3 At the time of the search and seizure Thelland was upstairs in his room and the respondent was in the living room with his girlfriend. The bag containing the drugs was found under a couch in the living room where the respondent and his girlfriend had been sitting. The only identifiable fingerprints on the bag were those of the respondent. The police also found LSD blotter paper located in stereo speakers in Thelland's bedroom which was very similar in design to the blotter paper containing the LSD found under the couch. A five-gram vial of hash oil was also discovered in Thelland's bedroom, along with ten "hits" of LSD in a wallet that Thelland was using. The LSD was on paper of the same design as that found in the living room. In the same wallet, the police discovered a list of names with various amounts of money opposite each name.
4 Thelland told the police that he was the owner of the bag containing the drugs which were found under the couch. Furthermore, while Thelland was being transported to the police station, he advised one of the officers that he sold LSD in bulk lots of 25 "hits". After being cautioned, Thelland signed an inculpatory statement reiterating that he was the owner of the contents of the zip-lock bag. Thelland was jointly charged with the respondent.
5 Thelland swore an affidavit admitting liability for the drugs in order to support the respondent's application for bail. However, eight months after his arrest, Thelland went to the police station and recanted all his previous statements. The charges against the respondent and Thelland were severed. Thelland was tried first before Pardu J. of the Ontario Court (General Division), and was acquitted of the charge of possession for the purpose of trafficking.
6 At the respondent's trial, which was also held before Pardu J., Thelland testified on behalf of the Crown. The explanation offered by Thelland for lying on his previous confessions was that he was a friend of the respondent. Thelland stated that during the police search, while in the kitchen, he told the respondent that he would take the blame for the offences. However, upon later realizing how serious the charge was, Thelland concluded that "it wasn't worth it". Thus, he went to the police and recanted his confessions. Thelland also stated that the drugs belonged to the respondent. He indicated that the basis of this knowledge was that he had seen the respondent dealing in drugs in the past.
7 At trial, Thelland stated that he had no knowledge of the LSD border paper found in his room and that the LSD paper must have already been in the speakers when he purchased them from a friend, whom he declined to name. Thelland also testified that the wallet he was using belonged to Paciocco and he had no knowledge of the list of names found in it. He further denied that he was the owner of the LSD found under the sofa. He testified that he was on welfare and could not afford to buy a large quantity of drugs. However, Thelland admitted that the hash oil and the ten "hits" of LSD found in his room were for his personal use.
8 Thelland agreed that it was possible that the zip-lock bag found under the couch could have come from a drawer in the kitchen to which everyone had access, although there was no evidence whether the respondent did, in fact, handle plastic bags in the kitchen. Paciocco was not called by the Crown and the respondent did not testify.
9 The respondent was convicted on both counts and was sentenced to imprisonment for eight months on the first count and to a consecutive term of two months on the second count. The respondent appealed his conviction and applied for leave to appeal his sentence. The majority of the Court of Appeal, Finlayson J.A. dissenting, allowed the appeal, set aside the conviction and directed a new trial at the discretion of the Crown: (1993), 87 C.C.C. (3d) 43, 68 O.A.C. 58.
II. Relevant Statutory Provisions
Food and Drugs Act , R.S.C., 1985, c. F-27
46. In this Part,
"possession" means possession within the meaning of subsection 4(3) of the Criminal Code ;
48. (1) No person shall traffic in a restricted drug or any substance represented or held out by the person to be a restricted drug.
(2) No person shall have in possession any restricted drug for the purpose of trafficking.
(3) Every person who contravenes subsection (1) or (2) is guilty of an offence and liable
(a) on summary conviction, to imprisonment for a term not exceeding eighteen months; or
(b) on conviction on indictment, to imprisonment for a term not exceeding ten years.
Criminal Code , R.S.C., 1985, C-46 .
4. . . .
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; . . .
III. Judgments Below
A. Ontario Court (General Division)
10 After reviewing the evidence, Pardu J. noted that the credibility of Thelland was "substantially tarnished by his multiple falsehoods". She also concluded that the blotter paper borders and the paper containing the ten "hits" of LSD found in Thelland's bedroom did "not tie Thelland to the LSD found in the living room although some of the paper was of a similar design as there is no indication as to the extent of distribution of this type of paper". Furthermore, Pardu J. found that the alleged debt list in the wallet used by Thelland seemed to refer to contraband cigarettes and not drugs.
11 In the trial judge's view, the issue to determine was whether a court ought to infer possession by the accused of the drugs from the presence of his fingerprints on the plastic bag. She referred to the case of R. v. O'Keefe (1958), 121 C.C.C. 273 (Ont. C.A.), where Laidlaw J.A. held that "[t]he mere fact that a person has handled stolen goods and left his fingerprints on them is not conclusive proof that he had possession in law of them" (p. 279). On the other hand, in O'Keefe, Morden J.A. indicated that if the appellant "had called no evidence explaining the presence of his fingerprints, then he would have run the risk of the Judge drawing the inference that he had had possession in law and finding him guilty" (p. 283). Pardu J. then concluded as follows:
There is no evidence Lepage did handle plastic bags in the drawer in the kitchen, only that he could have had access to the drawer. I note also that these drugs were obvious contraband unlike a stolen article which could be handled innocently in a multitude of ways. Having regard to all of the evidence I am persuaded, notwithstanding the differences in Thelland's evidence, that the Crown has proven beyond a reasonable doubt that Lepage had possession of the drugs, and having regard to the quantity that such possession was for the purpose of trafficking. A conviction on Count 2 will follow as a result.
B. Ontario Court of Appeal (1993), 87 C.C.C. (3d) 43
(1) Weiler J.A. (for the majority)
12 Weiler J.A. agreed with the argument of the respondent that the decision in O'Keefe, supra, where the accused's fingerprints were found on the stolen article itself, should be distinguished from this case. Here, the respondent's fingerprints were found on the bag, but there was no evidence that his fingerprints were on the actual LSD blotter paper found inside the bag. Weiler J.A. noted that the bag itself could have been handled in a variety of innocent ways prior to the LSD paper being placed in it. The trial judge failed to appreciate this distinction.
13 In this regard, Weiler J.A. referred to the case of R. v. Sweezey (1974), 20 C.C.C. (2d) 400 (Ont. C.A.), which held that the reasoning in O'Keefe did not apply where the fingerprints were not on the stolen articles themselves, but merely on a slip which was placed in the same package as the stolen articles. Weiler J.A. then held (at p. 49):
In this case, the evidence of Lepage's fingerprints on the bag was not sufficient to warrant the inference that he was in possession of the paper containing the L.S.D. In the circumstances, therefore, the trial judge erred when she drew an inference from the fact that the accused chose not to testify: see R. v. Johnson (1993), [12 O.R. (3d) 340 (C.A.), at p. 348]. It cannot be said that, absent this error, the trial judge would have reached the same conclusion.
14 Weiler J.A. allowed the appeal, set aside the conviction and ordered a new trial at the discretion of the Crown. In the event of a new trial, Weiler J.A. noted that a major portion of Thelland's evidence-in-chief appeared to be evidence of the respondent's bad character. After observing that there was no evidence that Thelland actually saw the respondent place the paper containing LSD in the bag, place the bag under the sofa or deal LSD from the bag, Weiler J.A. concluded as follows (at p. 50):
It is a fundamental principle of common law that the prosecution is not allowed to prove that an accused has committed the offence with which he is charged by evidence that he is a person of bad character and one who is in the habit of committing crimes . . . . Although no objection was taken to this evidence at trial, and the appellant's counsel has not specifically raised this as a ground of appeal, a trier of fact is entitled to accept only evidence which has been properly admitted. There is no indication that this evidence was proffered for any purpose other than to indicate that Lepage was a person of bad character and therefore likely to have committed the offence.
(2) Finlayson J.A. (dissenting)
15 Finlayson J.A. was of the view that the respondent had been convicted on the basis of two sources of evidence: the testimony of Thelland and the respondent's fingerprints on the exterior of the bag. He found that the trial judge dealt properly with both of these sources and that the Court of Appeal should not interfere with her verdict. With respect to the first source, Finlayson J.A. held (at p. 45):
It is true that the learned trial judge did not identify what specific portions of Thelland's evidence that she did accept. It would appear, however, that despite recognizing that "the credibility of Thelland is substantially tarnished by his multiple falsehoods", she did believe his testimony at least to the extent that he did not own the L.S.D., otherwise she would have been obliged to acquit the appellant.
16 Finlayson J.A. disagreed with the majority that much of Thelland's testimony was evidence of the respondent's bad character. He acknowledged that this evidence did cast a shadow on the character of the respondent but he found that it was highly probative with regard to the matters at issue in the case. Where evidence is relevant to the principal facts in dispute, it should be admitted with regard to possible prejudice. Finlayson J.A. stated (at p. 46):
Thelland was a friend of the appellant and lived with him in the same house. He stated that the appellant was a drug dealer and that he owned the drugs in question. This evidence is highly probative to a charge that the appellant had these drugs in his possession for the purposes of trafficking. Any objection would go to possible hearsay with respect to some of it and to weight with regard to all of it. Indeed, a vigorous cross-examination exposed these very frailties in this portion of Thelland's testimony. It is probably for this reason that no objection was made at trial or on appeal to the admissibility of this evidence.
Finlayson J.A. held that the trial judge did not accept Thelland's evidence without considering its weaknesses.
17 Finlayson J.A. then considered the trial judge's findings concerning the respondent's fingerprints on the bag. He noted that the trial judge implicitly drew an adverse inference from the respondent's failure to testify and offer an explanation for the presence of his fingerprints. He dismissed the argument that these fingerprints could not be used to support the inference that the respondent was in possession of the bag's contents. Finlayson J.A. then held (at pp. 46-47):
With great deference to those who think otherwise, it is my opinion that the presence of the appellant's prints on the outside of a clear package which contains nothing but drugs is prima facie proof of his possession of the package and its contents. The court does not have to speculate as to how the appellant's prints could have travelled innocently to the package alone. I support the reasoning of the trial judge that "these drugs were obvious contraband unlike a stolen article which could be handled innocently in a multitude of ways".
The verdict under appeal is not unreasonable. Additionally, the appellant did not testify and the trial judge was entitled to draw the adverse inference that he could not have given a sustainable explanation for the presence of these drugs in his home and with his fingerprints on the package. The trial judge properly instructed herself as to the law on this issue and this court should not interfere with the exercise of that judgment.
18 Finlayson J.A. stated that it was open for the trial judge to find, on all the evidence, that the appellant was in possession of the bag of LSD and that it was for the purpose of trafficking.
IV. Issues
1.Did the majority of the Court of Appeal err in concluding that the trial judge erred in finding that the Crown had proven the respondent's possession of the LSD from all of the evidence presented at the trial, including the evidence of the presence of the respondent's fingerprints on the clear bag which contained the LSD?
2.Was the evidence of Thelland inadmissible character evidence?
3.Was the verdict of the trial judge unreasonable or unsupported by the evidence pursuant to s. 686(1) (a)(i) of the Criminal Code ?
V. Analysis
19 The key issue to determine in this case is whether the trial judge was entitled to infer that the respondent had possession of the LSD based on the presence of his fingerprints on the plastic zip-lock bag, as well as any other evidence at trial. The appellant submitted that the totality of the evidence supported the inference of guilt beyond a reasonable doubt and that the Court of Appeal erred in substituting its view of the evidence for that of the trial judge. The respondent's basic position was that the fingerprint evidence alone could not justify an inference of guilt and the trial judge erred in drawing an adverse inference from the respondent's failure to testify.
A. Was the trial judge entitled to infer possession from the presence of the fingerprints?
20 In order to determine whether the trial judge erred in convicting the respondent, it is necessary to analyze whether she was entitled to infer possession of the narcotics from the existence of the fingerprints found on the bag or any other evidence.
21 In her reasons, Pardu J. placed much emphasis on the decision of O'Keefe, supra. In that case, the accused was charged with breaking and entering and committing theft and the Crown relied on the doctrine of recent possession to support its case. The only evidence of possession of the stolen goods was the presence of the accused's fingerprints on the items stolen. The accused offered the explanation that he had innocently handled the goods at one time. Although the Court of Appeal was unanimously of the view that the trial judge erred in failing to give effect to this explanation which might reasonably have been true, there was a difference of opinion with respect to the effect of the fingerprint evidence.
22 Laidlaw J.A. had this to say regarding the fingerprint evidence, at p. 279:
The mere fact that a person has handled stolen goods and left his fingerprints on them is not conclusive proof that he had possession in law of them. That fact alone does not raise any presumption that they came into his possession in a dishonest or unlawful manner. The inference cannot be drawn from that fact alone that he had any control whatsoever in respect of the stolen goods. Indeed, the mere fact of handling stolen goods and leaving fingerprints on them is equally consistent with innocence as with any wrongful act in respect of them.
In my opinion, the Crown failed to establish a prima facie case against the accused because there was no sufficient proof that any of the stolen articles were in the possession of the accused at any time.
23 Although concurring in the result, Morden J.A. concluded as follows, at pp. 282-83:
In the case at bar at the close of the Crown's case it had been established that the appellant's fingerprints were on the stolen articles. This was evidence that he had handled them, and from this it could be inferred that he had had, perhaps for a very short space of time, physical possession of the goods. It is at this point that I differ, with great respect, from the persuasive reasoning of my brother Laidlaw. In my opinion, the Crown had made out a prima facie case of possession in law against the appellant.
. . .
From the proof of the appellant's fingerprints upon the stolen articles, an inference could have been drawn that he had had possession in law. Whether or not such an inference should be drawn in any particular case is a question for the jury, and in this case for the trial Judge only, after all the evidence had been adduced.
. . .
The secondary onus, that of adducing evidence, passed to the appellant. If he had called no evidence explaining the presence of his fingerprints, then he would have run the risk of the Judge drawing the inference that he had had possession in law and finding him guilty. [Emphasis added.]
24 LeBel J.A. basically agreed with the above passage and held that, in the circumstances, an explanation of the accused was required as it was shown at least prima facie that he had possession.
25 In my view, whether or not the inference of possession from the presence of fingerprints can be drawn is not subject to a hard and fast rule. Rather, as Morden J.A. noted, it is a question of fact which depends on all of the circumstances of the case and all of the evidence adduced. In this regard, I agree with the following statement of Fairgrieve Prov. J. from R. v. Mehrabnia (1993), 26 C.R. (4th) 98 (Ont. Ct. (Prov. Div.)), at p. 106:
Contrary to Mr. Dolhai's submission concerning the effect of O'Keefe, I think that the principle that emerges from all these cases is that whether an accused's fingerprint on an article will support an inference that he was in possession of the article will depend on the particular circumstances of the case.
26 In the present case, after referring to the two opposing views expressed above in O'Keefe, Pardu J. noted that there was no evidence in this case that the respondent innocently handled the plastic bags, only that he could have access to the kitchen drawer where the bags were kept. Contrary to the contention of the respondent, I do not interpret this observation as an indication that the trial judge was relying on the failure of the respondent to testify or to offer an explanation as a basis upon which to draw an inference of possession. Rather Pardu J., in this part of her judgment, was addressing the question as to whether the inference could, in law, be drawn. Applying the majority view in O'Keefe, an inference was permissible in the absence of an explanation. While the absence of explanation was strictly unnecessary to the determination that an inference could be drawn in this case, Pardu J. came to the right conclusion on this question.
27 Having concluded correctly that the inference could as a matter of law be drawn, Pardu J. went on to draw the inference, as she was entitled to do, on the basis of all the evidence including, to some extent, the evidence of Thelland. She concluded as follows:
Having regard to all of the evidence I am persuaded, notwithstanding the differences in Thelland's evidence, that the Crown has proven beyond a reasonable doubt that Lepage had possession of the drugs, and having regard to the quantity that such possession was for the purpose of trafficking. A conviction on Count 2 will follow as a result. [Emphasis added.]
28 Thus, the trial judge concluded that all of the evidence adduced entitled her to conclude beyond a reasonable doubt that the respondent was in possession of LSD for the purpose of trafficking.
29 Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent's failure to offer an explanation for the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to draw such an inference in any event. The following passage from R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at pp. 347-48, is on point:
No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), "circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned". That point, it seems to me, can only be the point where the prosecution's evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence. It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise. When linked in that fashion to the strength of the Crown's case, the failure to testify is no different than the failure to call other defence evidence. . . . If the Crown's case cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent: R. v. Boss (1988), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.), at p. 542 C.C.C., p. 42 [sic] C.R. But the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can be inferred: R. v. Armstrong (1989), 52 C.C.C. (2d) 190 . . . As Doherty J. pointed out in R. v. Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused's failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced. [Emphasis added.]
I note that the Johnson decision was cited with approval by this Court in R. v. François, [1994] 2 S.C.R. 827.
30 In this case, since the totality of the evidence enabled the trial judge to infer guilt beyond a reasonable doubt, the absence of any explanation from the respondent merely failed to provide any basis to conclude otherwise.
31 It was also argued, as Weiler J.A. found, that there is a distinction between fingerprints on a bag and fingerprints found on the blotter paper itself, on which the LSD was contained. However, this distinction is merely another factor to be taken into account in deciding whether or not to draw the inference of possession based on the totality of the evidence adduced. Clearly, the fact that the respondent's fingerprints were on the bag containing the LSD is highly probative of possession of the narcotics. Pardu J. was entitled to consider this, along with other evidence, in reaching her verdict.
32 In my opinion, the conclusion reached by the trial judge did not constitute an error unless she relied on inadmissible evidence in drawing the inference, or the inference of guilt was unreasonable or unsupported by the evidence within the meaning of s. 686(1) (a)(i) of the Criminal Code . I will next consider each of these issues.
B. The admissibility of Thelland's evidence
33 In support of the trial judge's conclusion, it appears that she relied at least in part on the testimony of Thelland. The following portion of Thelland's testimony is relevant for the purpose of inferring whether the respondent was in possession of the LSD:
Q. What do you know about that LSD?
A. I know it belonged to John Paul Lepage.
Q. How do you know that?
A. He's the only one that was the major dealer in the house.
Q. When you say major dealer, what do you mean by that?
A. Well, quantity.
Q. Of what?
A. Of any narcotic that was coming in.
Q. What can you tell me about this specific bundle of drugs?
A. It belongs to John Paul Lepage.
Q. How do you know that?
A. Because I lived at the house. I knew that he was dealing.
Q. How did you know that?
A. Well, I've seen. Most of his friends are my friends, too, and I've seen all kinds of it around. So I knew basically who he was hanging around with and stuff like that, too.
Q. Were these narcotics yours?
A. No, they were not. [Emphasis added.]
34 The respondent asserts that the evidence of Thelland ought not to have been admissible as it was evidence of bad character adduced for the purpose of showing that the respondent was the type of person who would possess LSD.
35 It is true that the testimony of Thelland can be construed as character evidence relevant to show the disposition of the respondent or his propensity to traffic in narcotics. Clearly, this would be an inadmissible purpose for adducing the evidence. However, evidence which demonstrates bad character may nonetheless be admissible if it is also relevant to an issue at trial, apart from propensity or disposition. In R. v. B. (F.F.), [1993] 1 S.C.R. 697, Iacobucci J. explained the appropriate principles, at pp. 730-31:
The basic rule of evidence in Canada is that all relevant evidence is admissible unless it is barred by a specific exclusionary rule. One such exclusionary rule is that character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. As Lamer J. (as he then was) wrote for this Court in Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 201-2:
Thus came about, as a primary rule of exclusion, the following: disposition, i.e., the fact that the accused is the sort of person who would be likely to have committed the offence, although relevant, is not admissible. As a result evidence adduced solely for the purpose of proving disposition is itself inadmissible, or, to put it otherwise, evidence the sole relevancy of which to the crime committed is through proof of disposition, is inadmissible.
However, evidence which tends to show that the accused is a person of bad character but which is also relevant to a given issue in the case does not fall within this exclusionary rule. As Lamer J. went on to write at p. 202:
This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g. identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other.
Accordingly, evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect. [Emphasis in original.]
36 In the present case, the testimony of Thelland is not merely relevant to the character of the respondent, but is also relevant to possession which is a key issue in the case. In the circumstances of this case, there were three people living in the house and it was clear that the drugs belonged to one of the three. Surely, it is relevant to the issue of possession to have one of the three testify that the drugs were not his and furthermore, indicate that the respondent is in the business and therefore it is more likely that he was the owner of the drugs.
37 The evidence is not being adduced solely for the purpose of showing that the respondent is likely to have committed the crime because he is the type of person who would be likely to possess drugs. As I stated above, this would be inadmissible character evidence based on the criminal disposition or propensity of an individual. Rather, the evidence of Thelland merely illustrates that someone who is in the business of dealing narcotics has more opportunity and is more likely to be in possession of narcotics. In this regard, the comments of Finlayson J.A., in dissent, are apposite (at pp. 45-46):
Weiler J.A. is of the view that much of Thelland's testimony was inadmissible, being evidence of bad character. She criticizes this evidence as being directed at the [respondent's] disposition rather than his specific ownership of the drugs. I respectfully differ in this regard: I accept that Thelland's evidence did cast a shadow on the character of the accused, but it was, I think, highly probative with regard to the matters at issue in this case. Where evidence is very relevant to the principal facts in dispute, it should be admitted with due regard to its possible prejudicial effects. . . .
Thelland was a friend of the [respondent] and lived with him in the same house. He stated that the [respondent] was a drug dealer and that he owned the drugs in question. This evidence is highly probative to a charge that the [respondent] had these drugs in his possession for the purposes of trafficking. Any objection would go to possible hearsay with respect to some of it and to weight with regard to all of it. Indeed, a vigorous cross-examination exposed these very frailties in this portion of Thelland's testimony. [Emphasis added.]
38 I agree with the above comments. Furthermore, it should be noted that no objection was taken to the admissibility of Thelland's evidence at trial or at the Court of Appeal. This is another indication which supports the conclusion that the evidence was not simply character evidence, but was admissible due to its probative value regarding possession. Given the manner in which the evidence was introduced, I am not prepared to find that it was misused as evidence of disposition merely. Provided its use was so limited, its probative value overbore its prejudicial effect. Therefore, the trial judge was entitled to consider Thelland's testimony, along with the fingerprint evidence, in deciding whether, on the facts of the case, an inference of guilt should be drawn against the respondent.
C. Was the verdict unreasonable or unsupported by the evidence pursuant to s. 686(1) (a)(i) of the Criminal Code ?
39 It does not appear that the majority of the Court of Appeal held that the verdict of the trial judge was unreasonable or could not be supported by the evidence since a new trial was ordered. If the Court of Appeal had concluded that the verdict fell within the terms of s. 686(1) (a)(i) of the Criminal Code , then an acquittal would have been the necessary result. As well, Finlayson J.A. specifically held that the verdict under appeal was not unreasonable.
40 Although the respondent was entitled to rely on s. 686(1)(a)(i) in order to support the judgment below, in my view, it cannot be said that the verdict was unreasonable. Perhaps if the Crown's case rested solely on the fingerprints found on the bag containing the LSD one could conclude that there would be insufficient evidence to prove guilt beyond a reasonable doubt. However, in the case at bar, the fingerprint evidence was also supplemented, to some extent, by the evidence as to where the bag was found as well as the testimony of Thelland. Taken as a whole, there was evidence upon which the trial judge could reasonably have convicted the respondent.
41 I should note that there is some question concerning which portions of Thelland's testimony were accepted by the trial judge and what weight she gave to his evidence in light of her conclusion that Thelland's credibility "is substantially tarnished by multiple falsehoods". However, I agree with the conclusion of Finlayson J.A. (at p. 45) that the trial judge did believe Thelland's testimony "at least to the extent that he did not own the L.S.D., otherwise she would have been obliged to acquit" the respondent. Pardu J. does not explain why she accepted some of Thelland's evidence in view of her comment about his tarnished credibility. Given the importance of Thelland's testimony in supplementing the fingerprint evidence to support the verdict, it would have been preferable for the trial judge to have explained more clearly which part of his evidence she accepted and for what reasons. Nonetheless, her failure to do so does not amount to an error of law. See R. v. Morin, [1992] 3 S.C.R. 286, at p. 296. Pardu J. was, as a matter of fact, entitled to accept at least part of Thelland's evidence notwithstanding his inconsistent statements. I am satisfied that before accepting the evidence of Thelland she properly considered its frailties and found on all the evidence that the case had been proved beyond a reasonable doubt. I cannot say that in the circumstances this was a verdict that no jury, properly instructed and acting judicially, could reasonably have rendered.
VI. Disposition
42 In the result, I would allow the appeal and restore the conviction.
//Major J.//
The reasons of Cory and Major JJ. were delivered by
43 Major J. (dissenting) -- It is well known that every person charged with an offence in Canada is entitled to the benefit of the fundamental principles of the Canadian criminal justice system, two of which are the presumption of innocence that endures until the state has proven that person guilty of the crime charged beyond a reasonable doubt, and the right of the accused to remain silent.
44 While the presumption of innocence has endured in our criminal justice system since the country's inception, it was clearly identified and recognized in Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.).
45 The rationale for this principle was understood long before then. As early as the 18th century, Blackstone asserted his oft-repeated statement that "it is better that ten guilty persons escape than that one innocent suffer" (W. Blackstone, Commentaries on the Laws of England (1897), Book IV, c. 27, at p. 358).
46 If our society accepts this cost for their protection from prosecution, it follows that guilty persons will not be convicted when the evidence fails to meet the established benchmarks.
47 The state faces substantial hurdles in obtaining a conviction but, so long as we are guided by these principles, only proof and not suspicions will suffice.
48 These principles remain in force throughout the entire criminal process. Simply stating the principles is insufficient. They must be fully applied in every prosecution. They cannot be lightened or varied, let alone disregarded. It is my respectful conclusion that the accused was deprived of these rights at his trial and the conviction should not be permitted to stand.
49 The trial judge drew an adverse inference from the fingerprint evidence, and required the accused to provide an innocent explanation for it. This affected the presumption of innocence because the Crown was thereby relieved of its burden of establishing possession by the respondent of the LSD contained in the plastic bag. The right to remain silent was infringed by the implied requirement that the respondent had to explain the presence of his fingerprints on the plastic bag.
50 In the case at bar, there were only two sources of evidence which could lead to a conclusion of guilt against the respondent: the fingerprint evidence and the testimony of Thelland. For the reasons set out below, it is my conclusion that the evidence of Thelland consisted of inadmissible character evidence, and the fingerprint evidence standing alone was not sufficient to found a conviction.
I. Thelland's Testimony
51 In her reasons for judgment, the trial judge noted that Thelland's credibility was "substantially tarnished by his multiple falsehoods". She did not indicate in her reasons whether she relied on his evidence in deciding the respondent's guilt. As pointed out by Finlayson J.A. in the court below, however, she must have believed his testimony at least to the extent that he did not own the LSD.
52 In order to establish the guilt of the respondent, the Crown had to demonstrate that he had possession of the LSD which was found in the living room. The plastic bag was found in a common area of the house, used by all three residents. There was no way to determine the age of the fingerprints, or when the bag was placed underneath the couch. Apart from the fingerprints on the plastic bag, there was no other physical evidence connecting Lepage to the LSD. Aside from that fingerprint evidence, the only evidence through which the respondent's possession could have been demonstrated was through Thelland's testimony.
53 In my view, however, the testimony of Thelland did not provide any evidence which actually connected the respondent to the drugs whose possession he was charged with. Thelland's evidence was in the nature of character or disposition evidence. The fact that no objection was taken at the trial does not change the nature of that evidence.
54 Thelland testified in his examination in chief by the Crown as follows:
Q.What do you know about that LSD?
A.I know it belonged to John Paul Lepage.
Q.How do you know that?
A.He's the only one that was the major dealer in the house.
Q.When you say major dealer, what do you mean by that?
A.Well, quantity.
Q.Of what?
A.Of any narcotic that was coming in.
Q.What can you tell me about this specific bundle of drugs?
A.It belongs to John Paul Lepage.
Q.How do you know that?
A.Because I lived at the house. I knew that he was dealing.
Q.How did you know that?
A.Well, I've seen. Most of his friends are my friends, too, and I've seen all kinds of it around. So I knew basically who he was hanging around with and stuff like that, too.
Q.Were these narcotics yours?
A.No, they were not. [Emphasis added.]
The underlined portions demonstrate, in my view, the essential nature of Thelland's testimony as relating solely to the character and disposition of the accused, rather than to the specific facts of the offence with which he was charged. Thelland did not testify that he had seen Lepage handle the bag of LSD or have the bag in his possession. He did not testify that he saw Lepage place the bag under the couch. Nor did he testify that Lepage had admitted possessing the LSD. The only purpose of this evidence in my view was to show the disposition of the accused, or his propensity to traffic in narcotics and associate with dealers. This is an impermissible purpose.
55 As recognized by my colleague, character evidence may be admissible if it is relevant to an issue in the trial, and if its probative value outweighs its prejudicial effect: R. v. B. (F.F.), [1993] 1 S.C.R. 697. In Justice Sopinka's view, the evidence of Thelland was relevant not solely to character, but also to possession, in that someone in the business of dealing narcotics had more opportunity and was more likely to be in possession of narcotics. With respect, this is evidence of propensity to deal in drugs, and nothing more. This is what is precluded by the general exclusion of character evidence. The accused is only forced to stand trial for the transactions forming the subject matter of the charge for which he is being tried. The Crown must therefore demonstrate more than a "likelihood" or "opportunity" arising from the past history of the accused. It must demonstrate, beyond a reasonable doubt, that this accused person was in possession of the drugs which form the subject matter of the charge. The testimony of Thelland, in my view, could not assist the Crown in this respect. The prejudicial effect of such testimony would clearly outweigh its minimal probative value with respect to the charge of possession for the purposes of trafficking.
II. The Fingerprint Evidence
56 It is not clear from the reasons for judgment of the trial judge whether, or how, she considered Thelland's evidence. If she did rely on it in coming to her decision, this was an error of law. However, there remained the evidence of the fingerprints on the plastic bag containing the LSD to consider. Once Thelland's testimony is excluded, the fingerprints are the only evidence against the respondent. It is my opinion that this evidence is not sufficient, and that the trial judge erred in concluding that the respondent should have provided an explanation for the presence of the fingerprints on the plastic bag and impliedly drawing an adverse inference from his failure to do so.
57 The trial judge considered the decision in R. v. O'Keefe (1958), 121 C.C.C. 273 (Ont. C.A.), as does my colleague in his reasons. In that case, the accused was charged with breaking and entering and committing theft. The only evidence of possession of the goods by the accused was his fingerprints on the stolen goods. The Court of Appeal was unanimous in concluding that the trial judge erred in not giving effect to the explanation of the accused that he had innocently handled the goods, not knowing that they were stolen. However, the majority (Morden and Lebel JJ.A.) of the Court found that the fingerprints founded a prima facie case of possession in law against the appellant, which could be rebutted by his explanation. Laidlaw J.A., on the other hand, had this to say, at p. 279:
The mere fact that a person has handled stolen goods and left his fingerprints on them is not conclusive proof that he had possession in law of them. That fact alone does not raise any presumption that they came into his possession in a dishonest or unlawful manner. The inference cannot be drawn from that fact alone that he had any control whatsoever in respect of the stolen goods. Indeed, the mere fact of handling stolen goods and leaving fingerprints on them is equally consistent with innocence as with any wrongful act in respect of them.
In my opinion, the Crown failed to establish a prima facie case against the accused because there was no sufficient proof that any of the stolen articles were in the possession of the accused at any time.
58 Since this decision, there have been a number of cases dealing with the effect of fingerprint evidence. In R. v. Bowes (1974), 21 C.C.C. (2d) 367 (N.B.C.A.), the accused's fingerprints were found on a stolen object, a fibreglass globe located on a post on the property of the complainant. Ryan J.A. for the court followed the majority's reasoning in O'Keefe and held that the trial judge ought to have found that the accused was in possession of the object due to the presence of the fingerprints. In Bowes, however, there was no reasonable innocent explanation for the presence of the fingerprints on the globe, and they were found on the stolen object itself rather than on the container.
59 In Goguen v. The Queen (1956), 116 C.C.C. 306 (N.B.C.A.), the fingerprints of the accused, charged with break and enter, were found on the inside of a broken window. No explanation was offered by the accused. The Court of Appeal held that the magistrate was entitled, as a question of fact, to draw an inference of guilt from the fingerprint evidence. In Dufresne v. The Queen (1966), 50 C.R. 208 (Que. C.A.), the accused was convicted of armed robbery largely on the basis of the presence of a fingerprint on the rear view mirror of the stolen car used to commit the offence. In the absence of any explanation, the jury was entitled to infer that the accused had participated in the crime, and the weight of the fingerprint evidence was a question for the jury. Choquette J.A. for the court explicitly recognized that this was not a case where it was necessary to prove possession of stolen goods. In R. v. Keller (1970), 1 C.C.C. (2d) 360 (Sask. C.A.), the fingerprints of the accused were found on a matchbook cover recovered near a safe which had been opened by a cutting torch. This was held to be sufficient circumstantial evidence to found a conviction.
60 In Goguen, Dufresne, and Keller, the fingerprint evidence was used merely as circumstantial evidence to place the accused at the scene of the crime. These cases did not deal with the use of fingerprint evidence to prove possession of the stolen property itself.
61 In R. v. Kuhn (No. 1) (1973), 15 C.C.C. (2d) 17 (Sask. C.A.), the accused's fingerprints were found on one of two bottles containing heroin. The bottles were found in an abandoned barn and the fingerprint was the only evidence linking the accused with the bottles. The court found that this was not sufficient to convict the accused. Culliton C.J.S. for the court stated, at p. 19:
The fingerprint on the bottle establishes that the appellant had handled the bottle but handling alone does not establish possession. To enter a conviction for possession solely on the fingerprint, in the absence of any other evidence in support thereof, in my view, is tantamount under such circumstances, to placing a burden on the appellant to prove his innocence. This should not be done. [Emphasis added.]
62 In R. v. Breau (1987), 33 C.C.C. (3d) 354 (N.B.C.A.), Ayles J.A. for the court held that evidence of the accused's fingerprints on the outside of a car trunk and on one of eight clear plastic bags found inside a green garbage bag containing six pounds of marijuana was not sufficient for conviction. Ayles J.A. agreed with the position of Laidlaw J.A. in O'Keefe that the mere fact that a person has handled goods and left fingerprints on them is not proof of possession in law. No inference of control could be inferred from the presence of fingerprints alone.
63 A more recent decision, R. v. Mehrabnia (1993), 26 C.R. (4th) 98, (Ont. Ct. (Prov. Div.)), considered this issue in the context of a preliminary inquiry into charges of possession of heroin for the purposes of trafficking. The only evidence against one of the accused was a palm print on a piece of tissue paper which had been used to wrap the bags of heroin. There was no evidence connecting the accused with the premises where the heroin was found, nor of any relationship with the other accused who resided at those premises.
64 Fairgrieve Prov. J. concluded that this evidence was not sufficient to commit the accused for trial. After reviewing the case law, including the decisions mentioned above, Fairgrieve Prov. J. stated, at pp. 106-7:
. . . I think that the principle that emerges from all these cases is that whether an accused's fingerprint on an article will support an inference that he was in possession of the article will depend on the particular circumstances of the case. The nature of the article will clearly be of significance, such that a fingerprint on a frying pan, as in O'Keefe, for example, would much more readily establish possession of that item than a fingerprint on a container, such as the bottle in Kuhn (No. 1), which might prove prior handling of the bottle, but not necessarily knowledge and control of its contents at the relevant time. Whether the further inference of possession would be available would presumably depend on the presence or absence of such evidence as when the fingerprint was placed on the bottle, whether the contents could be seen when handling the bottle, or whether the nature of the substance in the container was readily recognizable.
65 An adverse inference may be drawn from the failure to testify in certain circumstances, namely where the Crown has already adduced sufficient evidence to establish a prima facie case supporting a finding of guilt beyond a reasonable doubt. If the accused does not adduce evidence in such a case, he or she is at risk of conviction. As Arbour J.A. explained in R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at pp. 347-48:
No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908) 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), "circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned". That point, it seems to me, can only be the point where the prosecution's evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence. It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise. [Emphasis added.]
66 In my view, there was a foundation in law for reasonable doubt in this case given that all three tenants of the house had access to the kitchen drawers where plastic bags similar to that containing the LSD were kept. It was thus possible that the respondent had innocently handled the bag in the kitchen prior to its use as a container for the LSD. The fingerprints on the container were not sufficient, in and of themselves, to draw an inference of guilt requiring the accused to provide an explanation.
67 I agree with my colleague that the question of whether an inference should be drawn from the presence of fingerprints is not subject to a hard and fast rule. In the circumstances of the case at bar, however, I would conclude that the inference should not be drawn. The fingerprints were on the container, rather than on the prohibited substance. That container could have been handled by the respondent in an innocent manner. There was no other evidence, aside from the inadmissible character evidence of Thelland, which would link the respondent to the possession of the LSD found under the couch, in a common area of a house shared by two other individuals. This was not a case where the presence of fingerprints on the container was sufficient to meet the burden resting on the Crown.
LXVIII. I would dismiss the appeal.
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