Accused was convicted of drug offences in relation to bag accused was seen handling by police, and which later was found to contain drugs. Accused appealed those convictions. Appeal allowed; conviction quashed; acquittal entered. Verdict was unreasonable and could not stand. Assuming that it was open to trial judge to find that bag that accused placed in second man’s car at about 9:10 a.m. was same bag that police retrieved from another man’s car some three and one-half hours later, court was satisfied there was no evidence upon which reasonable trier of fact could infer that drugs found in bag at about 12:30 were in bag some three and one-half hours earlier when accused placed it in second man’s car. Bag was in motel room for two hours and 20 minutes. Crown led no evidence concerning access to bag while it was in motel room. Crown also led no evidence as to who or what was in motel room when second man and his companion exited motel room and went to car with bag. In absence of any evidence about who had access to bag over that two-hour and 20-minute period, court thought it was unreasonable to conclude that Crown had proved beyond reasonable doubt that contents of bag had not changed between 9:10 a.m. and 12:30 p.m. when police seized bag. Trial judge erred in approaching his task by looking for evidence from which he could infer that contents of bag had changed. Trial judge was required instead to look for evidence that would satisfy him beyond reasonable doubt that contents of bag had not changed. Difference between these two approaches was fundamental to correct application of criminal burden of proof.
R. v. Wu (Nov. 13, 2015, Ont. C.A., Doherty J.A., John Laskin J.A., and M. Tulloch J.A., File No. CA C59564) 126 W.C.B. (2d) 146.