Court of Appeal for Ontario
Judges: Strathy C.J.O., Benotto and Miller JJ.A.
Between
Her Majesty the Queen Respondent/Appellant by way of cross-appeal
and
Shu Qiang Wu Appellant/Respondent by way of cross-appeal
Counsel
Eva Taché-Green for the appellant/respondent by way of cross-appeal
Stephane Marinier for the respondent/appellant by way of cross-appeal
Heard
June 21, 2017
Appeal Information
On appeal from the conviction entered on July 22, 2014 and the sentence imposed on October 14, 2014 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting without a jury, with reasons reported at 2014 ONSC 4418 and 2014 ONSC 6000.
Reasons for Decision
[1] Overview of Appeal
The appellant appeals his convictions on three counts of possession of a controlled substance for the purpose of trafficking. He asserts that: (a) the verdicts were unreasonable; (b) the verdicts were inconsistent with his acquittal on counts of producing a controlled substance; and (c) the verdicts were inconsistent with the trial judge's conclusion that he had no standing on a s. 8 of the Canadian Charter of Rights and Freedoms application.
[2] Crown's Cross-Appeal
The Crown seeks leave to appeal the sentence of 8 years' imprisonment. It submits that the sentence was unfit and asks this court to substitute a 12-year sentence. The Crown further submits that the trial judge erred in failing to delay Mr. Wu's parole eligibility.
A. Background
[3] Police Entry
On October 19, 2007, police entered a two-storey house in a residential neighbourhood in Scarborough, Ontario.
[4] The Clandestine Laboratory
The house contained a clandestine factory for the production of methamphetamine. It was capable of producing approximately 12,000 pills an hour. Some 150 kilograms of drugs, with a street value of $12 million, were found in the residence. The operation was described by a police expert as one of the six largest clandestine labs uncovered by Canadian authorities.
[5] Production Materials and Facilities
To produce this quantity of drugs required large amounts of raw materials, production machinery and storage facilities. These were contained in almost every room on the ground floor and basement of the house. A powdery dust – a by-product of the production and pill-making operation – was evident throughout the house.
[6] Dining Room Evidence
A table in the dining room was set for a meal for two. There were two bowls of rice on opposite sides of the table and a plate of food in between.
[7] Persons in the House
The appellant was the only person in the house at the time police entered. Another individual, Wan Shun Ling, had been arrested a few minutes earlier, after he left the house and went to his car, located in the driveway. Mr. Ling was tried separately, along with three others. Three of the four were convicted of production and possession for the purposes of trafficking MDMA, methamphetamine and ketamine: R. v. Ling, 2012 ONSC 654, aff'd 2014 ONCA 808.
[8] Crown's Theory
The Crown asserted that the appellant was a participant in the operation, had knowledge of the drugs and was jointly in control of them. He was convicted of possession for the purpose of trafficking and acquitted on the production charges.
B. The Conviction Appeal
(1) Unreasonable Verdict
[9] Test for Unreasonable Verdict
The evidence against the appellant was circumstantial. He acknowledges that the test is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.
[10] Trial Judge's Findings on Knowledge
The trial judge properly identified the elements of the offence, noting that the Crown was required to establish that the appellant knew of the presence of the drugs and had control over them. She found that anyone in the house for any period of time would have known that a serious drug operation was taking place, by virtue of the fact that: (a) there were 150 kilograms of methamphetamine, MDMA and ketamine in plain view in many different rooms on the ground floor and basement; (b) there was equipment related to drug production in plain view; (c) there had been no attempt to hide or obstruct the drugs from view; (d) there was a powdery residue throughout the house; and (e) there were strong odours of licorice and urine – characteristic of drug production – throughout the house.
[11] Appellant's Location and Knowledge
The trial judge noted that the appellant's purse was found in the living room, and in order to pass from there to the basement, he would have had to pass by the family room, which was full of large trays of drugs and drug paraphernalia, in plain view. She found, as a fact, that the appellant had knowledge of the massive drug manufacturing operation being carried out in the residence where he was found.
[12] Trial Judge's Findings on Control
The trial judge found that the appellant also had control over the drugs located in the home on the basis that: (a) he was there for at least half an hour; (b) he was there with Mr. Ling, who was found to have been part of the drug operation; (c) after Mr. Ling left the house and went to the car, the appellant remained alone in the home for about five minutes; (d) important documents belonging to the appellant were found in the house; and (e) there was evidence in the appellant's possession that he had bought US $340,000 in cash, using over CDN $380,000 in cash, very near the time that those operating the drug factory had acquired chemical supplies some months earlier.
[13] Trial Judge's Reasoning on Control
In finding that the appellant had the ability to exercise some measure of control over or right to control the drugs, the trial judge stated"[i]t is highly unlikely that someone who had nothing to do with this large scale drug operation would be invited into the home to see what was so openly being carried on, particularly at or around the time that some of those drugs were being moved" and "[i]t is even less likely that that person would be left alone in the home with the drugs, thereby putting the drug operation at risk."
[14] Circumstantial Evidence Standard
In Villaroman, at para. 56, the Supreme Court of Canada quoted with approval from the decision of the Alberta Court of Appeal in R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22, stating that,
"[c]ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is not unreasonable simply because "the alternatives do not raise a doubt" in the jury's mind. Most importantly"[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt."
[15] Cumulative Effect of Evidence
It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[16] Appellant's Failure to Testify
Further, when considering the reasonableness of the verdicts, and the inferences drawn by the trial judge, this court is entitled to consider that the appellant did not testify and did not adduce evidence to support any other reasonable inference consistent with his innocence. See R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.).
[17] Appellant's Alternative Theory
In this court, the appellant re-states the submission made before the trial judge, namely that the evidence supported an equally reasonable inference that he was in the premises for an innocent purpose, thereby raising reasonable doubt. He points to the absence of evidence that he was in any location in the house other than the living room, where his purse was found, and the bottom of the stairs to the basement, where he was found when police entered. He advances the theory that he may have simply been a visitor, possibly to have a meal with Mr. Ling, and never saw evidence of drugs, or noticed or appreciated the significance of the odours of the drug production, or the powdery dust.
[18] Court's Rejection of Alternative Theory
Bearing in mind the principles expressed above, we do not accept this submission. In our view, the evidence, taken together and viewed in its totality and not in isolation, provided a basis on which the trial judge could properly infer knowledge and control of the drugs sufficient to establish the appellant's possession of the drugs for the purpose of trafficking. As the Supreme Court said in Villaroman, it was for the trial judge to determine whether the alternative inferences proposed by the appellant were reasonable enough to raise a doubt. We see no error in her conclusion that they were not.
[19] Expert Evidence on Clandestine Operations
We reject the appellant's submission that the trial judge improperly relied on the evidence of the Crown's expert, whose report was introduced on consent and subject to cross-examination, that the nature of clandestine drug operations made it unlikely that the appellant would have been in the residence for an innocuous purpose.
[20] Inference of Trusted Person
Those inferences were open to her. In view of the length of time that the appellant was in the house, and the reasonable inference that only a trusted person would have been allowed to enter an active and very substantial drug laboratory operating throughout the house, it is our view that the evidence supported the inference drawn by the trial judge and was inconsistent with any other rational conclusion. A similar inference was drawn in R. v. Fredericks.
[21] Large Cash Purchase
As well, the appellant's purchase of a large sum of U.S. dollars, in cash and using cash, is obviously consistent with his participation in the operation of a cash business like drug trafficking. There was evidence that the drug factory had been operating for some time and the timing of the cash purchase was consistent with purchase of chemicals by those involved in the operation of the factory.
(2) Inconsistent Verdicts
[22] Reconciliation of Verdicts
Nor do we accept the appellant's submission that the finding of guilt in relation to possession for the purpose of trafficking is inconsistent with the appellant's acquittal on the production counts. The elements of the offences are different and the trial judge found that there was no evidence that the appellant was involved in the manufacturing process, or in offering to produce the drugs. The verdicts are capable of being reconciled on this basis.
(3) Inconsistent with Section 8 Decision
[23] Standing and Constructive Possession
Finally, we do not agree that the trial judge's ruling that the appellant lacked standing to bring the s. 8 application in relation to the search of the house was inconsistent with her conclusion that he had constructive possession of the drugs.
[24] Different Factual Foundations
A reasonable expectation of privacy in the residence requires evidence of a factual foundation different from that required to support constructive possession. There was little evidence of any connection between the appellant and the residence, other than the fact that he was found there and had some personal effects there. Not surprisingly, the trial judge found that he had no reasonable expectation of privacy in the home, for the purposes of the s. 8 analysis. On the other hand, the trial judge identified a number of features of the evidence that established both knowledge of the presence of drugs and the exercise of control of the drugs, sufficient to establish constructive possession.
[25] Conviction Appeal Dismissed
For these reasons, the conviction appeal is dismissed.
C. The Cross-Appeal: Sentence
[26] Crown's Sentence Appeal
The Crown seeks leave to appeal the sentence of 8 years, which it characterizes as manifestly unfit. It submits the trial judge also erred in failing to delay Mr. Wu's parole eligibility until he had served half his sentence.
[27] Standard of Review for Sentencing
Absent an error in principle, the failure to consider a relevant factor or an overemphasis of appropriate factors, an appellate court should not vary a sentence unless the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[28] Crown's Arguments on Gravity
The Crown submits that the sentence is manifestly unfit because it fails to reflect the gravity of the possession of a massive quantity (150 kilograms) of methamphetamine, MDMA and ketamine for the purpose of trafficking. It also argues that the sentence gave insufficient weight to the gravity of the offence, having regard to the quantity and type of the drug. It emphasizes the harmful nature of methamphetamine and suggests that the sentence should be in line with sentences imposed for cocaine, which it submits are in the range of 7 to 12 years, even for a few kilograms. It points to the street value of the drugs, which it puts in the range of $12 million, if sold in pill form.
[29] Crown's Proposed Sentence
As it did at trial, the Crown submits that a sentence of 12 years would have been appropriate.
[30] Trial Judge's Consideration of Factors
We would not give effect to the Crown's submissions. It is not suggested that the trial judge failed to consider a relevant factor. Indeed, she considered all relevant factors, including the gravity of the offence and the large quantity of dangerous drugs. She also identified the range of sentence for this offence as being 6 to 12 years, consistent with the Crown's position. She identified and considered cases in which sentences in that range had been imposed.
[31] Application of Parity Principle
The trial judge applied the principle of parity – that judges are required to impose similar penalties for similar offences or offences of a similar nature involving similar offenders. Here, the trial judge considered the sentences imposed on three other offenders who were arrested in the same operation on the same date.
[32] Sentences of Co-Accused
Those accused were sentenced for both production of the drugs and for possession for the purpose of trafficking. Two received sentences of 8 years on the possession for the purpose of trafficking charges, concurrent with 14 years for production; the third, Mr. Ling, received a sentence of 10 years on the possession for the purpose of trafficking counts, concurrent with a sentence of 16 years for production.
[33] Differential Involvement
The Crown highlights the fact that, unlike the other accused, the appellant was on parole at the time, after receiving a two-year sentence for possession of marijuana for the purpose of trafficking. While this is true, the evidence established that the other individuals were more involved in the operation than the appellant. We would not interfere with the sentence imposed.
[34] Parole Ineligibility
Nor would we interfere with the trial judge's decision not to increase the period of parole ineligibility. The Crown conceded that such an order is rare and the trial judge properly characterized it as exceptional. The Crown simply failed to discharge its burden of proof on the issue.
[35] Disposition
While we grant leave to appeal sentence, we dismiss the sentence appeal.
Signatures
"George R. Strathy C.J.O."
"M.L. Benotto J.A."
"B.W. Miller J.A."
