Case information

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The Appellant moved into the apartment at unit #4 during the month of October 2002, at which time she was the sole occupant. Some two months later Lieng Nguyen moved into the apartment. Ms. Lee Poulton occupied unit #3 which was located directly across from unit #4, and from the peek hole in her door she had a clear view of the entranceway of unit #4.

After the Appellant moved into the building, numerous visitors came to her door on a consistent basis. As a result of watching through the peek hole, Ms. Poulton saw: (i) people approach the door to unit #4; (ii) money being slipped under the door; and (iii) a clear plastic bag would come out containing white stuff. The police were contacted and a surveillance of the building was set up on January 3, 2003.

On March 3, 2003 at 4:40 p.m. the Appellant was seen (by surveillance) to leave her apartment and did not return prior to the seizure of the drugs on March 5, 2003. On March 4, 2003, during Ms. Pham's absence a person attended at unit #4 briefly and then departed. The police arrested this person and seized from him two pieces of crack cocaine. The police then obtained a search warrant to enter unit #4, and during the early morning hours of March 5, 2003, a search of the apartment was conducted. Lieng Nguyen was the only person in the apartment. During the course of the search two pouches were discovered in the bathroom adjacent to the sink. One pouch was described as a small black cloth purse sitting in full view. Upon opening the purse the police found individually wrapped crack cocaine. On the other side of the sink and sitting in full view was an open pink make-up bag which contained $165.00 of Canadian currency, mostly in 20-dollar bills. It was conceded that the 9.8 grams of crack cocaine was seized.

At trial, the central issue at trial was whether the Appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in paragraphs 4(3)(a) and (b) of the Criminal Code. The trial judge found that the Appellant had constructive possession of the cocaine either alone or jointly with Mr. Nguyen. On appeal, the majority of the Court of Appeal dismissed the appeal. McMurtry C.J.O. dissenting held that, on the facts of this case the trial judge made a palpable and overriding error in finding that the Appellant was in possession of the drugs, and held that the verdict was unreasonable. He would have allowed the appeal, set aside the conviction and entered a verdict of acquittal.