Criminal Law – Appeal – Conviction
Criminal Law – Controlled Drugs and Substances – Possession for the Purposes of Trafficking – Cocaine
Criminal Law – Conviction – Aiding and Abetting
The appellant appealed his conviction of possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). The accused and others were the subject of police surveillance. The accused was observed taking items out of the trunk of his car and carrying them into one of the locations. Another individual was stopped by police in Alberta and a backpack similar to the one the accused was seen with contained a large amount of cocaine and marihuana. After the arrest, the accused’s brother rented another apartment. An expert testified at trial that intercepted conversations between the appellant and another accused regarding drug trafficking activities. The apartments were searched and cocaine and items used in packaging it were seized. The appellant argued that there was nothing connecting him to the second apartment except that he paid the rent. He also argued that he was not the speaker in some of the phone calls where the Crown indicated he was. The trial judge concluded that the evidence linked the appellant to the person arrested in Alberta and that the two apartments were stash houses for cocaine. He also found that the appellant was not credible. The appellant was convicted of trafficking cocaine on the basis of aiding and abetting. The issues on appeal were: 1) did the trial judge err in law in finding the appellant guilty of aiding and abetting when the Crown had failed to prove mens rea, knowledge, control, or possession of cocaine; 2) did the trial judge fail to apply the principles of R. v. W.(D.); 3) was the finding of guilt for possession of cocaine inconsistent with the trial judge’s finding that the appellant was not guilty of the offences related to the firearm located at the same premises as the cocaine; and 4) was the trial judge’s decision an unreasonable verdict.
HELD: The appeal was dismissed. The issues were determined as follows: 1) the Crown did not have to prove that the appellant had possession and control of the cocaine at the apartments for the trial judge to convict him of aiding and abetting. The trial judge found that the appellant was not credible and this led to the conclusion that he did not believe the appellant had no knowledge of illicit activities and was merely helping friends. Also, the appeal court found that it was not necessary for it to be clear who was being aided and abetted as long as there was evidence of other principals committing the crime. The Court of Appeal found that it would be a reasonable inference that the drug trafficking activities at the two apartments were connected as were the participants. Time is not an essential element of the offence of aiding and abetting in possession for the purposes of trafficking. Further, the appeal court held that an expert is not required for voice identification; the conclusion can be based on fact evidence; 2) the appeal court was satisfied that the trial judge was aware of the R. v. W. (D.) direction even though he did not expressly state that he had no reasonable doubt after reviewing the appellant’s case. It was a fair inference that his testimony failed to raise a reasonable doubt; 3) verdicts are not unreasonable just because they are inconsistent; and 4) the Court of Appeal was satisfied that the trial judge properly reviewed the evidence, including the circumstantial evidence, as a whole in determining that the appellant was guilty.