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CONTROLLED DRUGS AND SUBSTANCES - Constructive possession

Monday, June 07, 2021 @ 9:14 AM  


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Appeal by the accused, Chui, from a conviction for two counts of possession for the purpose of trafficking and possession of property obtained by crime. Police conducted surveillance of an apartment property after a tip from a confidential informant. The surveillance led police to obtain and execute a search warrant for a one-bedroom unit. Police seized the accused’s passport from a locked suitcase, a bag of drugs concealed under a bathroom tub, $5,400 in cash and a scale. The trial judge found, among other things, that the accused had knowledge and control of the drugs. The accused appealed, alleging judicial bias and misapprehension of the evidence with respect to the visibility of the bag of drugs and who had access to the apartment where it was found.

HELD: Appeal dismissed. There was no miscarriage of justice, whether assessed by a reasonable apprehension of bias or a reasonable apprehension that the trial was unfair. The trial judge’s comments to defence counsel about delay and filing deadlines fell well below the threshold that would give rise to concerns of bias or unfairness. The trial judge misapprehended the police evidence related to the positioning of the bag of drugs in the bathroom. The officer testified that she was unable to see the bag until removal of a plastic panel and looking behind it, whereas the judge found that the bag could be seen by anybody using the bathroom and therefore the accused knew of its presence. However, a reading of the reasons for judgment in their entirety supported a conclusion that the misapprehension of the evidence was not material to the reasoning process supporting the accused’s conviction. Apart from the misapprehended evidence, the record amply supported an inference that the accused had constructive possession based on the fact that he was the sole occupant of the residence, with no other evidence of anybody accessing the apartment during the relevant period.

R. v. Chui, [2021] A.J. No. 506, Alberta Court of Appeal, T.W. Wakeling, F.L. Schutz and M.G. Crighton JJ.A., April 14, 2021. Digest No. TLD-June72021001