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Wednesday, February 20, 2019 @ 8:00 AM  

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Appeal by the accused, Brown, from a conviction for multiple counts of possession for the purpose of trafficking. Police received a tip of a forthcoming drug deal. Details included location and the dealer's make of vehicle. Police located the suspected vehicle, followed it, and observed three separate drug transactions. The three occupants of the vehicle were arrested. The accused owned the vehicle and sat in the front passenger seat. A bag found on the passenger side floor near the accused's feet contained painkillers and fentanyl patches. A search of the vehicle located a plastic bag underneath the centre console containing crack cocaine and heroin. The sole issue at trial was possession. The accused testified and denied possessing any drugs. He testified that the driver saw police surround the vehicle, reached over the accused, and began shoving items under the console. The accused was convicted by a judge sitting with a jury. The accused appealed.

HELD: Appeal allowed. The charge to the jury on reasonable doubt contained a legal error. It was incorrect for the trial judge to link the creation of reasonable doubt with the need for proven facts, as reasonable doubt was logically linked not only to the evidence but also the absence of evidence. The subsequent reference to "all of the evidence or the lack of evidence" and the instruction the accused was not required to prove anything did not overcome the prejudicial effect of the incorrect portion of the trial judge’s charge on reasonable doubt. The Crown's closing address to the jury created a risk of reversal of the burden of proof by inviting the jury to speculate why the defence did not question police and the other passenger about the driver's movements when police approached. The trial judge repeated that invitation in reviewing the Crown's case to the jury, raising a serious risk the jury might think that the failure by the defence to prove those facts demonstrated no reasonable doubt. A new trial was ordered.

R. v. Brown, [2018] O.J. No. 6915, Ontario Court of Appeal, G.I. Pardu, D.M. Brown and G. Huscroft JJ.A., December 20, 2018. Digest No. TLD-February182019006