Court File and Parties
COURT FILE NO.: CR-15-90000414-0000 DATE: 20160907 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – TUAN DUC PHAM Respondent
Counsel: Sam Siew, for the Crown Kim Schofield, for Tuan Duc Pham
HEARD at Toronto: 6-8 June 2016
mew j.
Reasons for Judgment
[1] On the evening of 29 November 2013, members of the Toronto Fire Service responded to an alarm at unit #19 Toryork Drive, Toronto. Inside the 3000 square feet industrial unit they found and extinguished a fire that had started in a five gallon plastic pail.
[2] They observed that water from the sprinkler system had not been effective in putting out the fire and therefore used a fire extinguisher. From this they surmised that they were dealing with a chemical fire.
[3] The fire officers observed that inside the unit, which had a ground floor and a second, or mezzanine, floor, there were bottles, tubing and wiring as well as a disorganised group of jugs and containers. They concluded that there might be a laboratory on the premises and informed the police accordingly.
[4] During the course of a subsequent search of the premises, items seized included an empty pop can from the ground floor and a cellular telephone from the mezzanine. A fingerprint on the pop can matched one of the fingerprints of the accused, Tuan Duc Pham. It is also alleged that the cellular phone was Mr Pham’s.
[5] Mr Pham was subsequently charged with producing a controlled substance, methamphetamine, contrary to section 7(1) of the Controlled Drugs and Substances Act, possession of methamphetamine and with possession of chemicals knowing they would be used to produce or traffic controlled substances.
[6] Further facts include the following (I make no apology for quoting liberally from an Agreed Statement of Facts prepared by counsel).
[7] On the second floor of the unit, police located several buckets of chemicals that were found to contain precursors to methamphetamine, large round-bottom flasks, two compressed gas cylinders and finished methamphetamine. Based on the findings of a chemist from Health Canada, there is no dispute that methamphetamine was produced on the mezzanine floor of the unit.
[8] The amount of methamphetamine found on the mezzanine floor was 522.94 grams, in both liquid and crystalline forms. The methamphetamine had a street value of approximately $28,000-$31,000 if sold wholesale and $52,200-$78,300 at the gram level.
[9] The parties agree that whoever possessed this amount of methamphetamine would have done so for the purposes of trafficking it.
[10] Surveillance camera footage was downloaded from the exterior of the adjoining unit. It shows several individuals entering and leaving the premises at Unit #19 in the period immediately preceding the fire. The quality of this footage is such that no positive identification of any of the individuals depicted was possible.
[11] At 20:06:56 on 28 November, video footage shows a number of individuals emerging from the unit quickly, not wearing jackets. Two vehicles are seen manoeuvring. One of the individuals is gesturing in a manner that could be interpreted as “hurry up”. Shortly afterwards smoke is seen starting to come out of the unit and, at 20:14:00, Toronto Fire Service personnel approach.
[12] The pop can, a Tim Horton’s coffee cup, a Heineken beer bottle and three cigarette butts were subsequently located and seized from a makeshift lounge area on the ground floor. As already noted, forensic examination of the pop can disclosed a fingerprint on the pop can belonging to Mr Pham.
[13] Envelopes and mail addressed to 151 Toryork Drive were located on the scene and tested for fingerprints, but no prints that were sufficient for comparison were found.
[14] A box containing a number of respirators and baseball caps was located underneath the table on the mezzanine floor. Swabs were taken from twelve of these items and sent to the Centre for Forensic Sciences to be examined for DNA and compared to the national databank. While there were two positive matches, this testing did not disclose any link to Mr Pham.
[15] Matthew Cottell, who worked in a neighbouring unit, was not able to identify Mr Pham from a photo lineup.
[16] The cellular telephone was fingerprinted with negative results. Subsequently, a search warrant and a production order were executed on the telephone and associated cellular telephone account. The entire contents of the phone were downloaded and reproduced. Analysis was also undertaken of the frequency with which the phone was used to communicate with various contacts.
[17] No admission is made that the mobile phone belonged to Mr Pham, who did not testify.
[18] The phone was registered to the name Steven Chow. He cannot be traced and the Crown’s theory is that he does not exist. The address on the account corresponds with the address on a charging document in another, unrelated, court case involving Mr Pham. The calendar on the mobile phone was linked to an email address which incorporates Mr Pham’s name. An appointment in “Broxkville” corresponds with the charging document. Messages on the mobile phone make reference to three individuals with the same first names as Mr Pham’s children. Photographs and video clips appear to feature Mr Pham’s children.
[19] Other photographs on the mobile phone show a hydrogen chloride cylinder which, it is alleged, is the same as a hydrogen chloride cylinder found in the unit. There are other photographs of tubes, canisters and other paraphernalia which are said to be consistent with drug-making equipment.
[20] There is a note stored on the phone that reads “Cga330 single stage ss regulator usd350”: a regulator is a piece of hardware that would control the flow of gas from a cylinder.
[21] Although no one piece of evidence proves the guilt of Mr Pham, the question to be resolved in this case is whether the cumulative effect of the evidence leaves the accused’s guilt as the only reasonable inference.
[22] Central to a consideration of the circumstantial evidence in this case is whether the evidence places Mr. Pham at the unit and, if so, whether he was associated with the production of methamphetamine there.
[23] Although the reasonable doubt standard applies to the proof of the offences as a whole, it does not apply to each piece of evidence: R. v. Turlon (1989), 49 C.C.C. (3d) 186 (ON CA) at p. 4.
[24] Section 2(1) of the Controlled Drugs and Substances Act defines “produce” for the purposes of the Act:
“produce” means, in respect of a substance … to obtain the substance by any method or process including
(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or
(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained,
and includes offer to produce…
[25] “Possession” is defined in section 4(3) of the Criminal Code, R.S.C. 1985, c. C-46, which provides:
(3) Possession
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[26] In R. v. Pham (2005), 203 C.C.C. (3d) 326 (ON CA), affd. 2006 SCC 26, [2006] 1 S.C.R. 940, Kozak J. (ad hoc) explained these provisions and their operation at paras 14-18. In summary:
a. There are three types of possession:
i. personal possession as outlined in section 4(3)(a);
ii. constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and
iii. joint possession as defined in section 4(3)(b).
b. Constructive possession requires knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.
c. Joint possession requires knowledge, consent, and a measure of control on the part of the person deemed to be in possession.
d. To establish knowledge, it is not essential that there be direct evidence of the accused’s knowledge of the presence of the subject matter of the charge. Knowledge may, as with any other issue of fact in a criminal proceeding, be established by circumstantial evidence.
e. The onus is on the Crown to prove beyond a reasonable doubt all of the essential elements of the offence of possession.
[27] The Court of Appeal in Pham quotes (at para. 18) Martin J.A. in Re: Chambers and The Queen (1985), 20 C.C.C. (3d) 440 (ON CA) at p. 448, that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”.
[28] As to the meaning of “control”, the Court of Appeal in R. v. Savory, [1996] O.J. No. 3811 (C.A.) at para. 7 stated:
Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 55 C.C.C. (2d) 183 (Ont. C.A.), affd. (1983), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.
[29] The Crown’s theory is that Mr Pham brought his cell phone to work at the illicit methamphetamine laboratory. He went upstairs to the mezzanine. He set his phone on a table along with his cigarettes. He picked up green gloves and grabbed a respirator. And he got to work. Then something went wrong during the methamphetamine cook. The escape was rushed and panicked. The video shows an individual gesturing “hurry up”. Those inside, Mr Pham included, were escaping a fire and possible explosion. In the panic, Mr Pham left his mobile phone at the scene.
[30] To be sure, there were other people involved. This is not a case where a victim claims there is one perpetrator. However, the Crown argues that the fact that others were involved but were not charged does not diminish the case against Mr Pham. The others simply did a better job of covering their tracks. Mr Pham left his phone as well as a pop can bearing his fingerprint.
[31] Mr Pham had clearly been present at the unit. That is not disputed. His fingerprint on the pop can is proof of that. However, as the defence noted, a pop can is a one use item. It was opened, consumed and thrown away. It shows only that Mr Pham had been to the bottom floor of the unit, where the pop can was found. Furthermore, fingerprint evidence is not in of itself highly inculpatory, especially when dealing with a movable object: R. v. Mars (2006), 205 C.C.C. (3d) 376 (ON CA).
[32] The Crown says that there was no conceivable innocent purpose in visiting even the bottom part of this building. The “office” area of the ground floor had an empty desk, no telephone and no computer. There were couches by the entrance. It was a front. Rather, the ground floor existed for storage and as a makeshift lounge. The Crown’s theory is that Mr Pham worked at the laboratory, and in between cooks took a break and had a soft drink.
[33] Whereas the fingerprint does not indicate when Mr Pham was at the unit, the Crown argues that mobile phone was Mr. Pham’s and its location on the mezzanine floor does prove when Mr Pham was there. It was at least two thirds charged. The last call on the phone had been made approximately 6:52 PM on 29 November. So, it is argued, it can be inferred that he was there little more than an hour before the sudden evacuation of the unit.
[34] The defence emphasises that the telephone was not registered to Mr Pham and that it has not been established that Steven Chow did not, in fact, exist. And while conceding that it would be possible to conclude that Mr Pham may have used the phone for a period of time, there was no proof that he was using it throughout, and in particular after 19 November, when calls to a 514 area code number, which, based on the contents of the phone, may have been where calls to his family were placed to. Furthermore, witnesses, in the form of people who the phone had been used to contact, were not called, nor had triangulation evidence been obtained to show where a person was when the phone was used.
[35] Notwithstanding these arguments, the only reasonable conclusion to draw from the contents of the cellular phone is that it was Mr Pham’s phone. It contains his diary entries. It has his childrens’ names and family videos on it. It has hundreds of photographs, many of them of a personal nature. It is registered to an address associated with Mr. Pham. The fact that calls were not made to the 514 area code number after 19 November does not, in my view, detract from that conclusion.
[36] That said, there is no evidence of anyone having seen Mr Pham at the unit. He could not be identified from a photo lineup. The video footage is of no assistance at all. Mr Pham is 5 foot 2 ½ inches tall. The police witnesses were unable to identify any individual depicted in the videos whose height would correspond with Mr Pham’s.
[37] Even if, in fact, Mr. Pham was at the unit at some point in time, the defence argues that such evidence falls well short of establishing control in the terms of a connection between Mr Pham and the premises.
[38] Having found that the phone was used by Mr. Pham, I find that the fact that it was used a little more than an hour before the fire places Mr Pham at the unit in close proximity to, if not at the time, of the fire.
[39] However that alone is not enough to establish participation in the production of methamphetamine. For that, the Crown points to the picture of a canister on the cellular telephone which, it argues, is the same canister is one that was found at the unit. The cylinder is labelled “hydrogen chloride”. Hydrogen chloride is an essential part of the chemical reaction required to produce methamphetamine.
[40] The defence questions whether the picture of a cylinder on the telephone and the cylinder found by the police in the unit are one and the same.
[41] I have examined the photographs of the cylinder on the phone and the label on the cylinder found in the unit carefully. While the photos were not taken at the same time or with the same equipment, in my view the label and blemishes in the photograph correspond with those on the actual cylinder. I am left in no doubt that the photographs depict the cylinder that was in the unit.
[42] Other photographs on the phone show involvement in the workings of a laboratory.
[43] This photographic evidence on the phone, juxtaposed with the fact that the phone was found on the mezzanine floor are highly probative of control over the process of production, which is the only use to which the building was being put.
[44] In R. v. McLetchie, 2011 ONSC 1440 at paras 58-59 (an identification case), Code J. provided the following guidance in cases based on circumstantial evidence:
[45] To satisfy the Crown’s burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference from the primary facts. Therefore, in the context of the identification issue in the case at bar, the Crown cannot succeed unless the only reasonable inference from the facts is that the accused McLetchie was the second robber. See: R. v. Cooper (1978), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.).
[59] The first step in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what rational non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Alexander (2006), 70 W.C.B. (2d) 321 (S.C.J.).
[46] The following primary facts have been proved in this case:
a. A pop can with Mr. Pham’s fingerprint on it found at the unit places Mr. Pham at the unit at some point in time.
b. It would have been obvious to anyone entering the premises that something was being done with chemicals there.
c. The phone found on the mezzanine floor of the premises, close to where drug production was going on, was Mr. Pham’s.
d. The contents of the phone included photographs of gas cylinders found in the unit capable of being used for the purposes of methamphetamine production as well as a reference to a regulator (part of the production process) and photographs of other drug production equipment.
e. On the second floor of the unit, there were several buckets of chemicals that were contained precursors to methamphetamine, large round-bottom flasks, two compressed gas cylinders and finished methamphetamine.
f. A gas cylinder appearing in a photograph found on the phone is the same cylinder as one located on the second floor of the unit.
g. Methamphetamine was produced on the mezzanine floor of the unit.
h. Mr. Pham’s phone was used to make a call just over an hour before a fire which resulted in an evacuation of the premises by at least three individuals.
i. DNA testing produced matches with two other individuals, but not with Mr. Pham.
[47] No reasonable inference of an innocent purpose for Mr. Pham’s presence on the premises can be drawn from these primary facts. All that was going on there was drug production.
[48] The evidence implicating others in the activities being conducted on the premises does detract from a finding that Mr. Pham was also involved in such activities if there is an evidentiary basis for doing so.
[49] The only rational inference that can be drawn from the primary facts is that Mr. Pham was involved in producing methamphetamine on the premises. He was there at or very shortly before the fire which resulted from the production of methamphetamine. His phone contained information firmly linking him to methamphetamine production.
[50] It follows that he had a measure of control over the methamphetamine found at the unit and, consequently possession of it.
[51] I am satisfied that the Crown has discharged its burden of proving Mr. Pham’s guilt beyond a reasonable doubt on the production and possession of methamphetamine charges.
[52] A third charge (possession of pseudoephedrine) was withdrawn. The fourth (possession of chemicals knowing they will be used to produce or traffic controlled substances) was not pursued with any vigour and is cast in prospective terms (“will be used”). I am not satisfied that the record is sufficient to support this count.
[53] I therefore find Mr Pham guilty on counts one and two on the indictment (production of methamphetamine and possession of methamphetamine for the purposes of trafficking), but not guilty of possession of chemicals knowing they will be used to produce or traffic controlled substances.
Graeme Mew J.
Handed down: 7 September 2016
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – TUAN DUC PHAM Respondent
REASONS FOR JUDGMENT
Mew J.