Court of Appeal for Ontario

Date: 2022-04-11 Docket: C67451 & C67452

Judges: Gillese, Lauwers and Brown JJ.A.

Docket: C67451

Between: Her Majesty the Queen Respondent

And: Ting Lin Appellant

Docket: C67452

And Between: Her Majesty the Queen Respondent

And: Shuhao Shi Appellant

Counsel: Ricardo Golec, for the appellants Howard Piafsky, for the respondent

Heard: March 30, 2022 by video conference

On appeal from the convictions entered on January 28, 2019 and the sentence imposed on September 26, 2019 by Justice John R. McCarthy of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

I. Overview

[1] Following a trial by judge and jury, the appellants, Ting Lin and Shuhao Shi, were convicted of: (i) Count 1 - unlawful possession of a Class A precursor, gamma butyrolactone (“GBL”), for the purpose of producing a controlled substance, gamma hydroxybutyrate (“GHB”), contrary to s. 6.1 of the Precursor Control Regulations, SOR/2002-359, and s. 46 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended (“CDSA”); and (ii) Counts 2, 3, and 4 - unlawfully possessing ketamine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[2] They were each sentenced to terms of imprisonment of six years, calculated as follows: Count 2 – 6 years; Count 1 – 2.5 years concurrent; Count 3 – 6 years concurrent; and Count 4 – 6 months concurrent.

[3] The appellants appeal their convictions and seek leave to appeal their sentences.

II. Background

[4] The material facts were not in dispute. Indeed, in their closing submissions defence counsel told the jury to believe the testimony of all the police officers: “Everything you’ve heard from them is true and is accurate.”

[5] Lin rented a locker in a public storage facility in Toronto. Lin and Shi attended the locker on a number of occasions, several of which were captured by the premises’ video surveillance cameras. The police entered and searched the locker five times pursuant to a general warrant. The searches disclosed that the appellants were in actual or constructive possession of GBL, a controlled precursor, and ketamine, a controlled substance. The appellants were also subject to police surveillance on three separate occasions.

[6] According to the expert evidence led at trial, ketamine is sold for both medical and illegal use. GBL is a precursor, or chemical compound, that is used to make GHB. While GHB has several legitimate uses, including the treatment of sleep disorders, it is also popular as an intoxicant and party drug, sometimes used to facilitate sexual assaults.

III. The Statutory Regime

[7] In respect of a Class A precursor such as GBL, s. 6.1 of the Precursor Control Regulation provides that “no person may possess a Class A precursor for the purpose of producing a controlled substance unless the person is the holder of” a licence issued under specified regulations or a ministerial exemption issued under s. 56 of the CDSA. Section 46 of the CDSA makes it an offence to contravene a provision of a regulation made under the CDSA.

[8] As to ketamine, s. 5(2) of the CDSA makes it an offence to possess for the purpose of trafficking a substance such as ketamine that is included in Schedule 1. However, there are permitted uses of ketamine, as it is included in the schedule to the Narcotic Control Regulations, C.R.C., c. 1041, made under the CDSA. A licenced dealer may possess ketamine, as well as “produce, assemble, sell, provide, transport, send, deliver, import or export” ketamine: Narcotic Control Regulations, ss. 3(1)(a)(i), 3(2) and 8(1).

IV. Issues on Appeal

[9] At the hearing of the appeal, the appellants submitted that the trial judge made two reversible errors. First, he erred by failing to put to the jury the defence that the appellants honestly but mistakenly believed an authorization existed that permitted them to engage in their activities with the two substances, ketamine and GBL. Second, and relatedly, the trial judge failed to include a proper instruction in his jury charge on the meaning of mistake of fact and to connect the principles of mistake of fact to the evidence.

V. The Pre-Charge Conference, Closing Submissions, and Charge

[10] Assessing the appellants’ primary submission that the trial judge failed to put the defence of mistake of fact to the jury first requires a brief review of how the issue was dealt with at trial.

[11] In the first portion of the pre-charge conference, before counsel went to the jury with their closings, defence counsel informed the trial judge that “there are no positive defences but certainly there’s a defence position”. A discussion about how the trial judge would charge the jury on the specific elements of the offences and the defence position on those offences did not take place until after closing submissions.

[12] In his closing to the jury, counsel for Lin acknowledged that the jury probably recognized that the accused were “dealing suspiciously”. He told the jury that there was a single issue for their consideration: did the accused know that the chemicals they were moving around were unlawful? Counsel submitted that the Crown had not proven beyond a reasonable doubt that the accused “knew they were dealing with unlawful drugs”; and it was not for the accused to address whether the entities from whom they acquired the two substances were legitimately licensed to deal with them, instead that was something about which the Crown had to give evidence. Defence counsel also contended that the open way in which the accused carried on their activities were inconsistent with them having guilty minds.

[13] In his closing to the jury, counsel for Shi took a similar approach. The issue, he submitted, was that the Crown had to prove that the accused dealt with the two substances unlawfully: “The issue for you here is not only whether these substances are legal or illegal, it is whether the accused had knowledge of that status. That’s vital.” Since under the regulatory regime governing the two substances there are circumstances in which a person can lawfully possess them, the Crown had to prove that the accused unlawfully possessed the two substances. Counsel contended that the accused certainly did not behave as if they knew they were dealing with illicit substances.

[14] Counsel for Shi framed for the jury the key issue concerning the two accused in the following terms:

Given that ketamine is available in both legal and illicit forms you have to ask yourselves, given the circumstances of this case, which is all that matters to us, which was the ketamine in this case in the accused’s mind? Did the accused know they had illicit rather than illegal, or sorry, did they have illicit or legal ketamine in their possession? Now, as to the GBL, there are a number of issues here. Was the GBL legitimately obtained? That is a central issue for you to consider. Did either Mr. Shi or Mr. Lin have an import licence? We’re told with an import licence one can legally import that substance. We heard no evidence on that point whatsoever.

This is a very significant issue in this trial with respect to Count 1 on the indictment before you. That requires the, Count 1 on the indictment requires at its starting point the unlawful possession of GBL. It’s the Crown’s duty, the Crown’s responsibility to prove that to you. In my submission, they have not done so. You have not heard any evidence on that point. GBL can be lawfully possessed with a licence. [Emphasis added]

[15] Following counsel’s closings, the pre-charge conference continued. Counsel for Lin argued that the charge needed to address the “unlawful aspect” of the possession of the substances by including a sentence or two “calling the jury’s attention to what unlawful means in the context of each of these substances”. When the trial judge commented that he was at a loss for the wording counsel wanted included in the charge, defence counsel agreed to provide him with some wording, which they did. In the result, the trial judge included in the charge the language proposed by defence counsel.

[16] The parties provided the trial judge with summaries of their positions for inclusion in the charge. The charge’s section on the joint defence position included the following language:

Neither Shuhao Shi nor Ting Lin knew that the unlawful drugs ultimately seized were unlawful. Shuhao Shi and Ting Lin were living normal lives in plain sight. Their actions are consistent with people who had nothing to hide. Their actions are inconsistent with guilty minds.

The Crown did not lead any evidence to refute the inference that Shuhao Shi, Ting Lin, or other mentioned persons or companies did not possess a legal licence to import GBL. This is a vital consideration when trying to arrive to near certainty that Shuhao Shi and Ting Lin were involved, and knew that they were involved, with unlawful drugs.

To what extent would Shuhao Shi and Ting Lin have known that the ketamine found was illicit ketamine as opposed to legal, lawful ketamine?

To what extent would Shuhao Shi and Ting Lin have known that the packages passing customs through at least two countries would have illicit rather than legal, lawful substances?

While some of the evidence is suspicious, most of the evidence is also consistent with innocent minds, and a lack of knowledge about illicit or unlawful drugs. The Crown has failed to prove that the only reasonable inference is one of guilt.

[17] Counsel did not make any objections to the charge as delivered.

[18] Accordingly, the record discloses that: (i) at trial appellants’ counsel expressly stated they were not advancing any positive defence; (ii) they were able to put to the jury their positions that since both substances could be possessed lawfully or unlawfully, the Crown was required to prove beyond a reasonable doubt that the appellants knew the chemicals they possessed and handled were unlawful; (iii) when they submitted to the trial judge that the charge should so inform the jury, the trial judge incorporated into his charge the language on the point drafted by defence counsel; and (iv) defence counsel were able to put to the jury the case that the way the appellants carried on their activities with the substances did not disclose guilty minds. Simply put, the jury was instructed in the fashion sought by the appellants. The appellants received the charge they desired.

VI. Did the Trial Judge Err by Failing to Charge the Jury on Mistake of Fact?

[19] As advanced on appeal, the submissions of the appellants contain both legal and evidentiary components. First, the appellants argue that, as a matter of law, an element of the offences charged required the Crown to prove beyond a reasonable doubt that the appellants did not operate under a mistaken belief that the drugs found in the storage locker were acquired through a proper authorization. Second, they further argue that there was evidence in the record that the appellants honestly believed they lawfully possessed the substances which, if believed, could lead a properly instructed jury acting reasonably to acquit them.

The submission based on the law

[20] We do not accept the appellants’ submission that an element of the offences charged required the Crown to prove beyond a reasonable doubt that the appellants did not operate under a mistaken belief that the drugs found in the storage locker were acquired through a proper authorization. We agree with the Crown that the appellants’ position would require the Crown to prove, in effect, that an accused “knew the law”. That would run counter to the established jurisprudence, s. 19 of the Criminal Code, R.S.C., 1985, c. C-46, which provides that “[i]gnorance of the law by a person who commits an offence is not an excuse for committing that offence”, and s. 48(2) of the CDSA, which provides:

48(2). In any prosecution under this Act, the prosecutor is not required, except by way of rebuttal, to prove that a certificate, licence, permit or other qualification does not operate in favour of the accused, whether or not the qualification is set out in the information or indictment.

[21] In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme Court of Canada considered the elements of the offence under s. 95(1) of the Criminal Code of possession of specified firearms without being the holder of an authorization (or licence) and registration certificate for the firearm. The Supreme Court held that the mens rea for the Crown to prove under s. 95(1) does not include knowledge that possession of the firearm in the place in question is unauthorized. The Court explained, at paras. 55 and 56:

[K]nowledge that one possesses a loaded restricted firearm, together with an intention to possess the loaded firearm in that place, is enough. An individual who knowingly possesses a loaded restricted firearm in a particular place with an intention to do so will be liable to punishment for the offence provided for in s. 95(1) unless he or she holds an authorization or a licence under which the firearm may be possessed in that place. Thus, a proper authorization or licence serves to negate the actus reus of the offence, thereby allowing someone who legitimately possesses a restricted firearm in a given place to avoid liability.

With respect, the Court of Appeal erred in law by improperly reading a defence of ignorance of the law into s. 95(1). In the majority’s view, the Crown had to prove that Mr. MacDonald knew or was wilfully blind to the fact that his possession was unauthorized. Such a burden would compel the Crown to prove that an accused knew the conditions of his or her authorization or licence. This amounts to requiring the Crown to prove that the accused knew the law. [Emphasis added]

[22] More recently, in R. v. Fan, 2021 ONCA 674, 75 C.R. (7th) 1, a case involving offences under the CDSA, this court observed, at para. 47, that s. 19 of the Criminal Code “applies to the existence and language of offence-creating provisions, as well as authorizations required for regulated activities, such as the possession of firearms and drugs.” Writing for the court, Trotter J.A. stated, at para. 50:

To require the Crown to prove that the appellants understood the legal framework in which they operated confuses actus reus and mens rea requirements. In this context, a proper authorization or licence negates the actus reus of activity that would otherwise be illegal. Conceived as a mens rea component, it would require the Crown to prove that an accused person knew the conditions of their licence or authorization. As Lamer C.J. held in R. v. Forster, [1992] 1 S.C.R. 339, at p. 346: “[K]nowledge that one’s actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.” See also R. v. Docherty, [1989] 2 S.C.R. 941, at pp. 960-61.

[23] In the present case, the appellants’ submission that for each offence the Crown was required to prove that the appellants knew they were dealing with substances, the possession of which was unauthorized, is tantamount to requiring the Crown to prove the appellants knew the law. That position was clearly rejected by the Supreme Court in MacDonald and this court in Fan, runs counter to s. 19 of the Criminal Code, and is contrary to s. 48(2) of the CDSA, which is a specific application of s. 19 in the forensic setting of a prosecution. [1] Accordingly, we see no basis for the appellants’ legal submission.

The submission based on the evidence

[24] The appellants further argue that there was evidence in the record that they honestly but mistakenly believed they lawfully possessed both substances which, if believed, could lead a properly instructed jury acting reasonably to acquit them and, therefore, the trial judge erred by failing to place before the jury a formal defence of mistake of fact.

[25] The threshold question for putting a defence of mistake of fact to a jury is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true, in the sense of whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49 and 82. The principles constituting the air of reality test are well-known: (i) a single air of reality test applies to all defences; (ii) a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused; (iii) a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation; (iv) the test imposes a burden on the accused that is merely evidential, rather than persuasive; it is the burden of putting an issue in play; (v) that said, the evidential foundation can emanate from any source on the record; there is no requirement that the evidence be adduced by the accused; (vi) in applying the test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true; (vii) the trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences but engages in a “limited weighing” to ascertain “the field of factual inferences that could reasonably be drawn from the evidence”; (viii) the air of reality test is not intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day; the question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue; and (ix) where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury: Cinous, at paras. 50-57, 86, 90 and 91.

[26] Whether or not there is an air of reality to a defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality: Cinous, at para. 55.

[27] Appellants’ counsel acknowledged that there was no evidence in the record about the existence of an authorization or licence for the appellants’ activities nor any direct evidence that the appellants believed their activities were lawful – indeed, the appellants did not testify at trial. However, the appellants submit that evidence about how they handled both substances provided a basis upon which to put a formal defence of honest but mistaken belief to the jury: the appellants did not attempt to hide their activities; Lin rented the storage locker in his own name; they did not attempt to shield themselves from the surveillance cameras at the storage facility; they visited the storage facility during the day and used the access code given to Lin; they did not drive in a manner that attempted any counter-surveillance moves; they moved items in and out of their cars in plain sight of others; and on one occasion they complained to the police about the efforts by someone – it turned out to be a police officer – to follow them. According to the appellants, the evidence about what they did and what they did not do provided an air of reality to a defence of mistaken belief that their activities were authorized under the regulatory regime governing the two substances.

[28] We are not persuaded by this submission. Quite apart from the speculative nature of many of the inferences advanced by the appellants, their submission faces a very high hurdle. The conduct which they now argue should have led the trial judge to put before the jury a formal defence of mistake of fact – notwithstanding trial counsel’s disavowal of asserting any positive defence – is exactly the same conduct defence trial counsel reviewed at length with the jury in their closing submissions in their bid to persuade the jury to acquit the appellants on the basis that their conduct did not disclose guilty minds. However, the jury obviously was not persuaded by those submissions and convicted the appellants.

[29] Having put before the jury, at some length, their positions that what they did and what they did not do failed to disclose guilty minds, and having secured the charge they sought, it is not now open to the appellants to challenge, in effect, the jury’s rejection of their submissions about their state of mind made at the close of the trial in the absence of demonstrating that the jury’s verdict was unreasonable. Yet, the appellants are not advancing unreasonable verdict as a ground of appeal.

[30] Accordingly, in the circumstances of this case we see no merit in the appellants’ contention that the trial judge erred by failing to put formally to the jury a defence of honest but mistaken belief. We accept the Crown’s submission, at para. 36 of its factum, that “[d]espite the absence of any evidence suggesting an honest but mistaken belief, the trial judge fully and fairly put the defence position to the jury.”

[31] At the hearing, appellants’ counsel acknowledged that should we conclude the trial judge did not err in failing to instruct formally on a defence of mistaken belief, the appellants’ second ground of appeal regarding the content of the charge on such a defence would fall away. We therefore need not deal with that ground of appeal.

[32] For these reasons, the appeals from conviction are dismissed.

VII. Sentence Appeals

[33] The appellants seek leave to appeal from their sentences.

[34] Below, the defence sought global sentences of four to five years imprisonment. The Crown asked for eight and one-half year sentences. The sentencing judge imposed sentences of six years imprisonment.

[35] The appellants contend their sentences were “harsh and excessive”, the result of the trial judge placing too much emphasis on the use of GBH to facilitate sexual assaults and insufficient weight on the “relatively young age” of the appellants. (At the time of sentencing, Lin was 37 years old and Shi was 36.) The appellants also contend that the highest sentence imposed for one of the ketamine offences – 6 years concurrent on Count 3 – was excessive and harsh since ketamine is not in the same category as more dangerous “hard drugs” such as cocaine and heroin.

[36] We see no basis for appellate interference with the sentences. The appellants have not persuaded us that the sentencing judge erred in principle, failed to consider a relevant factor, or imposed a sentence that was demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44 and 52. On the latter point, this court stated in R. v. Lin, 2020 ONCA 768, 97 C.C.C. (3d) 471, at para. 27, that a sentence of between five and eight years would normally be imposed for possession of ketamine for the purpose of trafficking. In those circumstances, the trial judge’s balancing of the various factors relevant to sentencing is entitled to deference.

VIII. Disposition

[37] The appeals from conviction are dismissed. Leave to appeal the sentences is granted and the appeals from sentence are dismissed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“David Brown J.A.”

[^1]: CDSA s. 48(2) contains language similar to that found in s. 7(2) of the former Narcotic Control Act, which provided: “In any prosecution under this Act the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.” In Perka v. The Queen, [1984] 2 S.C.R. 232, the majority of the Supreme Court commented, at p. 258, on the effect of s. 7(2): “One who wishes to plead the possession of a licence or other lawful authority in response to a charge of importation bears, under s. 7(2), the burden of persuading the trier of fact that such licence exists.”