JUDGEMENT
The appeal from the judgment of the Court of Appeal of Quebec (Montreal), number 500-10-006907-180, 2022 QCCA 138dated January 31, 2022, was heard on December 6, 2022 and the Court delivered the following judgment orally on the same day:
Judge Kasirer — The Court would dismiss the appeal for the reasons of Moore J. for the majority of the Court of Appeal.
We agree with the majority that it was reasonable for the trial judge to find that, taken as a whole, the evidence precluded any finding other than guilt (see R. c. Villaroman2016 CSC 33, [2016] 1 SCR 1000, para. 71, cited by the majority in this case, at para. 41 of his reasons).
All grounds of appeal are without merit.
First, the trial judge did not err in her application of the test set out in R. c. W.(D.)1991 >< 93 (CSC), [1991] 1 R.C.S. 742, p. 758. The judge completely rejected the evidence presented in defence, while concluding that this evidence raised no reasonable doubt. Believing that she was in the presence of strong circumstantial evidence relating to possession, the judge found herself faced with an absence of evidence capable of countering the inference of guilt that reasonably flowed from the prosecution evidence. Nothing in her reasons suggests that the judge used the rejection of the defense evidence as positive proof of guilt. The majority on appeal made the same finding at para. 36 of their reasons when they conclude that “the judge’s rejection of the appellant’s testimony, because of its contradictions, becomes decisive and fatal for the fate of his defence”.
Second, the majority of the Court of Appeal did not err in its application of the judgment Villaroman. The “only reasonable inference” test does not, of course, mean that guilt had to be the only possible or conceivable inference.
The dissenting judge on appeal insisted that it was “reasonable and not speculative to infer the possibility that Mr. Daniel placed the gun in the bag” (para. 28 (footnote omitted)). This hypothesis is indeed plausible given the fact that Mr. Daniel was seated next to the bag and that his DNA was found on the weapon. However, as the majority of the Court of Appeal pointed out, whether or not it was the appellant who placed the weapon in the bag “is irrelevant” (para. 38). To the extent that the prosecution established that the weapon was not placed there without the appellant’s knowledge or once morest his will, all the elements of possession were present. Thus, the trial judge might conclude that the only reasonable inference was that the weapon had been concealed in the bag in full view of the appellant.
Third, the trial judge did not err in referring to the appellant’s calm reaction to his arrest for possession of a firearm. Indeed, as the majority judges point out, the judge did not use this element to assess the appellant’s credibility during his testimony, but rather to assess, as circumstantial evidence, the knowledge by the appellant of the presence of the weapon in his bag (majority reasons, at para. 37).
For these reasons, the appeal is dismissed.
JUDGMENT
The appeal from the judgment of the Court of Appeal of Quebec (Montreal), Number 500-10-006907-180, 2022 QCCA 138dated January 31, 2022, was heard on December 6, 2022, and the Court on that day delivered the following judgment orally:
[translation]
Cashier J. — The Court is of the view that the appeal should be dismissed for the reasons given by Moore J.A. for the majority of the Court of Appeal.
We agree with the majority that it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt (see R.v. Villaroman2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 71, cited by the majority in this case at para. 41 of its reasons).
All of the grounds of appeal are without merit.
First, the trial judge made no error in applying the test set out in R. v. W.(D.)1991 >< 93 (CSC), [1991] 1 S.C.R. 742, at p. 758. She wholly rejected the defence evidence while concluding that it did not raise a reasonable doubt. Finding that there was strong circumstantial evidence relating to possession, the judge was faced with a lack of evidence that might counter the inference of guilt reasonably arising from the Crown’s evidence. Nothing in the judge’s reasons suggests that she used the rejection of the defence evidence as positive evidence of guilt. The majority of the Court of Appeal made the same observation at para. 36 of its reasons, finding that [translation] “the judge’s rejection of the appellant’s testimony, due to its inconsistencies, became determinative of and fatal to the outcome of his defence”.
Second, the majority of the Court of Appeal did not err in applying Villaroman. The “only reasonable inference” criterion obviously does not mean that guilt had to be the only possible or conceivable inference.
The dissenting judge on appeal stressed that it was [translation] “reasonable and not speculative to infer that Mr. Daniel may have placed the firearm in the bag” (para. 28 (footnote omitted)). This is indeed a plausible theory given the fact that Mr. Daniel was sitting beside the bag and that his DNA was found on the firearm. However, as the majority of the Court of Appeal noted, whether or not it was the appellant who placed the firearm in the bag [translation] “is immaterial” (para. 38). Insofar as the prosecution established that the firearm had not been placed there without the appellant’s knowledge or once morest his will, all of the elements of possession were present. The trial judge might therefore conclude that the only reasonable inference was that the firearm had been concealed in the bag with the appellant’s full knowledge.
Third, the trial judge did not err in referring to the appellant’s calm reaction when he was arrested for possession of a firearm. As the majority noted, the judge did not use this to evaluate the appellant’s credibility during his testimony, but rather to assess, as one element of the circumstantial evidence, the appellant’s knowledge of the fact that the firearm was in his bag (majority reasons, at para. 37).
For these reasons, the appeal is dismissed.