R. v. Nguyen, 2025 ONCJ 685
ONTARIO COURT OF JUSTICE
Toronto
BETWEEN:
HIS MAJESTY THE KING
— AND —
PARKER NGUYEN
For the Crown
C. Kalantzis
For the Defendant
M. Macchia, C. Szpulak and H. Kashani
Heard: December 10, 11, 12, 13, 2024: January 24, April 24, September 29, 2025
REASONS for JUDGMENT
A. INTRODUCTION
1The defendant, Parker Nguyen, is charged with possession of various illicit drugs for the purpose of trafficking and possession of proceeds of crime arising out of the execution of search warrants on April 24, 2023, at two residences: unit 70 – 2901 Jane Street and unit 510 – 2800 Keele Street in the City of Toronto.
2The defendant brought a Charter challenge to the admissibility of the evidence seized during the execution of the warrants. That challenge resulted in the exclusion of the evidence discovered at the Keele Street residence. The evidence found at the Jane Street residence was ruled admissible. The reasons for those rulings are set out below.
3A trial followed during which the Crown called evidence from the police involved in the search of the Jane Street residence and the defendant’s arrest at that property. The defence called no evidence.
4The principal issue in the trial was whether the Crown had proved beyond a reasonable doubt that the defendant had knowledge and control over the contraband found at the Jane Street residence.
B. THE CHARTER APPLICATION
(a) Introduction
5The defendant (applicant) brought a Charter application to exclude the evidence seized during the execution of the search warrants, alleging that the affidavit in support of the search warrants (ITO), after proper amplification and with certain portions excised, could not have supported the issuance of the warrants. The defendant further argued that the police officers responsible for the drafting of the ITO sought to mislead the issuing justice with the intention of subverting the course of justice and that the warrants should thus be quashed. He further argued that his s. 8 Charter rights were breached when the police failed to make a timely report to a justice pursuant to s. 489.1 of the Criminal Code. Finally, it was argued that the police breached the defendant’s right to counsel upon his arrest.
6The applicant called several police witnesses on the Charter application. He himself did not testify.
(b) The application to cross-examine the affiant
7The ITO was based on information supplied to the police by Cao Hoang, the defendant’s girlfriend, and mother of his child. There were several inconsistencies and omissions in the ITO. It was apparent that some of what the affiant averred was inaccurate. I held that the relatively low threshold for a limited cross-examination of the affiant, D.C. McGill, and the sub-affiant, D.C. Bevalaqua, had been met. R v Pires, 2005 SCC 66 at para 40.
(c) Analysis of the s. 8 claim
8The ITO was sworn to by D.C. Matthew McGill. It is mostly based on what Cao Hoang told the police in three meetings with them. Not only did she tell them about the defendant’s drug dealing but she also supplied them with pictures of the drugs and cash hidden at the Jane Street residence.
9On several occasions during her statements to police she told them that the defendant does not keep his drugs at the Keele Street residence, but rather in a storage compartment in the basement of the Keele Street building. Yet, D.C. McGill failed to set that out clearly and, as he conceded in his cross-examination, mistakenly swore that Ms. Hoang told police that there would be drugs at the Keele Street residence when he meant to say the Jane Street residence.
10The ITO requires significant amplification and excision so that it conforms with Ms. Hoang’s disclosure to police. R. v. Araujo, 2000 SCC 65
11After that amplification and excision, the ITO could not support the issuance of a warrant for the search of the Keele Street residence. The search of that property thus constituted a breach of the applicant’s s.8 Charter rights.
12The information supplied by Ms. Hoang is very detailed and compelling as concerns the Jane Street residence. Other information concerning cars associated to the defendant at the two residences was corroborated by police surveillance. That the defendant lived at the Jane Street residence was corroborated by police investigation. Ms. Hoang’s relationship with the defendant tends to support the accuracy and reliability of her account as to the goings on in the defendant’s life and at the Jane Street residence.
13Even after inserting the information police knew about Ms. Hoang, that they did not include, the ITO, after amplification and excision, could amply support the issuance of a warrant for the search of the Jane Street residence. There is thus no s.8 Charter breach as concerns the issuance of that search warrant and the subsequent search of the Jane Street residence.
(d) The s. 10 application
14The defendant was arrested immediately upon the police entering the Jane Street residence just after midnight on April 24, 2023. He was told that he was being arrested for domestic assault. While it was clear to him that the police were executing a search warrant at the Jane Street residence, nothing was said to him about the Keele Street search, or any drug investigation or charges.
15Several officers involved in the arrest, transport and booking of the defendant testified. Body-worn camera footage was played for the court. The defendant did not testify.
16The evidence on the application leads me to make the following findings of fact.
17The defendant was read his rights to counsel in a timely fashion upon his arrest and he told the arresting officer as well as the transporting officers just before being loaded into the back of a police car that he wanted to speak to his own lawyer. He also asked what the search warrant was for, and the arresting officer did not answer that question. The defendant did not say who his lawyer was, nor did any of the police officers ask him for the identity of his lawyer of choice.
18P.C. Sutton, the arresting officer, whose testimony I accept on this point, testified that he told the defendant he could use his cell phone to call his lawyer immediately, but that he would not be given any privacy for such a call. The defendant said he would wait until he could have privacy and would call from the station.
19Transporting officer Judah admitted that he did not tell the booking sergeant that the defendant wanted to contact his own lawyer even though he heard P.C. Just tell the defendant at the scene of the arrest that the police would help him contact his own lawyer once back at the station.
20According to P.C. Just and P.C. Khawaja, who testified as to what occurred at the booking phase after arrival at the station, the defendant’s booking began at 12:54 am and was completed by 1:03 am. The defendant was placed in a cell and arrangements were made at 1:43 am for the defendant to speak to duty counsel, which he did at 1:50 am.
21No officers testified that the defendant had ever said that he decided to speak to duty counsel rather than his own lawyer.
22P.C. Sutton returned to the station some time after 3:18 am. He advised the defendant of the drug charges at 5:26 am. He assumed (wrongly) that the transporting officers had told the booking sergeant about the defendant’s wish to speak to his own lawyer and that arrangements had already been made for the defendant to do so. He learned that no such arrangements had yet been made and the defendant told him he wanted to speak to a lawyer named Bill McKenzie. P.C. Just then looked up Mr. McKenzie’s phone number, called it and left a message. P.C. Just then offered the defendant another duty counsel call and the defendant accepted that offer. Contact between the defendant and duty counsel then re-occurred at 5:37 am.
23The defendant was not questioned by police that morning.
24The defendant alleges a breach of both sections 10(a) and (b) of the Charter.
25As concerns the s.10(a) duty on the police to promptly inform the defendant of the reasons for his detention, the leading authorities on the subject are: R. v. Mann, 2004 SCC 52 at para. 21; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para. 35; and R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 SCR 714 at para. 28.
26As McLachlin J. (as she then was) held in R. v. Smith, supra at para. 28:
The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
27In Mann, supra at para. 21, the Supreme Court put it this way:
Section 10(a) of the Charter provides that “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor”. At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.
28Section 10(a) requires that police inform the detainee not just what he is being arrested for but also why he is being detained for investigation. The defendant was arrested for assault, but he was also detained because the police had a warrant and reasonable grounds to search his home for drugs. As he was being marched off, the defendant was promptly told he was under arrest for assault, and while he was told that a warrant was being executed at the Jane Street residence, he was not told about the fact that the police believed he was a drug dealer nor that there were two searches being conducted nor that the searches were for drugs, until several hours later, after drugs were found and the decision was made to charge him accordingly.
29As a result of this failure to fully inform the defendant about the drug investigation he was not able to fully exercise his right to the advice of counsel.
30As concerns s. 10(b), the defendant promptly told the police that he wanted to speak to his own lawyer. Yet, the transporting officers, who knew this, did not inform the booking sergeant. Instead, the defendant was immediately put in touch with duty counsel.
31In the result, the police breached the defendant’s s. 10(a) and 10(b) rights.
(e) The failure to file a timely return after the execution of the warrant
32An agreed statement of fact was filed that stated as follows:
On May 20, 2023, PC Ward sent a Form 5.2 Report to a Justice in relation to this case to the Justice of the Peace. The Report to a Justice is attached to as “Appendix A”.
PC Ward only attached one exhibit list to the Report to a Justice, which was the exhibit list for the search of 510-2800 Keele Street. There was a separate exhibit list for 70-2901 Jane Street.
In a Will Say provided to the defence on November 21, 2024, PC Ward explained that she was not aware that a second exhibit list existed. The Will Say is attached as “Appendix B”.
A working copy of the Report to a Justice was provided to the defence on October 9, 2024. On the same date, DC Wilkins, the Officer in Charge, realized that PC Ward had failed to attach the exhibit list for 70-2901 Jane Street to the Report to a Justice. DC Wilkins prepared a new Report to a Justice with the exhibit list for 70-2901 Jane Street attached and filed it with the Justice of the Peace on October 9, 2024. The new Report to a Justice is attached as “Appendix C”.
33Section 489.1 of the Criminal Code imposes a very specific duty on police officers following a seizure:
Restitution of property or report by peace officer
489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,
return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or
(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the thing seized before the justice referred to in paragraph (a), or
(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained
to be dealt with by the justice in accordance with subsection 490(1).
34Section 489.1 has long been considered a “gateway” into the judicial supervision provisions of s. 490.65 The Supreme Court of Canada considered the reporting requirements under s. 489.1 “important for Charter purposes, as they mandate police accountability for seizures that have not been judicially authorized”. R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para 63; R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] S.C.J. No. 2. at para 15; R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, at para 112.
35Section 490 includes several provisions that allow for judicial oversight of seized items. For instance, s. 490(2) contemplates that a further application to a justice (and subsequent order) may be required to continue the detention of any seized items beyond three months of their seizure. Importantly, s. 490 also includes several provisions that allow for the return of seized items, whether by means of careful contemplation by seizing officers or by means of an application by the items’ lawful owner(s) (s. 490(10)). Without the use of s. 489.1 to bring seized items into the purview of s. 490, the items seized by police exist in a jurisdictional limbo.
36It follows from the requirements of s. 489.1 and the importance of s. 490 that if seized property is detained without compliance with either, then its continued detention is not authorized by law and is therefore in breach of s. 8 of the Charter. R. v. Garcia-Machado, 2015 ONCA 569.
37The Report to a Justice for the items seized from the Jane Street residence was not provided until October 10, 2024. Consequently, what transpired from April 24, 2023, until that time was a continued unlawful detention of the seized items –that lasted for seventeen months and two weeks.
38Section 489.1 of the Code requires that the Report to Justice be completed and submitted “as soon as is practicable.” A specific timeline is not built into the legislation, but it appears what is commonly contemplated is a matter of days, not years. Clear breaches of Charter s. 8 have been found when a delay of three months took place.
39The late return re the seizure at the Jane Street residence constituted a s.8 Charter breach, although, as I will re-iterate below, it was minor and had next to no impact on the defendant’s Charter rights.
(f) Section 24(2)
40There are three Charter breaches to consider.
The warrant for the search of the Keele Street residence could not have issued on the amended ITO.
The defendant’s s. 10(a) and 10(b) rights were violated.
The filing of the search warrant return regarding the Jane Street residence was late.
41Section 24(2) must be applied twice: once to determine the admissibility of the evidence seized at the Jane Street residence and again to determine the admissibility of the evidence seized at the Keele St. residence.
42Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:
[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See too R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
43Dealing first with the Keele St. search, I find the two Charter breaches associated with that search to be serious.
44There were insufficient grounds to support the issuance of the warrant. Even though a warrant did issue, it only issued because of the extremely careless drafting of the ITO. The seriousness of the s. 8 breach is exacerbated by the breaches of section 10(a) and 10(b) as concerns the Keele St. search.
45As concerns the impact of the s. 8 breach on the Charter protected rights of the defendant, it too is serious. While the record is not clear as to the degree that the Keele Street address was a residence of the defendant, the information conveyed to the police by Ms. Hoang was to that effect.
46The impact of the s. 10 breaches is also significant. The defendant spent several hours without access to his counsel of choice, who might well have been available to speak to the defendant earlier had the phone call to him been made earlier in the morning, as it should have been.
47The seriousness of the s.10 breaches is somewhat mitigated by the fact that the police did not seek to gather evidence from the defendant prior to his contact with duty counsel, and belatedly, his counsel of choice (nor thereafter, it would appear).
48The first two Grant factors weigh heavily in favour of exclusion of the evidence seized from the Keele Street address.
49The third Grant factor, i.e. society’s interest in having the Keele Street drug charges adjudicated on their merits weighs in favour of inclusion. The evidence is real and reliable, and it is crucial to the Crown’s case.
50Balancing the three Grant factors leads me to conclude that the admission of the evidence seized during the Keele Street search would bring the administration of justice into disrepute. That evidence is excluded.
51As concerns the application of s. 24(2) to the evidence seized from the Jane Street residence, I come to the opposite conclusion.
52There is no s. 8 breach as concerns the search and seizure at the Jane Street residence.
53The s.10(a) breach is less serious as concerns the Jane Street residence as compared to the Keele St. residence. The defendant was told nothing about the Keele St. search, but he did know that the Jane Street residence was being searched.
54The s. 10(b) breach is serious, as was its impact in the Jane Street residence context.
55The third Grant factor weighs in favour of admission regarding Jane Street in the same way as it does in the Keele Street context.
56The failure to file a report pursuant to s.489.1 is a breach only as concerns the Jane Street search, but I find that the conduct of the police officers was not serious. Rather, it was inadvertent and not in bad faith. It was rectified immediately upon police discovering their oversight. Additionally, there was no impact on the defendant as a result. The items seized would have undoubtedly been held by the police in any event.
57Finally, as in the Keele Street analysis, society has a strong interest in adjudicating this fentanyl case on its merits.
58When balancing the Grant factors as concerns the Jane Street residence, s. 24(2) of the Charter favours the admission of the evidence.
59I reiterate that the difference in treatment of the admissibility of the Keele Street evidence and the Jane Street evidence largely comes down to the fact that the search of the Jane Street residence did not constitute a s.8 breach.
(g) Conclusion
60The evidence seized from the search of the Keele Street residence is excluded. The evidence seized from the search of the Jane Street residence is admitted.
C. THE TRIAL
(a) Introduction
61When police arrived at 2901 Jane Street just after midnight on April 24, 2023, the defendant was there with a middle-aged woman who identified herself as Anh Duong, and two children. The defendant was arrested, and the residence was then searched. No drugs were in plain view. They were all well hidden throughout the residence as well as under a paving stone in the back yard and in a back yard shed: 16 grams of fentanyl, 24 grams of crack cocaine, 9.5 grams of powdered cocaine, 33.8 grams of ketamine, 4.82 grams of codeine, $1,455 in cash, unused zip lock baggies, three digital scales and a cell phone.
62The Crown called several search and exhibit officers. The Crown also tendered several video and photo exhibits pertinent to the search. The defence called no evidence. The defendant admitted that he was the registered owner of the property and that whoever possessed the drugs, possessed them for the purpose of trafficking.
63The Crown concedes that this is an “all or nothing case”, i.e. that given the lack of precision as to what drugs were found where, it is incumbent on the Crown to prove the defendant’s possession of all the drugs found in the residence.
(b) The search
64The residence at 2901 Jane Street had a living room and kitchen on the main floor and three bedrooms upstairs. The living room contained a mattress.
65Hidden drugs were found throughout the main floor, back yard and the shed.
66Many pieces of identification belonging to the defendant with the Jane Street address along with his wallet and car keys were found in the residence. Male adult clothing was found in one bedroom. An envelope addressed to the defendant at the Keele Street residence was found at the Jane Street residence. An envelope addressed to him at Jane was also found.
67The master bedroom contained women’s clothing. One of the upstairs bedrooms was clearly a child or children’s bedroom.
68Ms. Hoang, in her earlier statements to police, directed police to the shed in the backyard where some drugs were found.
69No forensic evidence linked the defendant to any of the drugs found in the residence.
70Small weigh scales were found in plain sight.
(c) The law of possession
71The law of possession is succinctly set out in R. v. Bains, 2015 ONCA 677 at paras. 154-157:
Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended ("CDSA"), incorporates the definition of "possession" found in s. 4(3) of the Criminal Code so that any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.
Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.
Constructive possession does not involve an accused having physical custody of a subject matter. Constructive possession is established where an accused has the subject matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused Morelli, at para. [17]
(i) knows the character of the object;
(ii) knowingly puts or keeps the object in a place; and
(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.
As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin, 1970 CanLII 1006 (BC CA), [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, 1992 CanLII 913 (C.A.); and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.
72The Crown’s case against the defendant relies exclusively on circumstantial evidence. I must thus heed the instructions of our Court of Appeal in R. v. Lights, 2020 ONCA 128 at paras. 35-38 where Watt J.A. summarized the law in this area:
When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.
To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8.
73Watt J. A. in Lights, supra at para. 50 reminds us that:
When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.
(d) Analysis
74That the defendant owned the residence supports the inference that he controlled access to the unit. R. v. Lights, supra, at para. 104. The presence of his personal identification and wallet supports the inference that he lived there.
75There were, however, other persons who also lived there. The master bedroom was occupied by a woman, perhaps the middle-aged woman who was there when police arrived, or Ms. Hoang, who, having directed police to the drugs in the shed, clearly knew where some of the drugs were hidden. Breast milk was found in the freezer. Neither of these women testified. There is no evidence that the female occupant of the premises (whoever she was) could not have secreted drugs throughout the residence without the defendant’s knowledge. The same can be said for the hidden cash.
76The evidence suggests that the drugs were worth approximately $8,000. This evidence does not support the Crown’s argument that the drugs were so valuable that no one would have hidden them in the defendant’s residence without his knowledge.
77The finding of scales in plain view is equivocal. They may have been for kitchen use. Even if the finding of the scales supports the inference that the defendant was a drug user, it does not prove that he was a drug trafficker, nor that he knew other residents of the home were selling drugs.
78The Crown also argues that even if the defendant did not know the precise location of the hidden drugs, he must have known that the woman perpetrator was dealing drugs out of the residence and would thus have been at least wilfully blind to the presence of drugs in the home. No evidence was led on the trial portion of the proceedings that would support the notion that the relationship between him and either potential female perpetrator was such as to support this submission.
79That one of the two women referred to might have hidden the drugs in the residence without the defendant’s knowledge is a reasonable available inference on the circumstantial evidence presented in this case.
D. CONCUSION
80The charges against the defendant are dismissed.
Released on December 22, 2025
Justice Russell Silverstein