COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Ul-Rashid, 2013 ONCA 782

DATE: 20131220

DOCKET: M42640

Weiler J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Haroon-Ul-Rashid

Applicant (Appellant)

Haroon-Ul-Rashid, in person

Mary Paterson,
amicus curiae
for the applicant

Amanda Ross, for the respondent

Heard: August 28, 2013

On appeal from the order of Justice Eric (Rick) N. Libman of the
    Ontario Court of Justice, dated May 29, 2013, dismissing the appeal from the
    acquittal entered by Her Worship Justice of the Peace Karin Dresher, dated March
    7, 2012.

A.

Introduction

[1]

The applicant, a taxi driver who was self-represented at his trial
    before a justice of the peace, was found guilty of failing to stop at a red
    light contrary to s. 144(18) of the
Highway Traffic Act
, R.S.O. 1990,
    c. H.8 (
HTA
) and fined $350. He appealed both his conviction and
    sentence to the Ontario Court of Justice and his appeal was dismissed by a
    judge of that court.

[2]

The applicant now seeks leave to appeal to this court on three grounds
    of appeal:

1) The failure to swear the interpreter at his trial resulted
    in a miscarriage of justice.

2) The applicant did not receive full and complete disclosure.

3) The justice of the peace did not fulfill her duty to assist
    the applicant as a self-represented defendant.

[3]

An appeal lies to this court with leave, on special grounds, upon any
    question of law alone. For leave to appeal to be granted, a judge of this court
    must be satisfied that it is essential that leave be granted in the public
    interest or for the due administration of justice. More specifically, s. 139 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (
POA
) which
    governs leave to appeal from Part I
POA
offences such as this one, states:

139.  (1)  An
    appeal lies from the judgment of the Ontario Court of Justice in an appeal
    under section 135 to the Court of Appeal, with leave of a judge of the Court of
    Appeal, on special grounds, upon any question of law alone.

(2)  No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[4]

For the reasons that follow, I am of the opinion that leave to appeal should
    be granted with respect to the second and third proposed grounds of appeal. I refuse
    to grant leave on the first ground.

[5]

A brief summary of the factual background will be of assistance in
    appreciating the proposed grounds of appeal. I will then address the leave
    requirements in s. 139 of the
POA
and apply them to this case.

B.

Background

(1)

Facts and Decision at Trial

[6]

The applicant had the assistance of an interpreter from Urdu to English
    at his trial. The interpreter was not sworn. Notwithstanding the presence of
    the interpreter, the applicant primarily addressed the court in English.

[7]

The applicants version of the facts is straightforward. He was
    travelling eastbound on Broadway Avenue in the City of Toronto and made a right
    turn on a red light onto Bayview Avenue going southbound. A police officer
    pulled him over and alleged that he had failed to stop at the red light before
    turning. The applicant responded that he had in fact stopped. Both the
    applicant and the officer testified at trial as to whether the officer had a
    clear view of the intersection, and their evidence conflicted.

[8]

The applicant also testified as follows:

I did stop there [on Broadway at the intersection of Broadway
    and Bayview] and took the right turn.  The officer told me that he will give me
    the proof, because there was a gas station in the corner.  He said that there
    are cameras placed there and I will give you the proof.  I told him that I am
    prepared to take the proof if there are cameras there and, if you will provide
    me with the proof that I did not stop, then I will plead guilty.  Then he said
    okay, I will provide you with the proof in the court, saying that you did not
    stop.

[9]

The justice of the peace found the applicants evidence as to where he
    stopped to be very hazy. The applicant testified that he stopped
    approximately two car lengths from the intersection, but at another time
    testified that it was only one car length. In contrast, the justice of the
    peace found the police officers testimony to be complete and precise. As
    such, she accepted the police officers evidence that the applicant had failed
    to stop and entered a conviction without addressing his evidence that the
    police officer indicated that there was a video tape of the incident.

(2)

Appeal

[10]

On
    his appeal to the Ontario Court of Justice, the applicant had the assistance of
    a paralegal. He raised the following grounds on appeal: 1) the failure to swear
    the interpreter was a miscarriage of justice; 2) he did not receive full and
    complete disclosure; and 3) the justice of the peace did not fulfil her duty to
    assist the applicant as an unrepresented defendant.

[11]

The
    appeal court judge first dealt with the issue of the unsworn interpreter. He found
    that the interpreter stated on the record that he spoke both required
    languages, Urdu and English, and that the commentary of the applicant seemed
    responsive to the translation of the questions. He therefore held that no
    miscarriage of justice or prejudice to the applicant had occurred.

[12]

On
    the disclosure issue, the appeal court judge held that there appeared to have
    been no meaningful complaint about disclosure at first instance. He stated: this
    defendant did not request disclosure in advance of the trial, and made no
    complaint about it during the trial.

[13]

With
    respect to the applicants complaint about the lack of assistance at the trial,
    the appeal court judge held that while the justice of the peace could have done
    more to assist the applicant, not so little was done that he was not able to
    mount a defence with full force and have his day in court.

[14]

The
    same issues are now raised on the leave application. The
amicus
submits on behalf of the applicant that both the justice of the peace and the
    appeal court judge failed to appreciate the applicants argument respecting the
    video tape. A reading of the transcript indicates that he expected the police
    officer to bring the video tape to court. The inference is that he was unaware
    he needed to request disclosure.

C.

The requirements for leave to
    appeal to this court

[15]

In
    interpreting the requirements of a statute, the court should consider the
    scheme of the
Act
, the object of the
Act
, and the intention
    of the legislator: see
R. v. Biniaris,
2000 SCC 15
,
[2000] 1
    S.C.R. 381,

at para. 25.

[16]

The
POA
is intended to provide a mechanism for the speedy resolution of
    regulatory offences, sometimes referred to as quasi-criminal offences, charged
    under a variety of provincial statutes. In
R. v. 974649 Ontario Inc.,
2001
    SCC 81, [2001] 3 S.C.R. 575, at para. 78, the Supreme Court of Canada described
    the function of provincial offences courts as follows:

The function of a provincial court operating under the
POA
is to try provincial offences. While the majority of these offences involve
    minor regulatory infractions, they also concern important matters like
    environmental protection and, as here, workplace health and safety. These
    offences carry penalties ranging from significant fines to terms of
    imprisonment. The public and penal nature of such prosecutions suggests they
    are more criminal than civil in nature: see W. D. Drinkwalter and J. D. Ewart,
Ontario
    Provincial Offences Procedure
(1980), at pp. 4-7. Provincial offences
    courts are, for practical purposes, quasi-criminal courts, determining guilt
    and innocence and imposing commensurate criminal penalties.

[17]

The
POA
envisages that, at the first level of appeal, the applicant may
    raise any ground of appeal: ss. 135, 136. That appeal is intended to be a final
    resolution of the issues raised unless the exceptional circumstances in s. 139
    are met. Section 139 does not give a judge of this court unfettered discretion
    as to when leave to appeal should be granted. It contains specific requirements
    that create a high threshold. Any further appeal to this court is an appeal
    from the decision of the appeal court judge and the grounds of appeal are
    limited to questions of law. Furthermore, even if a question of law is raised,
    that alone will not be sufficient to merit a second appeal. The applicant must
    convince a judge of this court that leave is
essential
in the public
    interest or for the due administration of justice.

(1)

A Question of Law and the Special
    Grounds Criteria in s. 139

[18]

Determining
    what constitutes a question of law is sometimes difficult. Courts have often
    taken a case-by-case approach to analyzing whether an appeal raises a question
    of law: for a list of examples, see E.G. Ewaschuk,
Criminal Pleadings &
    Practice in
Canada, 2d ed., looseleaf (Toronto: Thomson Reuters, 2013)
    vol. 3 at 23:1010. This approach was discouraged by the Supreme Court in
Biniaris
in the context of determining access to appellate review.

[19]

The issue in
Biniaris
was whether the
    reasonableness of a verdict is a question of law for the purposes of Crown
    rights of appeal to the Supreme Court of Canada. Arbour J. wrote, at para. 22:

[20]

The
    sole purpose of the exercise here, in identifying the reasonableness of a
    verdict as a question of fact, law or both, is to determine access to appellate
    review. One can plausibly maintain, on close scrutiny of any decision under
    review, that the conclusion that a verdict was unreasonable was reached
    sometimes mostly as a matter of law, in other cases predominantly as a matter
    of factual assessment. But when that exercise is undertaken as a jurisdictional
    threshold exercise, little is gained by embarking on such a case-by-case
    analysis. Rather, it is vastly preferable to look at the overall nature of
    these kinds of decisions, and of their implications. Ideally, threshold
    jurisdictional issues should be as straightforward and free of ambiguity as
    possible. Otherwise, as these and many similar cases illustrate, courts spend
    an inordinate amount of time and effort attempting to ascertain their
    jurisdiction, while their resources would be better employed dealing with the
    issues on their merits.

[21]

In my view, a holistic approach should be taken to the leave
    requirements in
POA
matters. What constitutes a question of law must
    be considered concurrently with the requirement that it be essential that the matter
    be resolved in the public interest or for the due administration of justice. The
    two parts of the test for leave under s. 139 of the
POA
are
    inextricably linked: questions that raise issues requiring resolution in the
    public interest or for the due administration of justice can properly be viewed
    as raising questions of law.

[22]

As
    the Supreme Court explained in
Canada (Director of Investigation and
    Research) v. Southam Inc.,
[1997] 1 S.C.R. 748 at para. 39,

a
    question of mixed fact and law can become a pure question of law where the
    decision maker failed to consider an essential legal requirement and therefore
    in effect applied the wrong law to the facts.
[1]
Similarly, where the issue is whether the facts in question fulfill a
    requirement contained in a statute, and the issue may be relevant to other
    cases in the future, the question is considered to be an issue of interpretation
    and is a question of law
[2]
:
    see
Southam
at para. 36.

[23]

In
    contrast, questions that have no significance beyond the parties, or factual
    circumstances that are unlikely to arise again in exactly the same way, or
    issues in relation to which the jurisprudence is well-settled, will not raise
    questions of law requiring resolution in the public interest. The following example
    was offered in
Southam, a
t

para. 37:

If a court were to decide that driving at a certain speed on a
    certain road under certain conditions was negligent, its decision would not
    have any great value as a precedent. In short, as the level of generality of
    the challenged proposition approaches utter particularity, the matter
    approaches pure application, and hence draws nigh to being an unqualified
    question of mixed law and fact. See R. P. Kerans,
Standards of Review
    Employed by Appellate Courts
(1994), at pp. 103-108.

[24]

Where
    the issue is such that a multitude of factors weigh in the balance and a
    duplication of the circumstances in the future is unlikely, the issue is one of
    mixed fact and law: see
Southam
,

at para. 44.

[25]

Even if the case does not have significance beyond its
    particular facts, the due administration of justice aspect of s. 139 requires
    that leave be granted in another category of cases. In this category of cases,
    a question of law is deemed to be raised because it is necessary to remedy a
    miscarriage of justice in order to maintain the publics confidence in the
    judicial system or it is necessary to ensure that a defendant is not deprived
    of his or her procedural rights: see
R. v. Belanger
, [2006] O.J. No.
    3453;
R. v. Inco Ltd.
(1999), 126 O.A.C. 348;
R. v. Harry
(1988),
    39 O.R. (3d) 673; see also
Biniaris
and
R. v. R.(R.)
,
2008
    ONCA 497, 238 O.A.C. 242, at paras. 32, 34.

[26]

In deciding whether leave to appeal should be granted based
    on the due administration of justice, the court will consider the likelihood of
    success on appeal, including whether there has been a clear or manifest error
    in the decisions below, and the impact of the outcome of the proceedings on the
    individual, including whether the applicants ability to earn a livelihood is
    in issue.

[27]

To
    summarize, in deciding whether to grant leave under s. 139, categorizing the
    question as one of mixed fact and law is not the end of the exercise. As
Southam
illustrates
,
the court must go on to consider whether a question
    of law is nonetheless raised. The court does so bearing in mind the importance
    of the issue to the public, its precedential value, the need for certainty and
    predictability in the law and whether the integrity of the administration of
    justice requires that leave be granted.

[28]

I
    now apply the test for granting leave to appeal to the three issues raised by
    the applicant in this case.

D.

Application of s. 139 to the
    Proposed Grounds of Appeal

(1)

The Unsworn Interpreter

[29]

The
    appellant asserts that a miscarriage of justice occurred because the
    interpreter was not sworn. Section 14 of the
Charter
provides:

A party or witness in any proceedings who does not understand
    or speak the language in which the proceedings are conducted or who is deaf has
    the right to the assistance of an interpreter.

[30]

In
R. v. Tran,
[1994] 2 S.C.R. 951, the Supreme Court of Canada held that
    in the context of a criminal proceeding, the proper remedy for a breach of s.
    14 of the
Charter
would normally be a new hearing. However, the court was
    clear that its comments were restricted to criminal proceedings and that
    different rules may apply in administrative or civil proceedings.

[31]

The effect of an interpreter not being sworn in the context
    of
HTA
proceedings was considered in
R. v. Messina
, 2005 ONCJ
    560, [2005] O.J. No. 4663. In that case the court held that the failure to
    swear the interpreter was a serious error. However, in the absence of any
    complaint as to the accuracy of the interpretation, the court declined to order
    a new trial.

[32]

Messina
is consistent with the later decision of this court in
R. v. Rybak
,
    2008 ONCA 354, 90 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2008] S.C.C.A.
    No. 311. Watt J.A., writing for the court, held that the interpretation
    provided to a person must be sufficient to ensure that he or she had the same
    opportunity as a person who was proficient in the language used in court to
    understand and be understood in the proceedings.

[33]

The
    legal standard described in
Messina
and
Rybak
is
    well-established. There is nothing about the circumstances of the present case
    that make the unsworn interpreter ground of appeal a question of law warranting
    leave to appeal either because the public interest or the due administration of
    justice so requires. The appeal court judge correctly held that the mere fact
    the interpreter was not sworn in this case does not give rise to a miscarriage
    of justice. The evidence suggests that the applicant was able to meaningfully
    participate in the proceedings and he has not complained about the quality or
    the adequacy of the translation. Therefore, I refuse to grant leave to appeal
    on this ground.

(2)

Disclosure Obligations and the Duty to Assist an Unrepresented Defendant

[34]

I
    propose to deal with these two proposed grounds of appeal together because in
    my opinion they are interrelated.

[35]

The
    paralegal who represented the applicant on his appeal in the Ontario Court of
    Justice submitted:

Mr. Rashid was not provided with full and complete disclosure
    prior to the beginning of his trial.  According to
R. v. Stinchcombe
,
    the Crown has a duty to provide full and complete disclosure of all relevant
    evidence, whether they intend to use the evidence at trial, or not.  In fact

[36]

At
    this point the appeal court judge intervened and stated:

Well,
R. v. Stinchcombe
is a
Criminal Code
decision.
    The Attorney General of Ontario has issued a directive that applies to all
    members of the Province, including professional licenced individuals, like your
    client, who drive a motor vehicle for a living.  The disclosure directive,
    which is available to all, requires the individual in question to request
    disclosure for these minor regulatory matters. Where in the transcript do you
    see any complaint about disclosure?

[37]

The
    paralegal made two further complaints about the lack of disclosure. First, he
    complained that the police officer referred to his notes during his trial
    testimony, but the applicant had not been provided with a copy of the notes.
    The justice of the peace asked the applicant if he had any objection to the officer
    using his notes, but she did not explain why the officer would want to use his
    notes or explain to the applicant that the officer wished to refresh his memory
    from his notes. Nor did she ask the applicant whether he wished to ask any
    questions about the circumstances surrounding the making of the notes.

[38]

The
    paralegals second complaint involved the alleged video recording. He said:

Now at trial the video evidence was never addressed by Her
    Worship, Justice of the Peace Dresher.  She did not ask if it existed nor did
    she ask if it had been provided to Mr. Rashid.  So here theres an issue of
    whether Mr. Rashid was able to have a fair trial when disclosure, specifically
    the officers notes, and specifically this video evidence that the officer had
    told him about, was never made available to him.

[39]

In
    dismissing the applicants complaint on the issue of disclosure, the appeal
    court judge stated that it appeared that the defendant did not request
    disclosure.

[40]

In
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, at para. 28, the Supreme Court
    of Canada held that the disclosure obligation is triggered by a request by or
    on behalf of the accused. The court added, however, that [i]n the rare cases
    in which the accused is unrepresented,
Crown counsel should advise the
    accused of the right to disclosure and a plea should not be taken unless the
    trial judge is satisfied that this has been done
 (emphasis added).

[41]

Persons
    charged under the
POA
are often self-represented at their trial. When
    an accused person is unrepresented in a criminal matter,
Stinchcombe
places
    the onus on the prosecution to advise the accused of the right to disclosure.
    The Ontario Court of Justice Guide for Defendants in Provincial Offences Cases
    reverses that onus and places the onus on the self-represented individual to
    request disclosure. Insofar as I am aware, the validity of that aspect of the Guide
    has never been the subject of commentary by this court.

[42]

The
    applicant raises the issue of whether and to what extent
Stinchcombe
applies
    to a Part I POA offence. The applicants testimony indicates that he was under
    the impression that the police officer would provide him with the proof of his
    offence in court by bringing the videotape without him needing to make a
    request for production. The applicant does not appear to have been aware that
    he had an obligation to request disclosure. Counsel for the City admitted
    during oral argument there is nothing on the ticket advising the person charged
    with an offence that disclosure is available upon request or where to obtain
    disclosure. Nothing in the record indicates that prior to the plea being taken
    the justice of the peace satisfied herself that the applicant was advised that
    he had a right to obtain disclosure provided he requested it. From the
    applicants perspective, this video was an important aspect of his ability to
    make full answer and defence.

[43]

This
    court has rendered several decisions regarding the obligation of trial judges
    to provide assistance to unrepresented litigants in the criminal context. In
R.
    v. McGibbon
(1988), 45 C.C.C. (3d) 334 (Ont. C.A.), this court stated, at
    p. 347:

Consistent with the duty to ensure that the accused has a fair
    trial, the trial judge is required within reason to provide assistance to the
    unrepresented accused, to aid him in the proper conduct of his defence, and to
    guide him throughout the trial in such a way that his defence is brought out
    with its full force and effect. How far the trial judge should go in assisting
    the accused in such matters as the examination and cross-examination of
    witnesses must be of necessity a matter of discretion.

[44]

Additional
    decisions have affirmed and expanded upon these comments and have held that a
    trial judge should explain to an unrepresented defendant the mechanics of the
    trial such as the arraignment, the calling of witnesses, the defendants right
    to examine witnesses and to object to irrelevant evidence, the risks inherent
    in testifying, and the right to make closing arguments: see
R. v. Tran
(2001), 55 O.R. (3d) 161 at para 33.

[45]

However,
    the Court of Appeal has not ruled on the applicability in the provincial
    offences context of
McGibbon
and subsequent cases on the duty on trial
    judges to assist self-represented accused. Some provincial appeal court judges
    have applied the principles from
McGibbon
and ensuing cases to
    provincial offence trials: see, for example,
R. v. Novelo
, 2009 ONCJ
    346 at paras. 6-8;
R. v. Rijal,
2010 ONCJ 329
,
259 C.C.C.
    (3d) 227 at paras. 30-31.

[46]

In
    contrast, in
Durham (Regional Muncipality) v. Saeed,
2010 ONCJ 251, 213
    C.R.R. (2d) 74, the appeal court judge,

Bellefontaine J., held that a
    justice of the peace has no obligation to ask a self-represented defendant
    about disclosure or to explain the significance of a police officer using his
    notes in relation to Part I offences under the
POA
. In doing so,
    Bellefontaine J. acknowledged, at para. 14, that he was departing from the
    majority of justices who have held that accused in the Provincial Offences
    courts are entitled to a more fulsome panoply of procedural explanations and
    the purposes of those procedures.

[47]

Justice
    Bellefontaine listed six reasons for refusing to follow these decisions,
    including the following reasons: requiring a justice of the peace to provide
    the full panoply of legal information would be inconsistent with the object of
    the legislation to provide speedy and efficient trials; the penalty for
    offences under Parts I and II of the
POA
is limited to a fine of $500;
    and there are broad rights of appeal under ss. 135 and 136 of the
POA
to a judge of the Ontario Court of Justice (at para. 14).

[48]

Thus,
    there is conflicting authority on the issues of disclosure obligations in the
    provincial offences context and the nature of the duty on justices of the peace
    to assist self-represented defendants. Having regard to the test for leave, I
    conclude that it would be in the public interest for this court to decide whether
    any right to disclosure was breached in this case, and to clarify the extent of
    any assistance that a justice of the peace is expected to provide to
    unrepresented defendants in trials of offences under Part I of the
POA
.

E.

Conclusion

[49]

For
    the reasons given above, I would grant leave to appeal on the second and third
    grounds of appeal. I am indebted to the
amicus
in this case for her
    very able assistance on this leave application. No doubt the panel hearing the
    appeal would appreciate the assistance of
amicus
to argue the appeal.

Released:  December 20, 2013

KMW"                                                                  Karen
    M. Weiler J.A.

[1]

An example would be where a judge
    mischaracterizes and treats an offence as one of absolute liability when a
    defence of due diligence is permitted. See
R. v. Maharaj
(12 November
    2013), M42491 (Ont. C.A.).

[2]
An example of the latter situation can be found in
R.
    v. Araujo,
2000 SCC 65,

[2000] 2 SCR
    992, where the issue was not the interpretation of a section of the
Criminal
    Code
, but rather the meaning to be given to the requirement of
    investigative necessity for obtaining a wiretap pursuant to s. 186(1) Criminal
    Code and whether the trial judge correctly applied the standard of review for a
    wiretap authorization, including the correct approach on amplification.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Williams, 2013 ONCA 772

DATE: 20131220

DOCKET: C56001

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geran Williams

Appellant

Michael Dineen, for the appellant

Michael Medeiros, for the respondent

Heard:  December 6, 2013

On appeal from the decision of Justice E. Eva Frank of
    the Superior Court of Justice, sitting without a jury, on March 23, 2012.

ENDORSEMENT

[1]

The appellant appeals several convictions arising out of his possession
    of a fully-loaded .45 calibre semi-automatic handgun and a small quantity of
    marihuana.

[2]

The appellant reinvigorates an argument made at trial that the police
    conduct in obtaining the evidence against him  the handgun and marihuana
    infringed his rights under sections 8 and 9 of the
Charter of Rights and
    Freedoms
.  To be more specific, the appellant says that he was arbitrarily
    detained when first approached by police, then subjected to an unreasonable
    search, which resulted in the unreasonable seizure of the handgun and
    marihuana.  The seized items, the appellant contends, should have been excluded
    as evidence at his trial.

[3]

The trial judge disagreed.  So do we.  The conduct of the police
    offended neither s. 8 nor s. 9 of the
Charter
.  The gun and marihuana
    were properly admitted as evidence at trial.  The appeal is dismissed and the
    several convictions affirmed.

THE BACKGROUND FACTS

[4]

The appellants trial proceeded as a blended
voir dire
and
    trial before a judge of the Superior Court of Justice sitting without a jury.
    The evidence on the
voir dire
consisted of the testimony of the
    several police officers involved in the investigation of the appellant and of
    two witnesses called on the appellants behalf.  The appellant did not testify
    on the
voir dire
or at trial.

[5]

The interaction between the appellant and the police quickly followed
    receipt of an anonymous tip about a man with a gun in an area not far from the
    police station where crimes involving drugs and guns are frequent.  The
    evidence about what happened during the police response was not entirely
    consistent, as among the several police witnesses, or between their testimony
    and the accounts provided by the two civilians called on behalf of the
    appellant.

[6]

The trial judge made several critical findings of fact from the evidence
    adduced at trial.  The appellant does not suggest that those findings are
    unreasonable or tainted by misapprehensions of the relevant evidence.  The nub
    of the appellants complaint is that the legal conclusions the trial judge drew
    from her findings of fact are wrong.

The Anonymous Tip

[7]

Shortly after 7:25 p.m. on July 10, 2008 a police officer answered the
    telephone in the Major Crime Unit of 23 Division police station in Toronto.
    The caller told the officer that a person was walking south at 1800 Martingrove
    with a gun.  The person was described as a black man wearing a black t-shirt
    and jeans.  The man was five feet eight inches tall, had a baby face, and wore
    his hair in dreadlocks.  The officer asked the callers name.  The caller hung
    up.

[8]

The housing complex at 1800 Martingrove is a short distance from 23
    Division and well-known to the officers who work at that station.  Police are
    frequently called to this complex about ongoing problems with drugs and guns,
    including shootings.  Police refer to the area as a stovetop, a place where
    crack cocaine is often cooked on the top of a stove.

[9]

Police knowledge about the illicit activities at 1800 Martingrove means
    that there is frequent police activity in and around the complex.  Plainclothes
    officers are routinely recognized for what they are  the police.

The Police Response

[10]

The
    information received during the anonymous call was passed on immediately to
    other members of the Major Crime Unit.  Within minutes, six officers in
    plainclothes responded, taking up various positions in the area described by
    the caller.

[11]

The
    first officers there noticed, within a group of people, one individual who fit
    the callers description about the man with the gun.  The mans face was not
    visible so that the officers could not confirm, initially at least, that the
    man they saw at the south entrance to 1800 Martingrove  the appellant  had a
    baby face.  Two of the officers stayed out of sight of the appellant.

The Approach

[12]

Two
    police officers approached the appellant, identified themselves as police
    officers, and said they were investigating a weapons offence.  One of the
    officers asked Are you armed?.  The appellant did not answer the officers
    question.  Instead, the appellant bladed  turned to his side  in a manner
    the officer considered evasive.  The others who were with him did not react in
    the same way.  One of the officers noticed that the appellant also made a
    movement towards the area of his waist.

[13]

An
    officer told the appellant to put his hands up and to turn around.  The
    appellant did neither.

The Confrontation and Search

[14]

The
    failure of the appellant to respond to the police inquiry and subsequent
    instruction prompted the two officers closest to him to approach the appellant
    and take control of his arms.  The appellant resisted.  All of the officers
    testified that they considered their safety, as well as that of the public, to
    be at risk.  During the brief struggle that followed, one officer lifted up the
    appellants t-shirt and saw the butt end of a handgun protruding from the waistband
    at the back of the appellants pants.  The officer yelled gun, gun, gun.

[15]

Other
    officers assisted in subduing the appellant on the ground and handcuffing him
    behind his back.  The handgun was fully loaded, including a cartridge in the
    firing chamber, and was ready to fire.  The appellant was arrested.  The
    marihuana was recovered during a search incident to the appellants arrest.

The Ruling of the Trial Judge

[16]

The
    trial judge considered, first, the argument that the appellant was arbitrarily
    detained from the outset because neither the anonymous tip nor anything that
    occurred thereafter amounted to the reasonable suspicion required to justify an
    investigative detention.

[17]

The
    trial judge was satisfied that the information provided in the anonymous tip was
    insufficient to found a reasonable suspicion that the appellant committed an
    offence and thus could not, on its own, justify an investigative detention.
    But the tip combined with what occurred as the officers spoke to the appellant
    furnished the grounds necessary to justify the investigative detention that
    followed.  Once the gun was seen, the officers had reasonable and probable
    grounds to arrest the appellant.

[18]

The
    trial judge was also satisfied that the search of the appellant was not
    unreasonable.  She acknowledged that what occurred was not a pat-down permitted
    out of concern for officer or public safety, as part of an investigative
    detention.  But what happened, the lifting of a t-shirt, was less invasive than
    a pat-down search would have been and thus was not unreasonable.

[19]

Despite
    the finding that none of the evidence proposed for admission by Crown counsel
    had been obtained in a way that infringed the appellants
Charter
rights,
    the trial judge considered the application of s. 24(2) of the
Charter
on
    the assumption that she had erred in her findings about a
Charter
infringement.  She concluded that she would have admitted the evidence about
    finding the gun and marihuana even if she had found either or both the alleged
    infringements.

Ground #1:  Arbitrary Detention

[20]

The
    appellant says that although the trial judge was correct in deciding that the
    anonymous tip, on its own, was insufficient to authorize the investigative
    detention of the appellant, she erred in finding that the subsequent events
    established the necessary conditions precedent for such a detention.  The
    appellants conduct when confronted by the police included responses that were
    at once ambiguous and consistent with the exercise of his right to silence.
    Besides, what happened here was not an investigative detention, but rather a
de
    facto
arrest unsupported by any reasonably-grounded belief that the
    appellant committed an offence.

[21]

We
    do not agree.

[22]

Police
    may detain a person for investigative purposes if they have reasonable grounds
    to suspect that the person is connected to particular criminal activity and
    that such a detention is reasonably necessary in the circumstances:
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45;
R. v. MacKenzie
,
    2013 SCC 50, at para. 35.  The standard  reasonable grounds to suspect
    involves possibilities, not probabilities:
MacKenzie
, at para. 38;
R.
    v. Chehil
, 2013 SCC 49, at para. 27;
R. v. Kang-Brown
, 2008 SCC
    18, [2008] 1 S.C.R. 456, at para. 75.   We must take care not to conflate the
    test for reasonable suspicion with the more exacting standard of reasonable
    belief:
MacKenzie
, at para. 84;
Chehil
, at para. 27.

[23]

A
    reasonable suspicion entails more than a sincerely held subjective belief, for
    that is mere suspicion:
MacKenzie
, at para. 41;
Kang-Brown
,
    at para. 75.  A reasonable suspicion is a suspicion grounded in objectively
    discernible facts, which could then be subjected to independent judicial
    scrutiny:
Chehil
, at para. 26;
MacKenzie
, at para. 41.

[24]

To
    determine whether the reasonable suspicion standard has been met, a reviewing
    court must examine the totality of the relevant circumstances.  This
    examination is not some scientific or metaphysical exercise.  Common sense,
    flexibility, and practical everyday experience are to be applied through the
    eyes of a reasonable person equipped with the knowledge, training, and
    experience of the investigating officer:
MacKenzie
, at para. 73.  The
    standard of reasonable suspicion is not frustrated simply because the factors
    urged in support may also give rise to an innocent explanation.  In the end, if
    the facts objectively indicate the
possibility
of criminal behaviour
    in light of the totality of the circumstances, the objective component of the
    reasonable suspicion standard has been satisfied:
MacKenzie
, at para.
    72;
Chehil
, at para. 31.

[25]

Any
    elements or factors considered as part of a reasonable suspicion analysis
    must respect
Charter
principles.  Nor should the exercise of
Charter
rights, such
as the right
    to remain silent or to walk away from questioning made outside the context of a
    detention, provide grounds for reasonable suspicion:
Chehil
, at paras.
    43-44.  Yet some factors, including flight from the police, may give rise to
    reasonable suspicion on their own:
Chehil
, at para. 31.  Even if a
    factor cannot on its own support reasonable suspicion, reasonable suspicion may
    be established when the same factor is simply one of a constellation of
    factors:
Chehil
, at para. 31.  The actions of a person after an
    initial encounter with the police are part of the circumstances to be
    considered in deciding whether the reasonable suspicion threshold has been
    crossed:
R. v. Nesbeth
, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras.
    1-2 and 17-18.

[26]

The
    parties agreed at trial and in this court that, on its own, the anonymous tip
    was not sufficient to satisfy the reasonable suspicion standard.  That said,
    the tip remained a part, and an important part, of the circumstances that were
    relevant to a determination of the reasonable suspicion issue.  The tip was
    current, described the nature of the offence being committed, and contained sufficient
    particulars of the suspect to enable police to immediately focus on the
    appellant when they arrived minutes later.

[27]

In
    our view, the combination of the anonymous tip and what occurred when the
    appellant encountered the police was capable of supporting a reasonable belief
    that the appellant might be connected to a gun crime as reported by the
    anonymous caller.  Nothing more was required.

Ground #2:  Unreasonable Search

[28]

The
    appellant advances a second claim of constitutional infringement in connection
    with the recovery of the handgun and marihuana.  He says that even if we
    conclude that the standard for investigative detention has been met, and thus
    that the appellant was not arbitrarily detained, the seizure of the contraband
    infringed his rights under s. 8 of the
Charter
.

[29]

The
    appellant says that the search that may be conducted of a person in instances
    of investigative detention is a pat-down search.  What occurred here, the
    appellant says, exceeded a pat-down search and was more akin to a strip search,
    a procedure that well exceeded what the law permits.

[30]

Again,
    we do not agree.  This ground of appeal fails.

[31]

The
    police were investigating a possible gun offence.  They apprised the appellant
    of their purpose.  They asked whether he was armed.  He did not answer their
    question, but bladed, turned away from them.  An officer told the appellant
    to put his hands up and turn around.  He refused.  The officers approached and
    took hold of both arms.  The appellant resisted.

[32]

One
    officer lifted the appellants baggy t-shirt.  A gun butt protruded from the
    waistband of the appellants pants.  The officer saw it and yelled gun, gun,
    gun.  The appellant was subdued, handcuffed, and placed under arrest.

[33]

Strictly
    speaking, what occurred was not a pat-down search.  But what occurred was no
    more, and arguably less, intrusive than a pat-down search.  To characterize
    what occurred here as unreasonable is to sacrifice substance for form.  In no
    sense could this search be characterized as the functional equivalent of a
    strip search.

Ground #3:  The Admissibility of Evidence

[34]

This
    ground of appeal requires the appellant to show that the evidence admitted at
    trial  the gun and marihuana  was obtained in a manner that infringed his
    rights under either s. 8 or s. 9 of the
Charter
.  Since he has failed
    to demonstrate that the evidence was obtained in a constitutionally flawed way,
    we do not reach the application of s. 24(2) of the
Charter
.

[35]

The
    trial judge did consider the application of s. 24(2) in case a reviewing court
    concluded that she had erred in finding that no constitutional infringement had
    occurred.  Her analysis and conclusion are unblemished by any error in
    principle, a failure to consider any relevant factor, a consideration of any
    irrelevant factor, or a misapprehension of any of the evidence.  We agree with
    her analysis and the result she reached.

CONCLUSION

[36]

For
    these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

David
    Watt J.A.

K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woods, 2013 ONCA 766

DATE: 20131218

DOCKET: C56640

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Woods

Applicant/Appellant

Andrew Furgiuele, for the appellant

Bradley Reitz, for the respondent

Heard and released orally: December 12, 2013

On appeal from the sentence imposed on February 14, 2013,
    by Justice David Harris of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant seeks leave to appeal his sentence, after pleading guilty
    to two counts of possession of cocaine for the purposes of trafficking. On
    September 28, 2011, the appellant was in possession of $1,130 cash, a small
    amount of marijuana, Percocet pills, digital scales, cellphones, and some 95.5
    grams of cocaine. He was released on an undertaking. This resulted in the first
    count. While he was awaiting trial, on February 16, 2012, the appellant was found
    in possession of 288.5 grams of cocaine, 79 ecstasy pills and $540 in cash.
    This resulted in the second count. He received a sentence of 18 months
    imprisonment for the first count, and 30 months imprisonment on the second
    count.

[2]

The sentencing judge recognized and took into account that the appellants
    youth, lack of a previous record, gambling addiction, rehabilitation efforts,
    remorse, and guilty pleas were mitigating factors. He alluded to the danger
    that a lengthy term of imprisonment could impair the rehabilitation and
    reintegration of the appellant as a responsible member of the community.

[3]

However, the sentencing judge considered it an aggravating factor that
    the appellant committed the second offence while released on an undertaking and
    awaiting disposition of the first offence.

[4]

We agree. Where an accused re-offends while on release, the sentencing
    principles of general deterrence and denunciation must be given more
    significance to discourage and denounce such conduct. Further, we see no basis for
    the appellants submission that the sentences on the two offences should have
    been concurrent. We are not persuaded that the sentencing judge made any error
    or that the sentence is unfit.

[5]

Leave to appeal sentence is granted, and the appeal is dismissed.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2013 ONCA 778

DATE: 20131224

DOCKET: C56668

Doherty, Feldman, MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sylvanus Wright

Appellant

Matthew Gourlay and Christine Mainville, for the
    appellant

Stacy Young, for the respondent

Heard: December 10, 2013

On appeal from the conviction entered on April 30, 2012
    by Justice Lack of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for possession of a weapon for a
    dangerous purpose (s. 88(1) of the
Criminal Code,
R.S.C. 1985, c. c-46),
    unauthorized possession of a firearm in a vehicle (s. 94(1)), and careless
    transport of a restricted weapon (s. 86(1)). The basis for the appeal is the
    trial judges rulings, first that the search of the trunk of the vehicle was
    not unreasonable and not contrary to s. 8 of the
Canadian Charter of Rights
    and Freedoms
and second, if the search was a breach of the appellants
    right against unreasonable search and seizure, that the weapon should be admitted
    into evidence under s. 24(2) of the
Charter
.

[2]

The search took place under the following circumstances. On July 5, 2008
    at around 1:00 a.m., wiretap officers informed Detective Jones that they had heard
    communications between the appellant and Emyries Lewis indicating that the
    appellant might have a firearm in one of two cars, a Honda or a Lexus. Detective
    Jones travelled to Oshawa, where around 2:00 a.m., having located the two cars
    in the parking lot of a club, he briefed officers in the vicinity of that
    parking lot. He told the officers he had reliable information that there was a
    firearm in one of two cars, which he described with their license plate
    numbers.

[3]

Lack J. found that Detective Jones did not pass on the names of the two
    suspects, nor did he convey that the source of the information was a wiretap.
    Although he testified that he wanted the cars stopped and searched, the
    officers understood that they were to stop the two cars to try to determine if
    there was a firearm, but had no direct order to search.

[4]

The Lexus, driven by Mr. Lewis, was stopped but eventually let go.

[5]

Two other officers attended the Honda which had been stopped by two
    officers almost immediately after the Lexus was stopped. One officer smelled
    liquor on the breath of the driver, McLean, who was administered the screening
    test, registered a warn and received a 12-hour license suspension.

[6]

The other officer checked the appellants identification and received
    information from the Toronto Police database that the appellant was considered
    armed and dangerous.

[7]

As the appellants license was also suspended, he could not drive the
    car in McLeans place. The appellant called his girlfriend to come but she
    could not. The police then told the two men that the car would have to be
    towed. At that point, the appellants demeanor changed from relaxed to very
    nervous. He made a point of saying the car was his girlfriends, he did not
    know what was in it and that nothing in it belonged to him. He disavowed
    ownership of the cell phones in the car and told McLean strongly, when McLean
    was going to take one, thats not yours.

[8]

The appellants demeanor and attitude changed once the car was going to
    be towed, and after one of the officers inadvertently opened the trunk when he hit
    the release button while taking the keys from the ignition. Based on that
    change in demeanor, the officers decided they had reasonable and probable
    grounds to search the vehicle. In the back of the trunk inside a black shoulder
    bag wrapped in some shirts the officers found a handgun. The officers never,
    however, considered whether there were exigent circumstances requiring an
    immediate search.

[9]

The trial judge concluded, based on the totality of the circumstances,
    that the officers had reasonable and probable grounds to search the car. These
    included the reliable information about a gun from a superior officer and the
    appellants change in demeanor and attitude once the trunk was opened and the
    car was going to be towed to the police station.

[10]

Section
    117.02 of the
Code
allows a warrantless search for firearms in exigent
    circumstances. It provides:

117.02 (1) Where a peace officer believes on
    reasonable grounds

(a) that a weapon, an imitation firearm, a prohibited
    device, any ammunition, any prohibited ammunition or an explosive substance was
    used in the commission of an offence, or

(b) that an offence is being committed, or has been
    committed, under any provision of this Act that involves, or the subject-matter
    of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon,
    a restricted weapon, a prohibited device, ammunition, prohibited ammunition or
    an explosive substance,

and evidence of the offence is likely to be found on a person,
    in a vehicle or in any place or premises other than a dwelling-house, the peace
    officer may, where the conditions for obtaining a warrant exist but, by reason
    of exigent circumstances, it would not be practicable to obtain a warrant,
    search, without warrant, the person, vehicle, place or premises, and seize any thing
    by means of or in relation to which that peace officer believes on reasonable
    grounds the offence is being committed or has been committed.

[11]

The
    trial judge did not consider whether there were exigent circumstances that
    allowed the officers to search the trunk without a warrant.

[12]

On
    appeal, the Crown argued that there were exigent circumstances because of the
    threat either to public or to police safety, from the fact there may have been
    a firearm in the car. The Crown also argued that the search was justified under
    the common law
Waterfield
doctrine (
R v. Waterfield
, [1963] 3
    All E.R. 659) on the basis that once the police had control and responsibility
    for the vehicle, they had the power to examine its contents for personal or
    public safety.

[13]

The
    problem with both of these arguments is that the appellant and McLean had been
    patted down and had no access to the car by the time of the search. Further,
    the police were not performing a safety check but a search for the weapon they
    had been directed to.

[14]

It
    is not necessary, however, to finally decide whether there was a breach of s. 8
    in this case. We are satisfied that even if there was a breach, the firearm was
    properly admitted into evidence under s. 24(2) of the
Charter
and that
    its admission would not bring the administration of justice into disrepute.

[15]

Applying
    the three criteria from
R v. Grant
, 2009 SCC 32, the first is the
    seriousness of the
Charter
-infringing conduct. We agree with the trial judges
    finding that the officers acted in good faith in the sense that they did not
    decide to search the vehicle until they had developed the requisite reasonable
    and probable grounds in light of unfolding events at the scene of the vehicle
    stop. They knew they did not have reasonable and probable grounds when they
    first stopped the Honda, and were only satisfied that these grounds developed
    once the appellant (a) became noticeably concerned about the police taking the
    car, and (b) began to dissociate himself from the car and its contents.
    Although the officers should have but did not advert to the existence of
    exigent circumstances or to officer or public safety, if that failure caused a
    breach of s. 8, it still places the seriousness of the
Charter
infringing
    conduct at the lower end of the spectrum on this occasion.

[16]

The
    second
Grant
factor is the impact of the breach on the appellants
    expectation of privacy. Again, the impact is relatively low in the specific
    circumstances of this case. A persons expectation of privacy in his (or his
    partners) vehicle is less than in his residence:
R. v. Caslake
[1998] 1
    S.C.R. 51;
R. v. Alkins
(2007), 85 O.R. (3d) 161 (C.A.) at para 40;
R.
    v. McKenzie
2011 ONCA 42 at para. 11. In this case, the vehicle was about
    to be towed to the police station under the statutory authority of s.48(11) of
    the
Highway Traffic Act,
R.S.O.
    1990 c. H.8,
which permits the police to impound a vehicle where
    the driver fails the roadside test
.
As
    this court determined in
R v. Wint
, 93 O.R. (3d) 514, the right to impound a vehicle
    also includes the right to inventory its contents. This further reduces the
    expectation of privacy when a vehicle is driven on the roads.

[17]

The
    third factor is societys interest in the adjudication of the case. Gun
    violence and gun possession are matters of serious concern in our society. A
    loaded firearm is also reliable evidence and was essential to prove the Crowns
    case. All of these factors favour inclusion.

[18]

The
    final step is to balance all of the
Grant
factors.  Given the finding that
    the officers were acting in good faith and that any potential breach was at the
    lower end of the spectrum, the reduced expectation of privacy and the
    seriousness of the charges, the balance favours admission of the evidence.

[19]

Counsel
    for the appellant did, however, raise one further concern. He pointed out that
    if in future, officers believe they can search for a gun where there are no
    exigent circumstances and the gun will be admitted, then the purpose of s. 117.02
    of the
Code
will be undermined. That is a legitimate potential concern
    which will have to be addressed if such circumstances arise in the future.

[20]

On
    balance, in the particular circumstances of this case, the gun should not be
    excluded under s. 24(2).

[21]

The
    appeal is therefore dismissed.

D. Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yowfoo, 2013 ONCA 751

DATE: 20131212

DOCKET: C55455

Goudge, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clinton Yowfoo

Appellant

Clayton Ruby and Gerald Chan, for the appellant

Bradley Reitz, for the respondent

Heard: November 27, 2013

On appeal from the conviction entered on November 24,
    2011 and the sentence imposed on December 16, 2011 by Justice Barry G.A. MacDougall
    of the Superior Court of Justice, sitting without a jury.

By the Court
:

[1]

On November 24, 2011, the appellant was convicted by a judge sitting
    alone of three drug offences (possession of cocaine, methamphetamine, and
    heroin for the purpose of trafficking), seven firearms related offences and two
    other unrelated offences.  He appeals his convictions for the drug and firearms
    offences only.

[2]

The sole issue at trial with respect to these offences was whether the
    appellant had constructive possession of the drugs and firearms found by the police
    in a locked closet in a house at 22 Mendota Road.

[3]

The case against the appellant was entirely circumstantial.

[4]

The appellant does not contest the following facts.  He was actively
    involved in a drug trafficking enterprise with two associates, Mac and Ngo.
    During the course of police surveillance of the enterprise prior to the alleged
    offence, he was observed in contact with Mac and Ngo on numerous occasions.  On
    August 6, 2009, both Mac and Ngo were arrested.  The police searched their
    residences and found large quantities of drugs and cash.

[5]

Two days later, on August 8, 2009 the police arrived at 22 Mendota Road
    at 4:30 p.m.  The appellants car was in the driveway, although that was not
    his residence.  Some 53 minutes later, the appellant emerged from the house
    carrying two bags containing a number of items consistent with drug
    trafficking.  He was arrested, but escaped after a struggle, and fled.  The
    police discovered the bags and the drug related material in his car.  The
    police then searched the house and found it basically empty, save for a locked
    closet.  When they broke it open, the closet contained the drugs and firearms
    involved in these charges.  These items could have been worth up to $1.7
    million.  The house at 22 Mendota Road was a stash house.  The appellant had
    a key for the house, and packaging for the brand of lock on the closet,
    although there was no evidence that he had a key to the locked closet.

[6]

As the trial judge properly acknowledged, the burden on the Crown in
    this circumstantial case was to establish that the only reasonable inference
    available from the evidence was that the appellant had knowledge and control,
    and therefore constructive possession of, the items seized from the locked
    closet.

[7]

The trial judge concluded that the Crown had done so, and found the
    appellant guilty.  He rejected the defence argument that it was also reasonable
    to infer that the appellant either did not know of, or had no control over the
    contents of the locked closet.

[8]

In this court, the appellant renews this argument.  He emphasizes that
    there was no evidence that the appellant had a key for the locked closet, that
    the appellant was actively involved in the drug trafficking enterprise with Mac
    and Ngo, that in the period prior to his arrest he was observed with Mac and
    Ngo on numerous occasions, that two days before the appellants arrest, the
    police arrested Mac and Ngo and searched their residences where large quantities
    of drugs and cash were discovered, that 22 Mendota Road was a stash house for
    drug trafficking, and that the appellant removed drug trafficking items from
    the house leaving it empty save for the contents of the locked closet.

[9]

The appellant argues that on this circumstantial evidence, a reasonable
    inference is available that the appellant knew what had happened to Mac and Ngo
    and went to the Mendota Road stash house to remove items related to their
    drug trafficking enterprise before the police arrived.  One could then
    reasonably infer that because he left only the contents of the locked closet,
    he either had no control over the locked closet or did not know what it
    contained.

[10]

The
    trial judge rejected this argument because the appellant did not testify and
    there was no evidence that when he went to the stash house he knew what had
    happened to Mac and Ngo two days before.

[11]

The
    appellant argues that the trial judge erred by requiring direct evidence that
    the appellant knew what happened to Mac and Ngo, but failed to address whether
    the circumstantial evidence was sufficient to permit this conclusion to be
    reasonably inferred.

[12]

In
    our view, this argument has much force.  Indeed, in this court, the Crown
    candidly and explicitly acknowledged that the reasonable inference argued for
    by the appellant was indeed available from the circumstantial evidence.

[13]

Once
    it can reasonably be inferred that the appellant knew on August 8 what had
    happened to Mac and Ngo two days before, the rest follows.  It is reasonable
    that he went to the stash house to clear it of all drug trafficking items
    before the police arrived, and since he left behind the contents of the locked
    close, he either had no access to it and thus no control over it, or he did not
    know of its contents.

[14]

In
    our opinion, particularly in light of the Crowns concession, the conclusion of
    the appellants knowledge and control of the contents of the locked closet was
    not the only reasonable inference available from the circumstantial evidence.

[15]

We
    would therefore allow the appeal and direct an acquittal on these charges.  If
    necessary, the court can be spoken to about the consequences of this conclusion
    for the sentence imposed at trial, about which no submissions were made in this
    court.

Released: December 12, 2013 (S.T.G.)

S.T. Goudge J.A.

R.G. Juriansz J.A.

Gloria Epstein J.A.