R. v. Munif

2009 BCCA 451 R. v. Munif

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Munif, 2009 BCCA 451 Date: 20091016 Docket: CA036228 Between: Regina Respondent And Mohammed Irshad Munif Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Madam Justice Neilson On appeal from: Provincial Court of British Columbia, March 6, 2008 (R. v. Benke, Munif, Vancouver Docket 176154) Oral Reasons for Judgment Counsel for the Appellant: D.L. Karp Counsel for the Respondent: W.P. Riley O.L. Bick Place and Date of Hearing: Vancouver, British Columbia October 16, 2009 Place and Date of Judgment: Vancouver, British Columbia October 16, 2009 [1] FRANKEL J.A.: Mohammed Irshad Munif appeals his conviction by Judge Howard of the Provincial Court of British Columbia, on separate charges of possession of heroin, cocaine, and marihuana for the purpose of trafficking, and on a charge of possession of a firearm. The drugs and firearm were located inside an apartment that the trial judge found was being used as a storage and distribution centre for drugs. Mr. Munif contends that the evidence does not support his being found "in possession" of the contents of the apartment and that, therefore, the verdicts are unreasonable. [2] In the fall of 2005, members of the drug section of the Burnaby Detachment of the Royal Canadian Mounted Police began an undercover investigation. Over the

next several months an undercover officer made a number of drug purchases from persons other than Mr. Munif. As well, the police conducted surveillance of a number of locations, including an apartment on Hazel Street in Burnaby, British Columbia. On April 13, 2006, they executed a search warrant at that apartment. [3] Five persons other than Mr. Munif were in the Hazel Street apartment when the police entered. The police arrested those persons, and transported them to the detachment office. Following this, the police began a search of the apartment. The trial judge summarized some of what the police found as follows: [46] Drugs and related paraphernalia were located in the suite, much of it in plain view. In total, the police found some $10,400 worth of drugs: 45 grams of cocaine valued at $3,600 on the street ($80 per gram) and 45 grams of heroin valued at $6,800 on the street ($150 per gram). They also found cash: $5,790 in a shoe box in the kitchen, $210 in the master bedroom, $652 in a shoebox in the spare bedroom. [47] On the living room floor, between the couch and the loveseat, there was an unloaded 12 gauge pump action shotgun in plain view. A box of shotgun shells suitable for use in this shotgun were found on the living room floor within arm's reach of the shotgun itself. The serial number of the shotgun had been ground off. Body armour was hanging from an exercise

device in the living room. [4] In addition, the police found slightly more than one kilogram of marihuana in the spare bedroom, and drug-related paraphernalia including scales, grinding bowls, and baggies, throughout the premises. They also located numerous cellular telephones and other communication devices. Several shells suitable for use in the shotgun were found in the master bedroom. [5] Mr. Munif was not known to the police. They first encountered him when, at 7:17 p.m., about one hour after the search began, he used a key to open the apartment's door. The trial judge described what occurred as follows: [50] MUNIF arrived at the HAZEL St. residence while the search warrant was being executed. Inside the apartment, Cst. Shum was assigned the task of watching the front door. The door was closed, but Cst. Shum could not recall if it was actually locked. He heard the sound of a key going into the keyhole for the door, then the door opened and MUNIF walked in. Cst. Sexton was also standing inside the apartment near the door. He heard the jingling of keys. The door then opened and he too saw MUNIF enter the apartment. Both he and Cst. Shum, with the assistance of Cst. Theberge took custody of MUNIF. MUNIF was placed on the ground and searched. The following items were located on MUNIF: · in his hand: a cell phone and a set of keys · in his left jacket pocket: a second cell

phone, 2 rocks of cocaine (.49 grams) and 2 flaps of a powder containing cocaine/heroin mixture (.39 grams) · in his right jacket pocket: $455 · in his right from pant pocket: $100 in a wallet. [6] The trial judge found that the apartment was being used as a drug-trafficking hub: [52] Firstly, I am satisfied that the drugs located in the HAZEL St. residence on April 13, 2006, were possessed for the purpose of trafficking. The evidence establishes beyond a reasonable doubt that [the] HAZEL St. [apartment] was being used as a packaging and distribution centre (or "stash house") for a very busy dial-a-dope operation. The quantity of heroin and cocaine, most of which was prepackaged for sale at the street level, the empty premade paper flaps, the many cell phones commonly used by dial-a-dopers (upwards of 15), the 4 blackberries and the palm pilot, the numerous score sheets, and the shotgun (readily accessible if the need to defend the drugs should arise) can lead to no other reasonable conclusion. [7] Turning to the question of whether the Crown had proven a connection between Mr. Munif and the drug-related activity taking place in the apartment, the trial judge analyzed the evidence as follows: [55] The final issue is whether the circumstantial evidence presented by the crown is sufficient to prove beyond a reasonable doubt that MUNIF also had knowledge of and control over the

drugs and the shot gun located in the HAZEL St. residence on April 13, 2006. None of the documents located in the residence were in his name. [56] In is clear that the only time MUNIF was seen at the HAZEL St. residence was on April 13, 2006. There is no evidence that he owned, rented or lived in this residence. There is no fingerprint evidence placing him in the residence. [57] MUNIF was in possession of two flaps of heroin and two rocks of cocaine when he entered the HAZEL St. residence. The fact that those drugs and a quantity of cash ($455) were found in a pocket separate from the $100 found in MUNIF's wallet is not without significance. According to the expert witness, Cpl. Sheppard, street dealers often keep their personal cash separate from the cash they receive from their drug sales. The fact that MUNIF was in possession of two cell phones is also of significance. Cell phones are key tools in the dial-a-dope trade. Apart from the cell phones, Cpl. Sheppard did acknowledge that the presence of $455 in a separate pocket could also be consistent with MUNIF's attendance at the residence for the purpose of purchasing additional drugs for his own personal use. [58] Had MUNIF attended the HAZEL St. residence and knocked on the door in order to gain admittance (as did YANG at the Smithe St. residence) I would have had considerable doubt as to whether he was a party to the

illegal drug enterprise that was found in the residence. However, this was not the case. [59] One Constable, standing on the opposite side of the door, heard the jingling of keys and another Constable heard the sound of a key in the keyhole of the door just before MUNIF opened the door and entered the residence. As he entered, MUNIF was holding a set of keys in his hand. Notwithstanding the fact that no one bothered to test these keys in the door, this evidence establishes beyond a reasonable doubt that MUNIF entered the HAZEL St. residence using a key. [60] The totality of the evidence implicating MUNIF in the dial-a-dope operation located in the HAZEL St. residence can be summarized as follows. MUNIF was in possession of a key that allowed him free access to this residence. This is a clear indication that he had a measure of control over the residence. It would have been impossible for him not to have knowledge of the large quantities of drugs and drug paraphernalia scattered about the kitchen, the living room and dining room. Given the quantity of drugs and cash in the residence, the common sense inference is that only a trusted member of the illegal operation would be given such free access to the residence. Finally, upon his arrival at the residence, MUNIF was found in possession of items typically found on street level dial-a-dopers: small packaged quantities of heroin

and rock cocaine, $455 in a pocket separate from his wallet and two cell phones. [61] I am satisfied that the only reasonable inference to be drawn from the above evidence is that MUNIF was a party to the illegal drug enterprise that was being run out of the HAZEL St. residence. He had access to and control over the residence and its contents; he had knowledge of the drugs in the residence, the drugs were clearly possessed for the purpose of trafficking, and he was an active participant in that operation. In the present case, the strength of these inferences is not diminished by the fact that others may also have had knowledge of and control over the illegal operation. [62] With respect to the shotgun in the living room, the only reasonable inference to be drawn is that this shotgun, minus its filed-off serial number, was in the residence for the purpose of protecting the illegal operation. I am satisfied beyond a reasonable doubt that MUNIF must have known of the presence of this readily visible weapon and its importance to the illegal operation to which he was a party. No other reasonable inference arises on the evidence. [63] On behalf of MUNIF, defence counsel has urged upon me another inference, which he asserts is equally plausible. Perhaps MUNIF was just an innocent visitor who had been given a key so that he could come and go during his temporary residency. He may have

had knowledge of the drugs and the shotgun that were in the residence, but he would not have had any control over them. In my view, this is not a plausible inference when one considers the totality of the evidence before me. Drugs worth in excess of $10,000 were spread throughout the kitchen, dining room, and living room. Considerable quantities of cash were stuffed in shoeboxes, one a shelf in the kitchen, another in the spare bedroom. Given the quantity of drugs and cash in the residence, it is unlikely that a mere visitor who was not a trusted member of the illegal operation would be given free access to this residence. [8] In challenging those conclusions, Mr. Munif alleges the following errors in his factum: The learning trial Judge committed overriding, palpable error in finding the evidence proved the offences beyond a reasonable doubt. The learned trial judge committed overriding palpable error in finding there was sufficient evidence to impute actual or constructive possession in the face of other inferences consistent with the evidence. [9] Mr. Munif's appeal is based on s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46. That section empowers an appellate court to set aside a conviction "on the ground that it is unreasonable or cannot be supported by the evidence". Madam Justice Arbour discussed the application of this provision in detail in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R.

381. She summarized how it is to be applied in her judgment in the companion case of R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439: 6 The proper test is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered" (Yebes, supra, at p. 185). In embarking on the exercise mandated by s. 686(1)(a)(i) of the Criminal Code, the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration. Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did. The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. This is what must now be done in this case. [10] In applying that test, it is important to keep in mind that it involves a judicial assessment of "the cumulative effect of all the evidence", not a "piecemeal evaluation": R. v. Robinson, 2003 BCCA 353, 176 C.C.C. (3d) 23 at para. 40. [11] In the case at bar, to paraphrase what

Madam Justice Rowles said in R. v. Ngo, 2009 BCCA 301 at para. 60, the question is whether, on the whole of the evidence, the trial judge could reasonably have concluded, beyond a reasonable doubt, that Mr. Munif had knowledge of, and some measure of control over, the drugs and firearm inside the Hazel Street apartment. Also apt is the following from the judgment of Chief Justice McEachern in R. v. To (1992), 16 B.C.A.C. 223, a case in which this Court held that it was open to the trial judge to infer that Mr. To knew that the closed bag he was carrying contained drugs: 19 The first question is whether the evidence permitted the learned trial judge to conclude beyond a reasonable doubt that knowledge on the part of the accused was the only reasonable inference to be drawn from the proven facts: R. v. Cooper (1977), 34 C.C.C. (2d) 18 (S.C.C.) per Ritchie J. at p. 33. 20 In this respect, our function is not to second-guess the trial judge, but merely to examine the evidence, and consider whether the judge has correctly applied the law to the facts of the case. ... . . . 41 It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does

not demand certainty. I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by the evidence. [12] Mr. Munif, as he did at trial, supports his argument that the evidence is not sufficient to establish guilt by reference to a number of trial and appellate decisions in which persons have either been acquitted of drug-related offences, or their convictions have been set aside on appeal. That such a comparative exercise is unhelpful has been commented upon previously by this Court. For example, in R. v. He, 2008 BCCA 418, 237 C.C.C. (3d) 1, a marihuana grow-operation conviction appeal, the appellant relied on a decision in which a trial judge had dismissed similar charges because, in her view, the evidence did not prove knowledge and control beyond a reasonable doubt. In responding to that argument, Mr. Justice Bauman, as he then was, said: [48] ... With respect, how one trial judge assessed the evidence in the case before her does not assist on appellate review of another trial judge's assessment of the evidence in a different case. As Yebes holds, appellate review in a case like this calls for a determination "on the whole of the evidence whether the verdict is one that a properly instructed [trier of fact], acting judicially, could reasonably have rendered". See also: Ngo at para. 57. [13] In my view, it was open

to the trial judge, on the evidence before her, to draw the inferences she did with respect to Mr. Munif's involvement in the illegal activities taking place within the Hazel Street apartment. Further, although the fact that Mr. Munif did not testify could not be, and was not, a factor at his trial, at the appellate stage of the criminal process it can be considered in assessing the reasonableness of a verdict. If Mr Munif had an explanation for why he had a key to the apartment, then he could have called evidence in that regard. Apposite is R. v. G.L.J., [1997] B.C.J. 2994 (C.A.), wherein Mr. Justice Braidwood, in dismissing an appeal from conviction for possession of heroin for the purpose of trafficking, said: 31 As it has often been said before, although an accused need never prove his innocence, there may come a time in a trial when the evidence, although circumstantial, becomes so cogent that in failing to answer it, the accused must stand condemned. I am of the opinion that this is the situation in the case at bar. Instructive on this point is the case of R. v. Noble, [1997] 1 S.C.R. 874 at 429. See also: R. v. Li, 2009 BCCA 21, 265 B.C.A.C. 110 at para. 26. [14] I would dismiss this appeal. [15] LOWRY J.A.: I agree. [16] NEILSON J.A.: I agree. [17] LOWRY J.A.: The appeal is dismissed. "The Honourable Mr. Justice Frankel"