R. v. Mowry (A.S.), (2016) 443 N.B.R.(2d) 340 (CA)

• Judge: Larlee, Richard and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 20, 2015
• Jurisdiction: New Brunswick
• Citations: (2016), 443 N.B.R.(2d) 340 (CA);2016 NBCA 2

R. v. Mowry (A.S.) (2016), 443 N.B.R.(2d) 340 (CA);

    443 R.N.-B.(2e) 340; 1159 A.P.R. 340

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. JA.014

Renvoi temp.: [2016] N.B.R.(2d) TBEd. JA.014

Allen Stewart Mowry (appellant) v. Her Majesty the Queen (respondent)

(50-15-CA; 2016 NBCA 2)

Indexed As: R. v. Mowry (A.S.)

Répertorié: R. v. Mowry (A.S.)

New Brunswick Court of Appeal

Larlee, Richard and Quigg, JJ.A.

January 14, 2016.

Summary:

Résumé:

The accused was charged with four counts of possession of a controlled substance (cocaine, Oxycodone, Hydromorphone, and marijuana) for the purposes of trafficking (counts 1 to 4) and one count of possession of property of a value exceeding $5,000, which was obtained by the commission of a criminal offence (count 5).

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 435 N.B.R.(2d) 328; 1134 A.P.R. 328, found the accused guilty of counts 1 to 4 and not guilty of count 5. The accused appealed the findings of guilt.

The New Brunswick Court of Appeal dismissed the appeal.

Narcotic Control - Topic 577

Offences - Possession - General - Constructive possession - The accused was charged with four counts of possession of a controlled substance for the purpose of trafficking - The accused asserted that there was no direct evidence of his knowledge of the substances or that they were hidden and there was no presumption of possession based on occupancy of property - The trial judge stated that the evidence established that the accused resided at, occupied and controlled the property where the drugs were found - Although there was no presumption of possession because of occupancy, occupation and control was one factor which could support an inference of constructive possession - That the drugs were found within the zone of occupation surrounding the residence was strong evidence of control - The fact that the drugs were not in plain view was but one consideration - Here, the manner in which the drugs were deliberately concealed weighed in favour of constructive possession and not the contrary - They were readily accessible - They were hidden in or near landmarks which would be readily identified by someone familiar with the property but virtually invisible to a stranger - The cumulative effect of the "constellation of circumstances" satisfied the judge that the accused was in constructive possession - The New Brunswick Court of Appeal affirmed the decision - See paragraphs 9 to 26.

Narcotic Control - Topic 702

Offences - Trafficking - Elements of - The accused was charged with four counts of possession of a controlled substance for the purpose of trafficking - The accused asserted that evidence of intention was absent - The trial judge found the accused guilty - The judge disagreed that evidence of the drugs' value (which was absent) was essential to a finding of intent - Value was but one indicia - Quantity was another significant factor - Given the quantity of drugs found, the only reasonable inference was consistent with an intention to traffic and inconsistent with personal use - The judge also disagreed that the lack of drug trafficking evidence such as a score sheet and the lack of fingerprint evidence linking the accused to the drugs raised a reasonable doubt - Not all factors were present in all cases - It would be folly to focus on the presence or absence of a given factor - Considering the totality of the circumstantial evidence and its cumulative effect, the judge was satisfied that the accused had possession with the intention and purpose of trafficking - The New Brunswick Court of Appeal affirmed the decision - See paragraphs 27 to 29.

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - [See Narcotic Control - Topic 702 ].

Cases Noticed:

R. v. Smith (C.J.) (2012), 396 N.B.R.(2d) 367; 1024 A.P.R. 367; 2012 NBCA 99, refd to. [para. 4].

R. v. Morelli - see/voir R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 12].

R. v. Wu (W.Y.) (2010), 298 B.C.A.C. 84; 505 W.A.C. 84; 2010 BCCA 589, refd to. [para. 13].

R. v. MacLeod (J.M.) et al. (2013), 294 Man.R.(2d) 90; 581 W.A.C. 90; 298 C.C.C.(3d) 327; 2013 MBCA 48, dist. [para. 15].

R. v. Dipnarine (B.) (2014), 584 A.R. 138; 623 W.A.C. 138; 2014 ABCA 328, refd to. [para. 21].

Counsel:

Avocats:

George E. Kalinowski, for the appellant;

Kathryn Gregory, for the respondent.

This appeal was heard on October 20, 2015, by Larlee, Richard and Quigg, JJ.A., of the New Brunswick Court of Appeal. Larlee, J.A., delivered the following judgment for the court, in both official languages, on January 14, 2016.