



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khan, 2019 ONCA 81

DATE: 20190205

DOCKET: C64680

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jalal Khan

Appellant

Andrew Furgiuele, for the appellant

Geoffrey Roy, for the respondent

Heard and released orally: February 1, 2019

On appeal from the conviction entered on July 31, 2017 by Justice Bruce J. Frazer of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for possession of cocaine for the
    purpose of trafficking. The appellant was found by the police in the back seat
    of a car with a dime bag (0.55 grams) of crack cocaine in his wallet. He does
    not contest his conviction for possession of that drug.

[2]

He was in the car with two other men in the front, who were also
    convicted of possession for the purpose of trafficking in relation to a large
    plastic sandwich bag hanging out of the kangaroo pouch on the back of the front
    passenger seat of the car. That bag contained 14.78 grams of bulk crack
    cocaine, 14.12 grams of bulk powder cocaine and 7 small baggies containing
    small amounts of crack cocaine, and was hanging in close proximity to the
    appellant.

[3]

The issue in respect to the appellant was whether the Crown had proved
    beyond a reasonable doubt that he was jointly in possession with the other two
    of the large bag of cocaine. The Crown expert gave evidence that it was
    possible that the appellant bought the small baggie from someone in the car and
    got caught by the police before he got out of the car.

[4]

In our view, not only was that possible, but it was likely, given that
    the appellants brother was present at the scene in his own car. It was
    certainly a reasonable possibility.

[5]

In our view, the trial judge erred in law by failing to apply the
    Supreme Court of Canadas decision in
R. v. Villaroman
, 2016 SCC 33,
    at para. 37, where the court stated:

When assessing circumstantial
    evidence the trier of fact should consider other plausible theories and other
    reasonable possibilities which are inconsistent with guilt.

[6]

The trial judge failed to consider whether the Crown had negatived the
    reasonable possibility that the appellant was merely a purchaser of cocaine and
    not one of the drug traffickers.

[7]

On the record as a whole, we agree with counsel for the appellant that
    there is nothing in the evidence to negative that reasonable possibility in
    order to be satisfied of guilt beyond a reasonable doubt.

[8]

As a result, the verdict is an unreasonable one and must be set aside.
    The appeal is allowed and an acquittal will be entered.

K.
    Feldman J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


