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EVIDENCE - Methods of proof - Circumstantial evidence

Monday, March 30, 2020 @ 9:22 AM  


Lexis Advance® Quicklaw®
Appeal by the accused from convictions for possession of methamphetamine for the purpose of trafficking and possession of proceeds obtained by crime. Police found a small amount of meth on the appellant and 14.35 grams of meth in a plastic bag stuffed in the shaft of the seat of the bicycle the appellant was riding at the time of his arrest. The appellant admitted he possessed the meth in his pocket for personal use but denied knowing about the meth hidden in the bicycle, claiming he borrowed the bicycle from his drug dealer to do personal errands and that he carried the knife because he had an emotional attachment to it. An expert testified that the meth, along with the items seized, was indicative of street-level trafficking and the $80 found on the accused was consistent with proceeds of crime in that context. In cross-examination, he conceded several possibilities that were consistent with an addict possessing the meth for personal use. The trial judge did not accept the appellant’s evidence about his knowledge of the meth hidden in the bicycle. The appellant argued the trial judge did not correctly apply the third step of the credibility analysis set out in WD.

HELD: Appeal allowed. New trial ordered. The trial judge erred in law in this aspect of her analysis as to whether the Crown had proved that the appellant possessed the meth for the purpose of trafficking. This was a circumstantial case that only allowed an inference of guilt if that inference was the only reasonable inference to be drawn from the evidence. The trial judge erred in relying on the appellant’s denial of knowing about the meth in the bicycle to find that possession for personal use was not a reasonable alternative inference and rely on it as positive evidence of guilt. The conviction for possession of proceeds of crime was based on the same errors of law, given that it was essentially premised on the conviction for possession for the purpose of trafficking.

R. v. Lewin, [2020] M.J. No. 34, Manitoba Court of Appeal, B.M. Hamilton, J.A. Pfuetzner and K.I. Simonsen JJ.A., February 6, 2020. Digest No. TLD-March302020001