



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Glasner, 2022 ONCA 65

DATE: 20220127

DOCKET: C68891

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salim Richard Glasner

Appellant

Tony Paciocco, for the appellant

Allyson Ratsoy, for the respondent

Heard: January 20, 2022 by
    video conference

On appeal from the convictions entered
    on May 30, 2019 and the sentence imposed on December 4, 2019 by Justice Hugh R.
    McLean of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of a two day trial in Ottawa
    in May 2019, the trial judge found the appellant guilty of six drug related
    charges in an eight count indictment  possession for the purpose of
    trafficking (heroin and fentanyl); possession for the purpose of trafficking
    (oxycodone); possession for the purpose of trafficking (carfentanil); two
    counts of possession of proceeds under $5,000; and breach of recognizance for
    failure to keep the peace and be of good behaviour. The appellant received a
    global sentence of seven years for these offences. The appellant appeals from
    the convictions.

[2]

The Ottawa Police Service Drug Unit started
    surveillance at an Ottawa dwelling in July and August 2017. During
    surveillance, police observed some activity that was consistent with drug
    transactions, including short duration visits at the dwelling. They
    specifically observed the appellant outside but near the house engaging in
    transactions consistent with drug trafficking.

[3]

On August 23, 2017, the police executed a
    warrant at the dwelling and found four adults inside. The police testified that
    the appellant and Tara Dawache were in the northeast bedroom, the appellants
    uncle Richard Glasner was in another bedroom, and Daniel Sevigny was downstairs.

[4]

In the northeast bedroom, the police found quantities
    of heroin, fentanyl and carfentanil. Also in the room was an envelope addressed
    to the appellant at that address from a government institution. The police
    testified that both male and female clothing and shoes were found in this room.

[5]

In the same bedroom, the police testified that
    they also found a pink backpack containing drugs. They also found baggies,
    $1,610 and Ms. Dawaches identification.

[6]

Downstairs, the police found heroin, fentanyl,
    buprenorphine and four scales (two operable). The police testified that they
    also found US $141.

[7]

The trial judge convicted the appellant on six
    counts in the eight count indictment. He acquitted him of breach of recognizance
    for possession of drug paraphernalia and one count of possession of
    buprenorphine for the purpose of trafficking because Mr. Sevigny had a licence
    to obtain the drug, he was present in the house, and the drug was found near
    him.

[8]

The trial judge delivered brief oral reasons
    almost immediately after hearing counsels closing submissions.

[9]

The appellant appeals his convictions on two
    bases.

[10]

First, the appellant contends that the trial
    judge erred by failing to provide sufficient reasons to permit meaningful
    appellate review.

[11]

This is, as it should be, a difficult ground for
    an appellant to establish. The test for establishing it was articulated by
    McLachlin C.J. in
R. v. R.E.M.
, 2008 SCC 51, at para. 55:

The appellate court,
    proceeding with deference, must ask itself whether the reasons, considered with
    the evidentiary record, the submissions of counsel and the live issues at the
    trial, reveal the basis for the verdict reached. It must look at the reasons in
    their entire context. It must ask itself whether, viewed thus, the trial judge
    appears to have seized the substance of the critical issues on the trial.

[12]

After engaging in the process mandated by the
    Chief Justice, we cannot say that the trial judges reasons in this case are
    insufficient. The reasons are brief (five pages) but that alone cannot be a
    subject of criticism. This was a short trial (about one and a half days of
    testimony) with five Crown police witnesses and no evidence called by the
    defence. And, more importantly in our view, the trial judge appears to have
    seized the substance of the critical issues on the trial as instructed by the
    Supreme Court in
R.E.M
.

[13]

The evidence was overwhelming that drug
    transactions were taking place inside and very near the dwelling. The drugs and
    drug equipment inside the house and the police observations of activity inside
    and near the house confirm this.

[14]

As well, the evidence supported the conclusion
    that it was the appellant who was engaged in the drug activities taking place
    inside and outside the house. It was not contested that the appellant lived in
    the house and police testified they found mens clothing and shoes in the
    bedroom. Police found an envelope addressed to the appellant at the dwelling
    and they testified that a bag of drugs was found directly on top of the envelope.
    Over several days of surveillance, numerous people attended the residence for
    short visits which a police expert testified were consistent with drug
    trafficking. And outside but near the house, the police saw the appellant
    engaging in transactions consistent with drug trafficking.

[15]

Second, the appellant submits that the trial
    judge erred by failing to properly apply the law of possession for possession-based
    offences. He says that for all forms of possession (personal, constructive,
    joint), it is necessary to prove beyond a reasonable doubt both knowledge of
    the presence of the property in question and at least some measure of control
    over it: see
R. v. Morelli
, 2010 SCC 8, at para. 15.

[16]

The appellant asserts that the trial judge was
    silent on the control component of the test. He says that the trial judge spoke
    in terms of necessary indicia of possession of the drugs but never uses the
    word control or provides reasons that suggest he is grappling with this
    component of the test for possession. Given that there appeared to be several
    (as many as four) occupants of the house, the appellant argues that this
    omission amounts to an error of law.

[17]

We do not accept this submission. The police
    surveillance evidence established that the appellant was engaged in what looked
    like drug transactions outside but near the house and that he was present
    inside the house when people would come to it, enter, and leave soon after with
    what appeared to be a clenched fist consistent with a drug purchase. Moreover,
    drugs were found in a bedroom, with the appellant present in it, with mens
    clothing and shoes and an envelope with his name on it. As well, downstairs the
    police found a card with the appellants name and date of birth written on it.

[18]

Given all this evidence, it is obvious that the
    appellant both possessed and controlled the drugs. It is true that the other
    occupants of the house, especially Tara Dawache, might also have possessed the
    drugs. Possession might have been joint, for at least some of the drugs.
    However, joint possession is inclusionary, not exclusionary, because two or
    more people can have knowledge and control over the property in question.

[19]

In summary, the trial judges reasons, albeit
    brief, adequately address the two central issues at the trial  was unlawful
    drug activity taking place at the dwelling and was the appellant involved in
    that activity.

[20]

With respect to count two in the indictment, the
    Crown concedes that the appeal should be allowed. There was no evidence that
    the appellant had knowledge and control of the oxycodone pills found in the
    pink backpack in the bedroom. The backpack contained Ms. Dawaches identification
    and the surveillance did not establish that the appellant had ever been seen
    carrying it.

[21]

The appeal is allowed with respect to count two
    in the indictment and the conviction is set aside. On all the other counts, the
    appeal is dismissed. Although the notice of appeal with respect to sentence was
    filed, the appellant made no submissions on sentence. Accordingly, we would
    dismiss the sentence appeal.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.


