[November 1, 2024] Extrinsic Misconduct or Bad Character Evidence [Reasons by Kalmakoff J.A. with Drennan and Kilback JJ.A. concurring]
AUTHOR’S NOTE: This case reinforces the principle that extrinsic misconduct or bad character evidence is presumptively inadmissible to show that an accused is the type of person likely to have committed the charged offence. While exceptions to this rule exist (e.g., motive, intent, or absence of mistake), their application is never automatic.
Key points from the decision:
- Admissibility Inquiry:
Courts must undertake a deliberate admissibility hearing before allowing extrinsic misconduct evidence, even when a judge (rather than a jury) is the trier of fact. This ensures procedural fairness and prevents improper reliance on bad character evidence.
- Crown’s Obligation:
The Crown is required to articulate the specific purpose for which it seeks to introduce the evidence and establish its relevance and probative value.
- Accused’s Opportunity to Respond:
The accused must have a chance to challenge the evidence’s admissibility, including raising concerns about its potential prejudicial effect outweighing its probative value.
- Judicial Oversight:
Admitting such evidence without this inquiry undermines its presumptive inadmissibility and risks unfair prejudice. Courts cannot assume that the presence of a judge as the trier of fact mitigates the need for this process.
This decision highlights the need for strict procedural safeguards to ensure fairness in criminal trials, emphasizing that presumptively inadmissible evidence cannot simply “slip in” without careful judicial consideration.
I. INTRODUCTION
[1] After a judge-alone trial, R.P.P. was convicted of assault, contrary to s. 266 of the Criminal Code, and sexual assault, contrary to s. 271. The trial judge also found R.P.P. guilty of sexual interference, contrary to s. 151, but stayed proceedings on that charge in accordance with R v Kienapple, [1975] 1 SCR 729 [Kienapple].
[2] R.P.P. appeals against the conviction for sexual assault and the finding of guilt on the charge of sexual interference. He alleges that the trial judge erred by relying on inadmissible and irrelevant evidence when making determinations about the credibility and reliability of the witnesses who testified at his trial. R.P.P. also says that the verdict reached by the trial judge in relation to those two counts was unreasonable. He takes no issue with his conviction on the charge of assault.
[3] I have concluded that the appeal must be allowed. I agree that the trial judge used evidence of R.P.P.’s extrinsic misconduct in an impermissible way to discredit his evidence and to confirm the evidence of the complainant. This was a legal error, and it affected the outcome of the trial. As such, a new trial is required in relation to the charges of sexual assault and sexual interference. My reasons for reaching these conclusions follow.
II. BACKGROUND
[6] E.P. was R.P.P.’s stepdaughter. She was born in 2003. Her mother, T.P., was in a relationship with R.P.P. from 2005 until 2017.
[7] T.P. and R.P.P. each had children of their own prior to the start of their relationship, and they had a child together during the relationship. During much of the time period covered by the indictment, there were as many as seven children living in their home, including E.P., and her older sister, A.V.
[8] E.P. gave evidence at trial about a number of incidents that occurred over the course of several years. She said that, although she viewed R.P.P. as a father figure, she feared him because he had a quick temper and would often spank her as a form of punishment. She also testified that he slapped her across the face more than once for lying, and that there were times when he would forcefully grab her arm because he was upset with her. According to E.P., none of the face-slapping or arm-grabbing incidents occurred in the context of legitimate discipline; R.P.P. would just hit her out of anger.
[10] E.P. also described the incident that gave rise to the sexual assault and sexual interference charges. According to her testimony, this occurred some time between 2012 and early 2014. She said that she and two of her stepsiblings, M.P. and B.P., were sleeping in R.P.P. and T.P.’s bed. E.P. testified that R.P.P. was coming off of working a nightshift and arrived home in the morning. E.P. had awakened and was looking at her cell phone, but she put the phone away and pretended to go back to sleep when she heard R.P.P. enter the room. She testified that he got into the bed beside her and, while she was laying with her back toward him, he rubbed his genitals against her bottom. E.P. said she thought at first that it might have been an accident, but when she moved away, R.P.P. moved towards her and did it a second time, and then a third, so she got up and left the bed. In cross-examination, she agreed that it may have been R.P.P.’s hand that touched her, and not his genitals.
[11] E.P. also gave evidence about other occasions where R.P.P. encouraged her to walk around in the nude and to be more “comfortable” with her body. She testified that R.P.P. wanted to have one “naked day” per week, where everyone in the house would be nude, and that this was something of which she wanted no part. A.V. confirmed some of this portion of E.P.’s evidence as well. In that regard, A.V. described R.P.P. as acting in a hyper-sexualized way, including by frequently encouraging E.P. to wear fewer clothes, or to take her clothes off altogether, and by making inappropriate comments about her body. A.V. also described an incident that she said took place sometime in 2010 or 2011, where R.P.P. exposed his penis to several of the children to show them a wood tick on it, under the guise of teaching them the proper way to remove a tick from one’s body.
[12] R.P.P. testified at the trial….
….however, say that he recalled an incident where he came home from work and E.P. was sleeping in his bed with her back to him. He testified that he got into the bed and put his arm over E.P. but denied that any touching of a sexual nature occurred.
[16] The trial judge also accepted E.P.’s account of what had occurred during the bedroom incident, as well as A.V.’s evidence, finding their testimony to be both “credible and reliable”, and indicating that she “accept[ed] their evidence over Mr. R.P.P.’s evidence” where there was any conflict.
[20] The trial judge ultimately sentenced R.P.P. to a term of imprisonment of 15 months for sexual assault and imposed four months consecutive for assault. She also made various ancillary orders.
III. ANALYSIS
B. Did the trial judge err by admitting evidence of extrinsic misconduct by R.P.P., or by using such evidence for an improper purpose?
1. Extrinsic misconduct evidence – the governing principles
[26] Evidence of an accused person’s discreditable acts that do not form part of the charges for which they are on trial is presumptively inadmissible. This is because there is a danger that a trier of fact may assume, from the acceptance of extrinsic misconduct evidence, that the accused is a bad person who is more likely to have committed the offence with which they are charged. Accordingly, there is an exclusionary rule against evidence of general propensity, disposition, or bad character (R v Handy, 2002 SCC 56 at para 36, [2002] 2 SCR 908 [Handy]; R v Ukabam, 2024 SKCA 15 at paras 72–74, 434 CCC (3d) 32 [Ukabam]; R v Bone, 2024 SKCA 21 at para 69; R v Stettner, 2024 SKCA 88 at para 50; R v Z.W.C., 2021 ONCA 116 at para 96, 402 CCC (3d) 427 [Z.W.C.]; R v A.L., 2020 BCCA 18 at para 138, 385 CCC (3d) 407). Such evidence is inadmissible if it does no more than show that the accused is the type of person who is likely to have committed the offence, or if it is tendered to establish the accused’s bad character as circumstantial proof of their conduct in relation to the present charges (Handy at para 31; R v Dirksen, 2021 SKCA 6 at para 68, 398 CCC (3d) 411 [Dirksen]; Z.W.C. at para 96; R v J.H., 2020 ONCA 165 at para 53 [J.H.]; R v Roks, 2011 ONCA 526 at paras 87–89, 274 CCC (3d) 1).
[27] As with many other general rules of exclusion, this rule has exceptions. Evidence of extrinsic misconduct may be admitted if it is relevant to an issue at trial, material (in the sense that it can properly be used to prove a fact in issue other than the accused’s character), and the Crown establishes, on a balance of probabilities, that its probative value outweighs its prejudicial effect (Handy at paras 51, 55, and 69–73; Ukabam at para 75; R v Wilson, 2021 SKCA 87 at para 43, 407 CCC (3d) 199; J.H. at paras 52–54; Z.W.C. at para 96; R v Durant, 2019 ONCA 74 at para 83, 372 CCC (3d) 66). Extrinsic misconduct or bad character evidence may also be properly admitted where the accused puts their character in issue, or where it is adduced incidentally to proper crossexamination of the accused on their credibility (R v G.(S.G.), [1997] 2 SCR 716 at para 63).
[29] Even though evidence that relates to an accused person’s motive will often contain assertions of prior disreputable conduct, it is generally seen as admissible, because of its high probative value (R v Clark, 2022 SKCA 36 at para 41, 475 DLR (4th) 659). In R v Skeete, 2017 ONCA 926, 357 CCC (3d) 159, Watt J.A. explained why evidence of motive is viewed in this way:
[80] Evidence of motive is a species of circumstantial evidence which invokes a prospectant chain of reasoning. In other words, the path of reasoning is that the previous occurrence of an act, state of mind or state of affairs justifies the inference that another act was done, or state of mind or state of affairs existed at some time afterwards that is material to proof of guilt: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983), at § 43, pp. 1138-1142 and § 117, p. 1696; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 64.
[30] In some instances, where it is alleged that the accused has sexually offended against a child, evidence that the accused displayed a sexual interest in the complainant or engaged in grooming behaviour to facilitate the commission of the offence may properly be admitted notwithstanding that it is evidence extrinsic to the act or acts that form the subject matter of the charge that casts the accused in a disreputable light. As Pardu J.A. explained in R v Brissard, 2017 ONCA 891, 356 CCC (3d) 494 [Brissard], this is because such evidence may be relevant to establishing motive:
[17] Motive is a state of mind, a specific inclination to do the very act charged in relation to a particular victim. Evidence of a mental state, or motive, may be relevant to prove the accused did the act constituting the offence or it may be relevant to prove his or her intention or other mental state..
[19] Here the prior conduct tends to establish that the accused had a sexual interest in a twelve year-old girl. It was proximate in time and location, occurring repeatedly between August and December 2010 within the same home where the offence was alleged to have taken place. Importantly, the prior conduct directly involved and was aimed at the complainant.
[20] Evidence that the accused had a sexual interest in the complainant logically tends to support the position that he acted on that interest on December 23, 2010, the date of the offence alleged in the indictment. Accordingly, the evidence is relevant.
[28] Despite the presumptive inadmissibility of bad character evidence, this court has frequently held that motive evidence is admissible – even if it tends to show bad conduct: R. v. Chenier (2006), 205 C.C.C. (3d) 333 at 362-65 (Ont. C.A.), [2006] O.J. No. 489, at paras. 80-86; and R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 121-27. Evidence of prior familial violence is frequently admitted where an accused is charged with the homicide of a domestic partner. Evidence of sexual grooming to facilitate commission of a sexual assault on a child is frequently admitted, even where the conduct is outside the time frame defined by the indictment. Both are evidence of motive.
[31] I agree with this reasoning. However, just because evidence of prior discreditable conduct by the accused towards the complainant in a sexual assault case may be admissible on the basis that it is relevant to motive, that does not mean it is automatically so. Before extrinsic misconduct evidence can be admitted as evidence of motive, or on the basis of any other exception to the presumptive inadmissibility rule, it should be carefully scrutinized by the trial judge to determine whether it truly serves the purpose for which it is being tendered, and whether its probative value exceeds its prejudicial effect. As Pardu J.A. observed in Brissard:
[30] [The fact that prior conduct evidence is relevant to motive] does not mean, however, that a court can disregard the need for an admissibility inquiry in relation to this evidence. In some cases, evidence suggesting motive may be tenuous, or remote, and where it amounts to bad character evidence, the probative value may be outweighed by the risk of prejudice, particularly in a jury trial. [Emphasis by PJM]
[33] Because evidence of extrinsic misconduct is presumptively inadmissible, where the Crown seeks to introduce such evidence, it should identify the basis upon which it proposes to have the evidence admitted and the use to which it suggests the evidence should be put, so that the accused has an opportunity to respond and the trial judge can conduct the proper admissibility assessment (see, for example: Brissard at para 31; R v Tsigirlash, 2019 ONCA 650 at paras 23–27; and R v Nolan, 2019 ONCA 969 at para 35, 150 OR (3d) 647 [Nolan]). [Emphasis by PJM]
[34] As a general proposition, it is an error of law for a trial judge to admit evidence of extrinsic misconduct, and to rely on it in deciding on the accused’s guilt, without first conducting an inquiry into its admissibility (R v MRS, 2020 ONCA 667 at para 66, 396 CCC (3d) 172; Nolan at para 41)….
[35] I would also note that the fact defence counsel did not object to the admission of extrinsic misconduct evidence at trial does not obviate the need for an admissibility inquiry. Presumptively inadmissible extrinsic misconduct evidence “does not magically become admissible” simply because the defence is silent at the time it is tendered (R v Settle, 2021 ABCA 221 at para 42, 407 CCC (3d) 154). Even where defence counsel does not object, a trial judge is required, as gatekeeper of the evidence, to ensure that where such evidence is admitted, it is used only for a permissible purpose (R v Giesbrecht, 2019 MBCA 35 at paras 76–78, 373 CCC (3d) 70).
2. Applying the principles to this case
a. The impugned evidence
[38] As set out above, E.P. testified about a single incident where R.P.P. had touched her bottom while he was in the bed with her and two of her stepsiblings. That incident was the event upon which both the charge of sexual assault and the charge of sexual interference were based. E.P. also testified that there had been no other times when R.P.P. touched her in a similar way. However, during examination-in-chief, Crown counsel questioned her about other instances of inappropriate behaviour by R.P.P., as illustrated by the following exchanges:
Q Okay. Was there other times where anything like this happened with R.P.P.?
A Not touching, trying to — like getting into bed, just he would try to get me to walk around completely naked, to what he would say was being more comfortable in my body, or he would walk around completely naked.
Q So can you tell me more about that?
[39] Although A.V. did not testify that she had seen R.P.P. touch E.P. in a sexual way, she was also asked during examination-in-chief to describe other occasions where R.P.P. had acted inappropriately towards E.P. Her evidence about those incidents included the following:
Q Okay. So what — you said he called you names, what would be some examples of names that you — that you heard him call E.P.?
A Pardon my French. He would call her a stupid cunt, a lazy bitch, a slut, a mouthy little asshole, basically anything he could think of and more.
Q Okay. Now, were there — we’ve talked about physical incidents, were there incidents where you saw R.P.P. acting inappropriately in other ways towards E.P.?
A Yeah, so if the house was hot he would often tell her to take off her clothes instead of adjusting the temperature in any way. He would often encourage her to walk around in less clothing and say things like, oh, you should be confident with your body, and things like that, even though she was at an age that that wasn’t a thing she needed to be showing off. Honestly, at a certain age I think the pulling down the pants and spank — I don’t think that’s ever appropriate, but I think that that turned further than physical. Just the things he said were gross, he just hypersexualized everything, like everything had to be sexual with all the siblings. And because she was one of the younger ones and she thought he was his — her dad for a little bit, she just — she trusted that and there were things — yeah, like when he showed us his penis with the woodtick on it and everybody had to crowd around and look at it.
Q Okay. Fair enough. Okay. Now, you talked about him — something about him showing his penis with a woodtick on it?
A Yeah, so he said that we had to learn how to take a woodtick off, which we are born and raised in Saskatchewan, we know how to take a woodtick off. But he took out his penis and was showing us where the woodtick was and how to take it off, and I said, like this is so uncomfortable, we should not be doing this, and he said, oh, it’s for health, shut up and quit your complaining. And then said I was, something about being dramatic, and then we all had to sit there and watch as he like took his sweet time and played with himself.
[40] Notably, prior to embarking on the foregoing lines of questioning, Crown counsel did not apply to adduce evidence of extrinsic misconduct or otherwise alert the trial judge to the nature of the evidence or the purported purpose for which it was being tendered. Nor did R.P.P.’s counsel object to the introduction of the evidence. The trial judge also gave no indication that she recognized the foregoing evidence as extrinsic misconduct evidence and, as such, she conducted no on-the-record assessment of whether it could be admitted for a permissible purpose. Nor did she weigh its probative value against its prejudicial effect. The evidence was simply admitted without comment from anyone.
[41] In addition to the things A.V. said in her examination-in-chief about R.P.P.’s past discreditable behaviour, she also provided evidence of that nature during cross-examination, including saying that: (i) R.P.P. had choked her, choked E.P., and choked another one of their siblings; (ii) she had called Social Services multiple times to report R.P.P. for “physical abuse, sexual abuse, and neglect and emotional abuse”; (iii) R.P.P. was “an awful abuser” and that “both of his ex-wives can say that too”; (iv) R.P.P. was a less than adequate father who spent most of his time at home drinking and using drugs; and (v) R.P.P. had assaulted her sibling D.V., by burning his hand, dragging him around by the ear, and hitting him with a wooden spoon. Much of that evidence came in response to a line of questioning in which defence counsel suggested to A.V. that she had concocted her story to exact some form of revenge against R.P.P.
[43] In cross-examination, Crown counsel questioned R.P.P. in relation to the evidence E.P. and A.V. had provided about him encouraging E.P. to remove her clothes, and about the incident with the wood tick, as reflected in this exchange:
Q Okay. So, Mr. R.P.P., I am going to suggest to you that there would be times where you would walk around the house … naked?
A No.
Q And there would be times where you would encourage E.P. to also be naked?
A No.
Q And you would do that because you wanted to encourage her to be comfortable with her chubby little body?
A No.
Q And you would — at one point you had your penis out and were showing the children how to take a woodtick off?
A No. …
c. The trial judge’s use of the impugned evidence
[47] The trial judge referred to the evidence of R.P.P.’s prior conduct at several points in her decision. First, when conducting a review of the evidence pertaining to the allegations of sexual assault and sexual interference, she said:
[48] The trial judge also referred to the extrinsic misconduct evidence when she summarized the parties’ arguments, stating that she understood the Crown’s position to be that “A.V. corroborated much of E.P.’s evidence, including Mr. R.P.P.’s anger and assaultive and sexualized behaviour”, and that R.P.P.’s position was that E.P. and A.V. had exaggerated and fabricated their evidence.
[50] Then, the trial judge turned to the testimony of E.P. and A.V., explaining why she found their evidence to be both credible and reliable, and describing how she resolved the conflicts in the evidence concerning the bedroom incident. As part of her reasoning in that respect, she referred to what she found to be a consistency between E.P.’s account of the bedroom incident and the evidence that E.P. and A.V. provided about R.P.P.’s past behaviour. In that regard, she said:
There was internal consistency in E.P.’s evidence, as well as A.V.’s, that there has been an incident in keeping with Mr. R.P.P.’s sexualized behaviour around the children, including E.P. Mr. R.P.P. encouraged the children, including E.P., to walk around the house naked. Additionally Mr. R.P.P. exposed his penis to the children under the ruse of showing them how to remove a tick.
Based on the above I accept E.P.’s evidence as credible and reliable, as well as A.V.’s evidence. Where Mr. R.P.P.’s evidence conflicts with E.P. and A.V.’s testimony I accept their evidence over Mr. R.P.P.’s evidence. There was no evidence that E.P. and A.V. discussed the details of the allegations and I reject the suggestion that there was collusion. Mr. R.P.P. inquired as to whether A.V. had concocted this story, but her response was, “There was simply no need to because E.P. was now safe and living with her.”
d. The necessary admissibility inquiry was not conducted
[52] In the portions of their testimony that are implicated in this appeal, E.P. and A.V. provided evidence about R.P.P. doing such things as encouraging E.P. to take off her clothes, gratuitously exposing his penis under the guise of demonstrating how to remove a wood tick, and otherwise acting in a sexualized way around the children. This testimony was evidence which tended to show that R.P.P. had acted in a sexually inappropriate fashion towards, and in the presence of, E.P. and her siblings and stepsiblings on occasions other than those that formed the subject matter of the charges he was facing. Such acts would undoubtedly be viewed as disreputable by a reasonable person.
[60] In the present case, reading the trial judge’s reasons holistically, functionally, contextually, and presuming her knowledge of the law, the phrase “there was internal consistency in E.P.’s evidence, as well as A.V.’s, that there has been an incident in keeping with Mr. R.P.P.’s sexualized behaviour around the children” is problematic. In my respectful view, there is simply no reasonable way of reading that phrase other than as a conclusion by the trial judge that E.P.’s account of what occurred in the bedroom was credible, and that R.P.P.’s account was not, because E.P.’s version of events was consistent with the way R.P.P. generally acted around the children. In other words, it shows that the trial judge used the extrinsic misconduct evidence of R.P.P.’s “sexualized behaviour around the children” not as evidence of motive, but as evidence of propensity in her credibility assessment. That is an impermissible use, and it amounts to a recognized legal error in the trial judge’s fact-finding process.
[61] As such, while it would have been possible, on the evidence, for the trial judge to have rendered the same verdict in the absence of the legal errors that I have identified, it cannot be said that she would inevitably have rendered the same verdict absent those errors. Accordingly, the curative proviso does not apply, the conviction on the sexual assault charge and the finding of guilt on the sexual interference charge must be set aside, and a new trial must be held.
IV. CONCLUSION
[62] For the foregoing reasons, I would allow the appeal, set aside the conviction in relation to count 2 of the indictment, as well as the finding of guilt and conditional stay on count 3. I would order a new trial on those counts.
[November 13, 2024] Possession and Trafficking as a Party [Watson, Slatter, and Shaner JJ.A.]
AUTHOR’S NOTE: This case is notable for its succinct articulation of an important legal principle: mere presence is not enough to establish culpability as a party to an offense. The statement, “merely being a passenger in Bartram’s vehicle while he delivered drugs did not make her a party to the trafficking offence,” is a straightforward yet potentially vital proposition for defence lawyers.
Key Implications:
- No Automatic Guilt by Association:
- A person’s presence at the scene of a crime does not automatically make them a party to it. There must be evidence of active participation, encouragement, or assistance in the offence.
- Mens Rea and Actus Reus:
- To establish someone as a party, the prosecution must prove that the individual had the requisite intent (mens rea) and engaged in conduct (actus reus) that facilitated or supported the offence.
- Defending Against Overreach:
- Defense counsel can use this principle to argue against overbroad charges where the accused’s mere proximity to criminal activity is cited as evidence of involvement.
Application in Practice:
This principle reinforces that a passive presence, such as being a passenger in a vehicle, does not equate to aiding, abetting, or counseling an offense unless accompanied by other incriminating factors. Lawyers may leverage this case to challenge weak or circumstantial evidence attempting to link a defendant to a crime solely due to their association with the principal offender.
The Court:
[1] The appellant challenges her convictions for various offences involving guns and drugs seized from a motel room. She was found to be a party to the crimes of one Bartram, who, to the knowledge of the trial judge, had entered guilty pleas. There was a detailed agreed statement of facts as well as testimony from police witnesses and from the appellant and Bartram.
[2] The appellant was certainly tangled up in the actus reus evidence. But the conclusion whether she had been proven beyond a reasonable doubt to be a party to possession of the drugs and guns by a sufficient degree of personal participation and of knowledge and control under section 4(3) of the Criminal Code was a live issue at trial.
[4] One problem is that the trial judge, after counsel had finished with their examination of the appellant, engaged in a series of questions of the appellant about her driving one of two vehicles while Bartram drove the other. She admitted driving one vehicle (which was a stolen vehicle) for about an hour. But she testified that she did not really know what she was doing in that respect. She was pressed by the trial judge as to steps she took to drive that vehicle. When the trial judge said, “It’s not a hard answer, you know”, she replied “It was not what you asked me.” Bartram testified that around that time he was teaching her how to drive and he let her drive on back roads when he needed her to drive.
[5] Unfortunately, when the trial judge later assessed the appellant’s credibility, his own crossexamination of her was given crucial significance in his reasons given several months after the trial. In those reasons he said, “While the accused feebly tried to convince the Court that she could not drive a motor vehicle, there was clear evidence both from her and Bartram that she did drive during the time that they were together…”. The trial judge’s description of her evidence under questioning by him was given as a key reason for his finding her guilty. He immediately followed that description by saying “Based on this evidence, which I accept, I find she was also a party under section 21(1)(b) of the Criminal Code to possessing methamphetamine for the purpose of trafficking.” Disbelief of the appellant was not makeweight. Moreover, his description of the evidence was imprecise.
[6] The second problem is akin to the first. The trial judge inferred that she was a party to Bartram’s burglary of a residence because after he had done the burglary and had stolen the vehicle that belonged to the residence occupants, Bartram had the appellant drive that vehicle back to the motel. Bartram testified the vehicle he had been using was loaded up with his own property and some of the appellant’s property (including a bicycle) and it was “pretty full”. A police officer saw the appellant and Bartram taking unspecified items into the motel room. Bartram added that when the property was in the motel room, “She kept out of my stuff.” And in Crown cross, Bartram said she understood not to touch his guns.
[7] The trial judge reasoned that “[s]he was involved as much as he was in the break-in because she admitted driving the stolen Jackson motor vehicle to the motel after the break-in.” The trial judge also attached major significance to what he believed was evidence by an observing police officer from a distance that the appellant and Bartram unloaded stuff from both vehicles. What the Constable said was “I — I can only see shadows ’cause it was very dark, but I could see them taking stuff out of the truck and out of the SUV and — and bringing it into the — into the — the room number 4. There’s no lighting. The lighting there is very poor, so …”. In other words, there was no clear evidence as to who moved what from what vehicle.
[8] But the trial judge concluded, “They each exercised possession and control over the stolen property.” And he later added, “Since she was a participant in moving stuff from the vehicles into the motel room, it matters not if they belong to Bartram, as by moving them she exercised control over them and when doing so was a party under section 21 of the Criminal Code.”
[9] The trial judge also acknowledged there was no evidence how the guns got into the room which was perhaps on a different date. Nonetheless, he said they were in plain view in the room, and “I find that the accused had the ability and right to exercise control over them.” Further the evidence was that only one of the firearms was in plain view, and both the appellant and Bartram testified that she knew not to touch his firearms.
[10] The basis for her conviction for possession for the purposes of trafficking is not clear from the reasons. The appellant acknowledged being in possession of a small amount of methamphetamine for personal use but denied any control of the larger quantity admittedly possessed by Bartram. Even if some drugs were in plain view that did not mean that the appellant had control of them, and in any event the police officer testified that some of the drugs were in a plastic container, the contents of which could not be ascertained without opening it. The trial judge made no clear finding that the appellant knew what was in the container, much less that she had control of its contents. Further, merely being a passenger in Bartram’s vehicle while he delivered drugs did not make her a party to the trafficking offence.
[11] There were significant evidential gaps in the foregoing evidence and in the trial judge’s analysis of the case. The trial judge’s disbelief of the appellant was not able to fill those gaps.
[12] In the result, we are persuaded that the trial judge did not reach a reasonable verdict because he did not follow appropriate lines of reasoning. The appeal is allowed, the convictions are quashed, and acquittals are entered.
