



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Choudhury, 2021 ONCA 560

DATE: 20210806

DOCKET: C67957

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Forhad Ahmed Choudhury

Appellant

Ian B. Kasper, for the appellant

Colleen Liggett, for the respondent

Heard: March 3, 2021 by video conference

On appeal from the conviction entered on
    October 16, 2019 by Justice Heather J. Williams of the Superior Court of
    Justice, and from the sentence imposed on February 21, 2020.

Jamal J.A.:

Introduction

[1]

The appellant, Forhad Ahmed Choudhury, was
    charged with 15 counts of offences relating to drug trafficking, drug possession
    for the purpose of trafficking, and possession of a firearm. The charges arose
    from events in July 2015: (1) an undercover drug buy for cocaine involving the
    appellant and an undercover police officer; (2) crack cocaine found in the
    appellants groin area during a strip search upon arrest; and (3) drugs, a
    loaded gun, ammunition, and cash found in the room of a house that the
    appellant had recently been seen entering and leaving. The appellant was
    convicted of 12 of the counts and sentenced to 3
½
years in custody, less credit for pre-sentence custody and strict
    bail conditions, for a net sentence of 2
½
years. He now appeals against his convictions and seeks leave to
    appeal his sentence.

[2]

The Crown concedes that the conviction for trafficking
    cocaine arising from the undercover drug buy (count 1) should be quashed and an
    acquittal entered. The Crown also concedes that the conviction for possession
    of crack cocaine for the purpose of trafficking arising from the arrest seizure
    (count 3) should be set aside and substituted with a conviction for the
    included offence of simple possession of crack cocaine. As explained below, I
    would accept these Crown concessions.

[3]

The only disputed issue on appeal involves the
    convictions for the drug and firearms offences relating to the contraband found
    in the room of a house in Ottawa, to which the appellant had access (
counts 4 to 7 and 9 to 14
). For the reasons that follow,
    I conclude that the trial judge erred in law by conflating the appellants access
    to the room with his constructive possession of the contraband. I would allow
    the appeal and order a new trial on those counts.

Background

[4]

Based on information from a confidential informant,
    police went to a house in Ottawa on July 3, 2015 to make an undercover drug
    buy. The appellant came out of the house, spoke to an undercover officer, went
    behind the house with her, returned, and entered the house without a key. The undercover
    officer, who had gone behind the house with appellant to allegedly buy the
    drugs, then gave a small package of 1.5 grams of cocaine to another undercover
    officer at the scene.

[5]

Three days later, the police saw the appellant
    enter the house using a key.

[6]

The next day, the police arrested the appellant at
    the house as he was leaving in a blue Mercedes. The police seized cash,
    cellphones, and a keychain of keys from the cars ignition. The police then executed
    a search warrant at the house. One of the rooms, Room #4, was locked. The
    police breached the lock and entered. They found cash, drugs, scales, cell
    phones, a revolver BB gun, CO2 cartridges, and BB pellets. They also found an
    unlocked plastic Sentry-brand lockbox containing a loaded handgun and loose
    ammunition. The room was filthy and contained male clothing.

[7]

One officer testified that he found the
    appellants OHIP card in the room on a chair, as well as digital scales and
    U.S. currency. The officer made no note of the OHIP card and it was not
    included in the exhibit list. He testified that he took the OHIP card to
    photocopy it and planned to return it to the appellant, as the usual practice
    was to return originals of government I.D. to the owner.

[8]

Two of the keys on the keychain seized from the
    appellants car operated the lockbox found in Room #4. A woman, who was the
    sole tenant listed on the houses lease, was in the house during the search.
    Police also searched another room, believed to be hers, which contained female
    clothing, needles, and crack pipes, but was otherwise clean.

[9]

During an authorized strip search of the
    appellant at the police station, the police found crack cocaine in his groin
    area. At the start of trial, the Crown filed a defence admission made under s.
    655 of the
Criminal Code
, R.S.C. 1985, c. C-46, to dispense with the
    need for proof, that the quantity of crack cocaine seized from the appellants
    groin area was 8.1 grams. However, the arresting officer then testified that the
    police had seized only 2.5 grams. Despite this evidence, the trial judge allowed
    the Crown to rely on the appellants admission and convicted him of possession
    of 8.1 grams of crack cocaine for the purpose of trafficking, based partly on
    evidence that even a heavy crack user would typically have only up to 3.5 grams
    in their possession for personal use.

[10]

The trial judge placed no weight on the OHIP
    card because it was not included in the exhibit list or mentioned in the
    officers notes. She found that [r]outine steps should have been taken to
    satisfy the court that the OHIP card was found where the police said it was found
    and that safeguards  should have been in place to satisfy the court as to
    its reliability.

[11]

Despite placing no weight on the OHIP card, the trial
    judge found a strong connection between the appellant and Room #4. She found the
    appellant in constructive possession of the items in the room based on the
    following evidence:

1.

The appellant was seen leaving the house on July
    3, 2015 to meet the undercover officer and walking back towards and entering the
    house after meeting her;

2.

On July 6, 2015, the appellant
    was seen entering the house using a key;

3.

On July 7, 2015, the
    day of his arrest, the appellant was seen leaving the house. He was stopped by
    police and crack cocaine and cash were seized from him;

4.

Crack cocaine was not found
    anywhere in the house other than Room #4; and

5.

A Sentry-brand lockbox was
    found in Room #4. Two keys from the keychain taken from the ignition of the
    appellants car had Sentry 009 written on them and locked and unlocked the lockbox.

[12]

The trial judge held that the Crown had proven
    beyond reasonable doubt that the appellant had access to [the house] and also
    access to Room #4. She also ruled that the appellant had knowledge of the
    drugs and other items in Room #4, and that he knowingly kept them in the room and
    intended to have them for his use or benefit.

[13]

The appellant was convicted of: (1) one count of
    trafficking cocaine, arising from the undercover drug buy (count 1); (2) one
    count of possession of crack cocaine for the purpose of trafficking, arising
    from a search of his person on arrest (count 3); and (3) 10 counts of
    possession of various drugs for the purpose of trafficking, possession of $4,850
    knowing that it was obtained by trafficking in a controlled substance, and
    various firearms offences, all arising from the search and seizure from Room #4
    (counts 4 to 7 and 9 to 14).

Issues on Appeal

[14]

The appellant raises three grounds of appeal
    from his convictions:

1.

With respect to the undercover drug buy, the trial judge erred in
    convicting the appellant of trafficking cocaine, when the undercover officer
    who allegedly bought the cocaine from him did not testify;

2.

With respect to the conviction for possession of crack cocaine for
    the purpose of trafficking, the trial judge erred in convicting the appellant
    based on his s. 655 admission that he had 8.1 grams on his person, when the
    arresting officer testified that the amount was only 2.5 grams; and

3.

The trial judge erred in finding the appellant in constructive
    possession of the contraband in Room #4, when the evidence only showed that he
    had access to the room. The trial judge conflated access to the room with
    constructive possession of the contraband.

Discussion

[15]

With respect to the first issue  the undercover
    drug buy (count 1)  the trial judge found a reasonable and non-speculative
    inference that the appellant sold cocaine to the undercover officer. Before
    this court, however, the Crown now concedes that there was insufficient evidence
    to support a conviction on this count because the undercover officer did not testify
    and no other witness saw the transaction. The Crown thus accepts that this
    count must be quashed and an acquittal entered. I would accept this concession,
    quash the conviction for trafficking cocaine, and enter an acquittal on this
    count.

[16]

With respect to the second issue  the seizure
    of drugs from the appellants person on arrest (count 3)  the Crown concedes
    that it was unfair for the Crown to rely on the s. 655 admission at trial about
    the quantity of drugs seized from him (8.1 grams), when the Crown led contrary
    evidence (2.5 grams). The Crown also concedes that the expert evidence was
    equivocal on whether only 2.5 grams of crack cocaine would be possessed for the
    purpose of trafficking. The Crown therefore proposes that this court substitute
    a conviction of the included offence of simple possession of 2.5 grams of crack
    cocaine. The appellant agrees with this position. As for the sentence for this
    count, the Crown proposes 30 days, while the appellant submits that a sentence
    of 5 days would be appropriate, reduced to time served in light of credit for
    pre-sentence custody.

[17]

I agree with the Crowns position and would substitute
    a conviction of simple possession of 2.5 grams of crack cocaine. Regarding sentence,
    I again agree with the Crown that a 30-day sentence is appropriate, before
    taking into account the appellants pre-sentence custody. The appellant spent 49
    days in pre-sentence custody, which the trial judge credited at about 1.5 to 1.
    I would give the appellant the same rate of credit for 19 of those days, resulting
    in credit of about 29 days. Considering this credit, I would sentence the appellant
    to time served, plus one day, which shall be the day that the appellant
    surrendered into custody before the release of these reasons.

[18]

The only significant dispute concerns the third
    issue  whether the appellant had constructive possession of the drugs, cash,
    and firearm found in Room #4 (counts 4 to 7 and 9 to 14). The appellant asserts
    that the trial judge erred in finding his access to Room #4 determinative of his
    constructive possession of the contraband.

[19]

The relevant legal principles on constructive
    possession are not in dispute:

·

Constructive possession is established when an
    accused does not have physical custody of an object but knowingly has it in the
    actual possession or custody of another person or has it in any place for their
    own or anothers use or benefit:
Criminal Code
, s. 4(3)(a);
R. v.
    Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and
R. v.
    Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.

·

Knowledge and control are essential elements of
    constructive possession, which is established when the Crown proves beyond a
    reasonable doubt that the accused: (i) has knowledge of the character of the object
    said to be possessed; (ii) knowingly puts or keeps the object in a particular
    place, whether or not the place belongs to or is occupied by the accused; and
    (iii) intends to have the object in the place for the use or benefit of the
    accused or another person:
Morelli
, at paras. 15, 17;
Lights
,
    at paras. 44, 47.

·

Tenancy or occupancy of a place where an object is
    found does not create a presumption of possession:
Lights
, at para. 50;
R. v. Watson
, 2011 ONCA 437, at para. 13;
R. v. Lincoln
, 2012
    ONCA 542, at paras. 2-3; and
R. v. Bertucci
(2002),169 C.C.C. (3d) 453
    (Ont. C.A.), at para. 18.

·

When the Crown relies largely or wholly on
    circumstantial evidence to establish constructive possession,
a conviction can be sustained only if the accuseds
    knowledge and control of the impugned objects is the only reasonable inference
    on the facts. The trier of fact must determine whether any other proposed way
    of looking at the case as a whole is reasonable enough to raise a doubt about
    the accuseds guilt, when assessed logically and in light of human experience
    and common sense: see
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, at paras. 55-56;
Lights
, at para. 39; and
R. v.
    Stennett
, 2021 ONCA 258, at paras. 60-61.

[20]

The appellant says that the trial judge correctly
    stated the test for constructive possession but failed to apply it. He says the
    trial judge only found beyond a reasonable doubt that the appellant had access
    or a connection to Room #4, which could not establish constructive possession
    of the contraband, and that she did not find he had exclusive access to the
    room. The appellant says the trial judge failed to analyze whether he had any
    knowledge of, or control over, the contraband. He says the trial judges
    finding of access or connection to a place do not, on their own, establish
    the knowledge or control needed for constructive possession.

[21]

The Crown responds that although the trial judges
    reasons referred to the appellants access and connection to Room #4, her
    reasons as a whole show that she correctly applied the concept of knowledge and
    control. The Crown says the trial judge treated the location and accessibility
    of the contraband as a part of the factual matrix in ruling that control was
    established. The Crown also notes that exclusive access to a location is not needed
    to establish constructive possession of objects found there.

[22]

I agree that the Crown did not need to show the
    appellant had exclusive access to Room #4 to establish his constructive
    possession of objects found there. Section 4(3)(a)(i) of the
Criminal Code
provides that a person may be in possession of an object even if it is knowingly
    in the actual possession or custody of another person, which confirms that
    exclusive access to the object is not required: see also Morris Manning &
    Peter Sankoff,
Manning
,
Mewett & Sankoff  Criminal Law
,
    5th ed. (Toronto: LexisNexis Canada, 2015), at p. 1377 (section 4(3)
    attributes possession to the person who knowingly has anything in the actual
    possession or custody of another person).

[23]

I do, however, agree with the appellant that the
    trial judge conflated the appellants access and connection to Room #4 with
    his constructive possession of the contraband. The trial judge referred to five
    items of evidence supporting her conclusion that the appellant had access to
    Room #4, and then concluded, without further discussion or analysis, that he had
    constructive possession of the contraband:

I find that the Crown has proven, beyond a
    reasonable doubt, that [the appellant] had
access to [the
    house] and also access to Room #4
: the keys on his key chain that opened
    the lock box in Room #4 provide
a direct and undeniable
    connection between [the appellant] and the interior of that room
.

For these reasons,
I
    have concluded that [the appellant] had access to Room #4
and that he:

(a)
Had knowledge of the drugs and other items that were kept in Room
    #4;

(b)
Knowingly kept the drugs and other items in that location; and

(c)
Intended to have the drugs and other items in Room #4 for his use or
    benefit. [Emphasis added.]

[24]

Later in her reasons, the trial judge again
    referred to her finding of the appellants access to Room #4 as the basis for
    finding him in constructive possession of the gun found in the unlocked lockbox:

I have already found
    that [the appellant] did have access to Room #4
and that he was in constructive possession and therefore in possession of all of
    the drugs and items in the room. This finding includes the .22 calibre handgun.
    [Emphasis added.]

[25]

In my view, these passages strongly suggest that
    the trial judge conflated mere access to the contraband with constructive
    possession.

[26]

The trial judge also failed to explain why the
    circumstantial evidence she referred to established that the appellants knowledge
    and control of the contraband was the only reasonable inference on the facts:

·

The trial judge referred to the appellant being
    seen entering and leaving the house, but the house also had a female tenant 
    the only tenant listed on the lease  who was in the house during the search and
    seizure. Police found needles and crack pipes in what they believed was her
    room. The trial judge did not explain why, given this evidence, the only
    reasonable inference was that the appellant had knowledge and control of the
    contraband.

·

Although, as the trial judge noted, no cocaine
    was found in the house other than in Room #4, needles and crack pipes were
    found in what looked like the womans room.

·

The strongest evidence linking the appellant and
    the contraband were the keys on the keychain taken from the
appellants car, which opened the lockbox
    found in Room #4. The trial judge mentioned this evidence, but failed to
    address its weaknesses. The lockbox was already open when the police searched
    the room. Although the keys arguably showed that the appellant had access to
    the lockbox, they did not necessarily establish his knowledge or control of the
    items in it, because the box was open. Others could have put those items there.
    The appellant did not control the lockbox and its contents by locking it. Nor
    was there any direct evidence that the appellant had ever been in Room #4. The
    police did not test whether any of the keys on the appellants keychain opened
    the door to Room #4.

[27]

The trial judge thus failed to address the
    circumstantial nature of the evidence. Although I accept that the evidence allowed
    her to infer that the appellant had access to Room #4, she did not explain why
    the only reasonable inference was that he had knowledge and control of the
    contraband.

[28]

I therefore conclude that the trial judge erred
    by conflating the appellants access to Room #4 with constructive possession of
    the contraband. I would allow the conviction appeal on counts 4 to 7 and 9 to
    14, quash the convictions, and direct a new trial on those counts.

Disposition

[29]

I would: (1) allow the appeal on the conviction
    on count 1, quash that conviction, enter an acquittal, and quash the six-month
    concurrent sentence attaching to that conviction; (2) dismiss the appeal on the
    conviction on count 3, substitute a conviction for the included offence of
    simple possession, and given the appellants pre-sentence custody, substitute a
    sentence of time served, plus one day, which shall be the day the appellant
    surrendered into custody pending the release of these reasons; and (3) allow
    the appeal on the convictions on counts 4 to 7 and 9 to 14 and direct a new
    trial on those counts. The ancillary orders imposed by the trial judge would
    fall with the convictions that I would set aside.

Released: August 6, 2021 D.W.

M.
    Jamal J.A.

I
    agree. David Watt J.A.

I
    agree. M.L. Benotto J.A.


