have concluded that the appeal should
    be allowed because the trial judge materially misapprehended the evidence in
    concluding that Moore lacked enough time to remove the magazine from the gun
    and place it in the gym bag. The trial judge then repeated this error in
    concluding that Moore did not have the propensity and opportunity to have
    placed the contraband in the bag. These errors led the trial judge to conclude erroneously
    there were no reasonable possibilities inconsistent with the appellants guilt:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37.

[19]

The uncontradicted evidence was that the police
    huddled for one to two minutes and then took another 30 to 40 seconds to bike
    to the car, all while in plain view of the cars occupants. The elapsed time
    was therefore between
1 minute 30 seconds and 2 minutes
    40 seconds, during which the police could not see Moore because he was in the
    back seat.

[20]

The trial judge explained her reasons for concluding
    that Moore did not have enough time to stow the contraband in the gym bag as
    follows:

I am not satisfied that it would have been possible
    within the timeframe from the police approaching the vehicle to Mr. Moore and
    Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken all the
    items from his person and put them in the bag, and
particularly taking the
    magazine out of the handgun
and stowing the handgun, ammunition, and drugs
    at the bottom of the bag under
all of
the
    other contents. I do not find this
to be
feasible
    and reject this argument. [Emphasis added.]

[21]

However, there was no evidence before the trial
    judge as to how long it would have taken to remove a magazine from a gun, or
    this magazine from this gun. There was also no evidence that the magazine was
    even in the gun and needed to be removed. The trial judge therefore
    misapprehended the evidence on this point.

[22]

The Crown concedes that the trial judge
    misapprehended the evidence but contends the misapprehension was not material.
    The Crown asserts that even if this finding is excised, the other evidence the
    trial judge relied on allowed her to conclude that Moore had insufficient time
    to put the contraband in the gym bag.

[23]

We do not accept this submission. The trial
    judge herself highlighted that her conclusion was based particularly on the
    lack of time to remove the magazine from the gun. Her own wording suggests this
    error about the substance of the evidence was material to her reasoning in
    rejecting the third party suspect defence. Striking this error in the
    assessment of the evidence from the judgment leaves the trial judges reasoning
    on which the conviction depends on unsteady ground, leading to a miscarriage of
    justice: see
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras.
    1-2;
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; and
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541.

[24]

The trial judge repeated this error in concluding
    that Moore did not have the opportunity and propensity to have surreptitiously placed
    the contraband in the bag as the police huddled and approached the car. She
    stated:

It is the position of [counsel] on behalf of
    [the appellant] that the police had huddled with [one of the other police officers]
    for one to two minutes before they approached the car, and that the lapse of
    time was sufficient for Mr. Moore to have taken the seized items from his
    person and put them into the gym bag in the back seat behind the drivers seat.
As set forth above,
I do not accept the
    arguments of counsel for [the appellant], which suggests that Mr. Moore had the
    opportunity and propensity to have had the firearm, ammunition, and drugs on
    his person and put them surreptitiously into the gym bag when the police
    approached the vehicle. There is no real evidence for this, and I find the
    proposition to be speculative. I reject the submission
. [Emphasis added.]

[25]

The trial judge did not separately address
    Moores opportunity and propensity. She seems to have rejected the appellants third
    party suspect defence only because she found that Moore lacked opportunity.

[26]

However, Moores criminal record provided a
    reasonable basis to claim he had the propensity to have placed the contraband
    in the gym bag: see
R. v. Arcangioli
, [1994] 1 S.C.R. 129, at p. 141;
R.
    v. Tomlinson
, 2014 ONCA 158, 207 C.C.C. (3d) 36, at para. 76. His criminal
    record included several recent firearms and drug-related convictions: for robbery
    with a firearm in 2012; possession of a Schedule I substance in 2014; possession
    of an unauthorized firearm, breach of a firearm prohibition order, and possession
    of a Schedule I substance in June 2014; possession of an unauthorized firearm
    and breach of a firearm prohibition order in July 2014; and trafficking in a
    Schedule I substance in 2015. The trial judge thus erred in summarily rejecting
    the third party suspect defence.

Conclusion

[27]

The trial judge erred by convicting the appellant
    based on a material misapprehension of the evidence about Moores opportunity
    as a third party suspect. There was also evidence that Moore had the propensity
    as a third party suspect, which the trial judge failed to address. The trial
    judges errors leave the conviction on unsteady ground and resulted in a
    miscarriage of justice.

[28]

Because there was evidence on which a properly
    instructed trier of fact could reasonably have convicted the appellant, the appropriate
    remedy is to order a new trial on all counts under s. 686(2)(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46: see
Morrissey
, at p. 540. There is no
    need to address the appellants request for leave to appeal the sentence.

Disposition

[29]

The appeal from conviction is allowed, the appellants
    conviction is quashed, and a new trial is ordered on all counts.

David
    Watt J.A.

M.L.
    Benotto J.A.

M.
    Jamal J.A.


