Court File No.: CR 15-3-642 Date: 2017-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

Re: Her Majesty The Queen, Applicant And: Gary Chen, Accused

Counsel: Ronald Krueger, for the Crown Janani Shanmuganathan, for the accused

Heard: June 6-9, 12-13, 2017

Before: K.L. Campbell J.

I Overview

[1] The accused, Gary Chen, faces a six-count indictment. He is charged, more particularly, with trafficking in five specific controlled substances: heroin, BZP, MDMA, ketamine and marihuana; and with conspiring with Ken Mai to traffic in a controlled substance. These offences are alleged to have been committed in Toronto during the nearly 6½ month period between December 17, 2013 and May 28, 2014.

[2] The evidence clearly established that Ken Mai, a friend and associate of the accused, was trafficking in substantial quantities of these various controlled substances (as well as cocaine) during this time period. The main issue in this case is whether the Crown has established that the accused was involved in Mr. Mai’s drug trafficking operation and committed the alleged offences, either as a principal or a party.

[3] Mr. Mai spent time at two residential apartments. One was located on the 17th floor of a building located on Joe Shuster Way (unit 1719), while the other was located a short distance away on the 12th floor of a building on Western Battery Road (unit 1211). During the course of their investigation, “Project Battery,” the police surreptitiously executed three general warrants at unit 1719. The Crown contends that this unit was Mr. Mai’s “stash house,” the primary location where he kept his drugs, and transacted his illicit drug trafficking business. The Crown argues that unit 1211 was where Mr. Mai lived. Ultimately, on May 28, 2014, the police executed search warrants on both of these residences. At each judicially authorized visit at both locations, the police found large quantities of various controlled substances and other drug trafficking paraphernalia. At the conclusion of the “Project Battery” investigation, Mr. Mai was charged and ultimately found guilty of a number of criminal offences related to his substantial drug trafficking activities.

[4] The Crown’s case against the accused, Mr. Chen, is entirely circumstantial. He was obviously a friend of Mr. Mai. They were observed by the police engaged in lawful activities (i.e. attending a funeral and shopping together). But the accused was never found in possession of any controlled substances; he was never followed and observed buying, selling or transferring any controlled substances; and he never lived at either of these residential units where the drugs and drug trafficking paraphernalia were discovered.

[5] The accused was observed attending both units. Motion-activated, covert surveillance video cameras installed near the entrances of each unit showed that the accused (1) attended unit 1719 on 13 separate occasions during the 3½ month period between February 1 and May 16, 2014; and (2) attended unit 1211 on three occasions during the week-long period between May 16 and 21, 2014. More specifically, these cameras showed that, on two occasions when he left unit 1719, the accused had a large, loop-handled, gift bag in his hand. On most other occasions, when he left the residential units, the accused either put his hands in his pockets or patted his pockets. In addition, the accused owned or leased two vehicles, and Mr. Mai, on a number of occasions, used those vehicles for his own personal transportation and/or to conduct illicit drug transactions.

[6] The Crown contended that this body of circumstantial evidence, together with the expert opinion evidence of Det. Margetson, as to how a “stash house” is often employed in a mid-level to high-end drug trafficking operation, established the alleged guilt of the accused, on the basis that the accused at least intentionally aided or abetted Mr. Mai in his ongoing drug trafficking activities by helping Mr. Mai move drugs from one location to another and by allowing Mr. Mai to use his vehicles for his drug business.

[7] The accused did not testify, but defence counsel argued that this evidence does not establish, with the requisite degree of certainty, that the accused was either a principal or a party in relation to the drug trafficking operation of Mr. Mai. Defence counsel relied primarily upon the fact that the accused, who has no criminal record and has never been in trouble with the police before, was never personally found in possession of any controlled substances, and the drugs that the police periodically found in Mr. Mai’s residential units were, with one exception, never found in plain view anywhere in the units, but rather were hidden in locked safes, or inside other closed compartments such as dresser drawers, suitcases, gym bags, or fridges. Defence counsel also contended that the video recordings of the accused coming and going from these residences do not help in establishing the alleged guilt of the accused, as there is no evidence as to whether there were any controlled substances in his pockets or bags at these various times. Defence counsel argued that, in the result, the alleged guilt of the accused is not the only reasonable or rational inference that can be drawn from all of the circumstantial evidence led by the Crown.

II The Main Legal Principles Applicable in This Case

A. The Presumption of Innocence

[8] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial, and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, at pp. 682-683, 687.

B. The Burden of Proof on the Crown – Circumstantial Evidence

[9] It is also important to recall the nature of the heavy burden of proof cast upon the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

[10] Moreover, in a case such as the present one, where the Crown’s case depends entirely upon circumstantial evidence, the application of this burden of proof requires that the trier of fact, whether judge or jury, must be satisfied that the only reasonable or rational inference that can be drawn from all of the circumstantial evidence is that the accused is guilty. If there are reasonable inferences other than guilt, the Crown’s evidence does not establish the alleged guilt of the accused beyond a reasonable doubt. See R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 17-22, 28-30, 32-38; R. v. Pearle, 2016 ONCA 954, [2016] O.J. No. 6505, at para. 7; R. v. Biggs, 2016 ONCA 910, 34 C.R. (7th) 147, at para. 17. Of course, the circumstantial case against the accused must be considered as a whole. It is only the cumulative effect of all of the evidence that must satisfy the Crown’s burden of proof in order to justify conviction. Individual items of circumstantial evidence must not be subjected to isolated scrutiny in a piecemeal analysis, as they are merely links in the chain of ultimate proof. See R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011, at para. 13; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82.

C. The Good Character of the Accused

[11] Through her cross-examination of Crown witnesses, defence counsel established that the accused has no previous criminal record and has never been in trouble with the police before. This evidence suggests, at least circumstantially, that the accused is a person of good character – someone not likely to have committed the drug trafficking offences now alleged against him. See R. v. Dees (1978), 40 C.C.C. (2d) 58 (Ont.C.A.), [1978] O.J. No. 575, at p. 65; R. v. White (1997), 32 O.R. (3d) 722, [1997] O.J. No. 961 (C.A.), leave denied, [1997] S.C.C.A. No. 248; R. v. Flis (2006), 207 O.A.C. 228, 205 C.C.C. (3d) 384 (C.A.), at paras. 37-53, leave denied, [2006] S.C.C.A. No. 120; R. v. E.(F.E.) (2011), 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 67, 113. Such evidence is itself capable, in appropriate cases, of raising a reasonable doubt as to the alleged guilt of the accused. See R. v. Smith (2001), 154 O.A.C. 51, 161 C.C.C. (3d) 1 (C.A.), at paras. 99-101, leave denied, [2002] S.C.C.A. No. 156; R. v. Macedo, 2012 ONSC 2595, [2012] O.J. No. 2776, at paras. 110-117.

D. The Silence of the Accused

[12] Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of criminal allegations, as the accused elected to do in the present case, no adverse inference can properly be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, per Moldaver J. at paras. 4, 10-12, 15, 20-21, 26, per Fish J. at paras. 64-65; R. v. Noble, [1997] 1 S.C.R. 874, at para. 72. See also R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 97-98; R. v. Caron, 2014 BCCA 111, [2014] B.C.J. No. 492, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, [2012] O.J. No. 5817, at paras. 91-92.

E. The Guilt of Other Alleged Participants in the Drug Offences

[13] In one of the agreed statements of fact that have been filed in this case, the parties agreed that a number of different individuals have pled guilty (or been found guilty) of various different drug-related offences in separate criminal proceedings flowing from the “Project Battery” investigation. Mr. Mai was but one of these individuals. Some of these individuals were identified on the video surveillance camera as having attended at various times at unit 1719. Of course, this evidence of the results of other judicial proceedings is not admissible directly against the accused. The fact that other individuals are guilty of drug-trafficking offences, is no evidence that the accused is guilty of drug trafficking offences. See R. v. Berry (1957), 118 C.C.C. 55 (Ont.C.A.), at pp. 57-58, 60-61; R. v. Lessard (1979), 50 C.C.C. (2d) 175 (Que.C.A.), at pp. 181-182; R. v. MacGregor (1981), 64 C.C.C. (2d) 353 (Ont.C.A.); R. v. Simpson, [1988] 1 S.C.R. 3, at pp. 18-19; R. v. Buxbaum (1989), 33 O.A.C. 1; 70 C.R. (3d) 20 (Ont. C.A.), at para. 11, leave denied, [1989] S.C.C.A. No. 239; R. v. Paquet (1999), 140 C.C.C. (3d) 283 (N.B.C.A.); R. v. C. (P.), 2015 ONCA 30, 321 C.C.C. (3d) 49, at paras. 39-46; R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354, at para. 54; R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 35.

F. Proof of the Drug Trafficking Offences – As Particularized

[14] As I have indicated, the indictment against the accused has been particularized in that, with respect to the five “trafficking” charges, the accused is alleged to have trafficked in the controlled substances heroin, BZP, MDMA, ketamine and marihuana. It is only with respect to the conspiracy charge that it is alleged, more generally, that the accused conspired with Ken Mai to traffic in a non-specific “controlled substance.” Given this particularization of the indictment, the Crown is obliged to prove the charges as particularized (i.e. that the accused trafficked those specific controlled substances). In other words, once the Crown has particularized the specific nature of the controlled substance alleged to be involved in the offence, the accused cannot be convicted of that offence if it turns out that it involved a different controlled substance. See R. v. Morozuk, [1986] 1 S.C.R. 31, at p. 37; R. v. Saunders, [1990] 1 S.C.R. 1020.

[15] This is an especially important principle in the present case. Indeed, due to the application of this principle, the Crown ultimately conceded that, given that the accused was never found in possession of any particular controlled substance, the Crown can only prove that the accused was engaged in trafficking particular controlled substances, by showing the “fluctuating nature” of the quantity of drugs in unit 1719. Further, the Crown also conceded that the only drugs that fluctuated in quantity over time in unit 1719 were heroin, cocaine and marihuana. In the result, the Crown has fairly invited the acquittal of the accused on the three charges of trafficking in BZP, MDMA and ketamine. What remains to determine, therefore is the potential liability of the accused for the other alleged offences.

III Analysis

A. Introduction

[16] For the following reasons, I am not satisfied beyond a reasonable doubt as to the alleged guilt of the accused for the remaining alleged offences of trafficking in heroin and marihuana, and conspiracy to traffic in a controlled substance. I am not satisfied that the only reasonable or rational inference that can be drawn from all of the circumstantial evidence in this case is that the accused is guilty of any of these alleged offences. In my view, another reasonable inference that can be drawn from the whole of the circumstantial evidence is that the accused was just a personal friend of Mr. Mai, who helped him with his motor vehicles, but was someone who was not engaged in any conspiracy with him and was not engaged in any aspect of his drug trafficking operation. I will address the main evidentiary planks of the Crown’s case against the accused, but my conclusion is based upon my consideration of all of the circumstantial evidence, viewed cumulatively and as a whole.

B. The Video Surveillance Evidence

[17] As I have indicated, motion-activated, covert surveillance video cameras were installed in the hallway outside both of Mr. Mai’s residential units. The Crown argued that the recordings from these cameras showed the accused moving controlled substances on behalf of Mr. Mai, thereby assisting him in his drug trafficking operation. I disagree. These recordings do not establish what might have been in the pockets of the accused, or in the bags he carried. To suggest that they contained controlled substances is speculative. Further, even if the accused might have, on occasion, had a controlled substance in his pockets and/or in the gift bags, the Crown cannot establish what specific controlled substance it might have been.

[18] The surveillance camera outside unit 1719 was installed on January 29, 2014, and remained in place for about four months, until May 28, 2014. It made only video recordings. There were no accompanying audio recordings. The elevator and the garbage chute servicing the 17th floor were both located behind the camera and were, therefore, outside its view. The video recordings made by this camera revealed many different individuals coming and going from this unit. The police were able to identify the majority of these individuals, many of whom later admitted to have been involved in drug trafficking activities, but there were five men who could not be identified. Significantly, the parties agree that the motion-activated camera did not operate flawlessly as on at least one occasion it captured the entry (but not the exit) of Mr. Mai and the accused.

[19] This video camera recorded, essentially, the following activities of the accused in relation to Mr. Mai and unit 1719:

• On February 1, 2014, at 7:32 p.m., Mr. Mai and the accused attended and entered the unit. Mr. Mai was carrying a drink. Both men were wearing winter coats. The accused had his hands in his pockets. Nearly an hour later, at 8:30 p.m., the accused and Mr. Mai left the unit. The accused entered the hallway first, and waited for Mr. Mai. While he was waiting, the accused located his cell phone in the front pocket of his hoodie sweater, and checked the outside of his pants pockets with his hands. As he left the area, he zipped up his winter coat. Mr. Mai then appeared from the unit, holding a couple of bottles of water, and wearing his winter coat, and he also left the area.
• On February 2, 2014, at 11:13 p.m., Mr. Mai and the accused again attended and entered the unit. Both men were wearing their winter coats. Approximately seven minutes later, the accused exited the unit, wearing his winter coat, and carrying a bottle of water and a white gift bag. The accused walked in the direction of the elevator and the garbage chute.
• On February 10, 2014, at 11:37 p.m., Mr. Mai and the accused attended and entered the unit. Both men were wearing their winter coats. Approximately 40 minutes later, at 12:17 a.m. on February 11, 2014, Mr. Mai exited the unit, wearing his unzipped winter coat, and carrying a white plastic shopping bag. Mr. Mai returned about 10 minutes later, at 12:27 a.m., in the company of a male known as Phuc Truong. An unknown male appeared some 23 minutes later, at 12:50 a.m., and entered the unit. This unknown male left the unit again approximately 54 minutes later, at 1:44 a.m., carrying a shoulder bag, which he did not appear to have when he arrived. Subsequently, more than an hour later, at 2:45 a.m., Mr. Truong, the accused and Mr. Mai all left the apartment, wearing their winter coats, and headed in the direction of the elevator and the garbage chute. The accused had his hands in the pockets of his jacket.
• On February 14, 2014, at 7:20 p.m., the accused attended at the unit wearing a jacket. While walking in the hallway, the accused was focused on his cell phone. Mr. Mai had already arrived at the unit sometime earlier and was already inside. The accused did not enter the apartment, but rather remained around the entrance, adjusting his pants. The accused was then joined by Mr. Mai, who was also wearing a winter jacket, and they left the area together. Other police surveillance evidence revealed that they went to a funeral home together. The two men then returned to the unit together again at 10:47 p.m., and then left together again some 18 minutes later at 11:05 p.m.
• On February 23, 2014, at 9:26 p.m., Mr. Mai and the accused attended and entered the unit. Both men were again wearing winter jackets. Approximately 20 minutes later, at 9:46 p.m., both men left the unit again. The accused was drinking from a bottle of water. He did not have his hands in his pockets, nor was he patting his pockets.
• On February 28, 2014 at 8:06 p.m., the accused attended at the unit wearing his winter jacket. Mr. Mai had already arrived at the unit sometime earlier and was already inside. Some 41 minutes later, both the accused and Mr. Mai left the unit, both wearing their winter jackets. The accused was the first one to leave the unit, and was looking at his cell phone, holding it in both hands, as he waited for Mr. Mai.
• On March 6, 2014, at 10:23 p.m., Mr. Mai and the accused attended and entered the unit. Both men were wearing their winter coats. They left the unit again approximately 17 minutes later, at 10:40 p.m., wearing their winter coats and engaged in conversation. As he left, the accused slid one hand halfway into his pants pocket, while pulling up the hood of his sweater with his other hand.
• On March 16, 2014, at 5:10 p.m., the accused attended at the unit wearing a different winter jacket, and carrying what appeared to be a white styrofoam container of take-out food inside a grey plastic bag. Mr. Mai had arrived at the unit some 27 minutes earlier. Before entering the unit, the accused looked behind him, back in the general direction of the elevator and the garbage chute. Subsequently, at 6:06 p.m., the accused left the unit, carrying a bottle of water. At first, his winter jacket was zipped-up, but after he patted and checked his pockets, he briefly returned to the unit, and when he left again, and walked in the direction of the elevator and the garbage chute, his winter jacket was open, and the accused had his right hand inside the pouch pocket of his sweater.
• On March 30, 2014, at 8:55 p.m., Mr. Mai and the accused attended and entered the unit. Both men were wearing their winter coats. Mr. Mai was carrying a white plastic shopping bag. Subsequently, at 9:37 p.m., both men left the residence and headed in the direction of the elevator and garbage chute. As he walked away, the accused put his hands in his jacket pockets.
• On April 2, 2014, at 11:20 p.m., Mr. Mai and the accused attended and entered the unit. Both men were wearing their winter coats. About 42 minutes later, at 12:02 a.m. on April 3, 2014, the accused left the unit. He was carrying a bottle of water in one hand, while his other hand was inside his jacket pocket. Mr. Mai left the unit about 47 minutes later at 12:49 a.m.
• On April 8, 2014, at 6:24 p.m., Mr. Mai and the accused attended and entered the unit. Both men were wearing spring jackets. Shortly thereafter, at 6:33 p.m., the two men left the unit together again. The accused had his hands in his jacket pockets.
• On April 12, 2014, at 6:31 p.m., Mr. Mai and the accused attended and entered the unit, wearing spring jackets. Approximately 10 minutes later, at 6:41 p.m., the accused left the unit carrying a large white gift bag. Mr. Mail subsequently left the unit at 7:14 p.m.
• On May 16, 2014, at 6:06 p.m., the accused appeared at the unit and entered. He was wearing a light spring jacket. The parties are agreed that while the accused subsequently left the unit sometime before 6:58 p.m. (where he was seen elsewhere), the camera did not, for whatever reason, capture the accused leaving the unit.

[20] The surveillance camera outside unit 1211 was installed on May 11 or 12, 2014, and remained in place for just over two weeks, until May 28, 2014. It similarly made only video recordings, not audio recordings. These recordings revealed a number of individuals coming and going from this unit, and recorded the following activities of the accused in relation to Mr. Mai and unit 1211:

• On May 16, 2014, at 6:58 p.m., the accused and Mr. Mai appeared at the unit and entered. They were both wearing light spring jackets. Mr. Mai was carrying a small bag with a strap over his shoulder. At 8:21 p.m. Mr. Mai left the unit, locking the door behind him, and carrying the same shoulder bag. Mr. Mai returned eight minutes later, at 8:29 p.m., carrying a box in his left hand, and entered the unit after unlocking the door. Approximately 50 minutes later, at 9:19 p.m., both Mr. Mai and the accused left the unit together, laughing and talking, without any bags or boxes in their hands.
• On May 18, 2014, at 11:18 p.m., the accused arrived at the unit. Mr. Mai had arrived approximately 52 minutes earlier. The accused remained in the unit for just about one minute, and then left again, smiling, and putting his hands in his jacket pockets.
• On May 21, 2014, at 5:17 p.m., Mr. Mai and the accused arrived at the unit together. Mr. Mai was wearing a hoodie-style sweater and the accused was wearing a T-shirt. Approximately seven minutes later, at 5:24 p.m., the accused left the unit, patting the front pockets of his pants.

[21] It is certainly possible that on the various occasions the accused attended at these residential units he entered and/or left the units with controlled substances such as heroin or marihuana in his possession for the purpose of aiding Mr. Mai in his drug trafficking operation. As the Crown argued, the accused might have had significant and valuable quantities of heroin hidden in his pockets, and significant and valuable quantities of marihuana secreted in the gift bags he carried. This possibility was confirmed by the expert opinion evidence of Det. Margetson. However, viewed in the context of all of the evidence, that possibility is hardly convincing proof of the guilt of the accused for the alleged offences.

[22] People put many things in their pockets that are not controlled substances. Wallets, cell phones, car keys, residence keys, money, credit cards and bank cards are just some of the valuable personal items that people commonly put in their pockets. Some people often, even habitually, check their pockets for just such personal effects, making sure that they have not been forgotten or misplaced. Some people just put their hands in their pockets for no better reason than it is a place for them to comfortably place their hands. Similarly, bags can contain anything that will physically fit inside them. They can be used to carry controlled substances; but they can be used to carry a host of other things too. That is their very purpose, to carry things. The police never followed the accused after he left these residential units to see where he went and what he might have done with whatever may have been in his pockets and/or his bags. No search warrant was ever executed at the accused’s home. The accused was never arrested after one of his visits to one of Mr. Mai’s residential units and never found in personal possession of any controlled substance.

[23] The evidence simply does not reveal what might have been in the pockets of the accused, or in the bags he carried. Further, even if the accused had a controlled substance in his pockets and/or the gift bags he carried, the Crown has not established what specific controlled substance it might have been. For example, the accused could just as easily have had cocaine in his possession instead of heroin or marihuana. The accused is not charged with trafficking in cocaine.

[24] On some of the occasions the accused attended at unit 1719, there were other men who attended before or afterwards, and sometimes during his attendance. These were not any of the men who had been convicted of drug-related offences flowing from the “Project Battery” police investigation. However, even if it could be established that the other men were in attendance for purposes of engaging in the illicit movement of controlled substances, this does not establish that the accused knew of these drug trafficking activities and somehow must have participated in them. It is apparent from the evidence gathered from the surreptitious execution of the general warrants that, almost without exception, Mr. Mai kept his controlled substances and drug trafficking paraphernalia out of plain view in unit 1719.

[25] The only time the police ever found any controlled substance in “plain view” was during their May 14, 2014 visit to unit 1719, when they found some cocaine in the bedroom, on some paper on the bottom shelf of a computer table, behind a large laundry basket (behind the bedroom door). There is, however, no evidence that the accused attended unit 1719 that day. Indeed, the covert police video surveillance did not record the accused attending the unit again until two days later, on May 16, 2014. Mr. Mai could well have been taking active steps to conceal his drugs and drug trafficking activities from his friends, such as the accused, and his family, and subsequently moved that cocaine into his locked safe or concealed it in another drawer or container, as appeared to be his habit.

C. The Motor Vehicle Evidence

[26] The Crown contends that the accused provided Mr. Mai with two motor vehicles for use in his drug trafficking operation. The evidence establishes that the accused helped Mr. Mail with these two motor vehicles and, on occasion, Mr. Mai used them in his drug trafficking activities. But the evidence does not prove, and I decline to infer, that this was done by the accused for the purpose of helping Mr. Mai in his drug trafficking activities. Indeed, I infer that the accused helped Mr. Mai with his transportation needs without knowing or intending that the vehicles would be used in any drug trafficking activities.

[27] The documentary evidence establishes that, in September of 2013, the accused became the registered owner of a grey, 2012 Mazda M3S sedan (license plate BSRS 107), and purchased insurance for the vehicle. The documentary evidence also establishes that, in December of 2013, the accused (who was then 23 years old), and an older male, named Wei Chao Mai (who was then 52 years old), and who lived in Mr. Mai’s family home, jointly leased a black, 2013 BMW 528i (license plate BTAB 128).

[28] The parties agree that, during the course of the police investigation, Mr. Mai regularly drove these two vehicles. Sometimes he drove these vehicles while engaged in legal and unexceptional activities, such as going shopping, getting a car wash, and going out to restaurants and bars. On occasion, however, Mr. Mai was observed by the police driving these vehicles while he was engaged in apparent drug trafficking activities with others.

[29] The accused was never seen in these vehicles, nor was he ever seen engaged in any of the apparent drug trafficking activities associated with these vehicles. Rather, the accused was only ever seen driving a black, 1996 Toyota CLS, (license plate BNFE-710), that was registered to Hou Cheng Chen, who lived at the Chen family home in Toronto.

[30] In his expert opinion evidence, Det. Margetson testified that it is common for drug traffickers to use motor vehicles registered in the name of someone else, to distance themselves from the vehicle should the vehicle become the subject of a police investigation. In cross-examination, Det. Margetson agreed, however, that there are other reasons that a person (including a drug dealer) might be driving a car registered to someone else. For example, such an arrangement might be financially beneficial for insurance purposes, or to permit them to have access to a vehicle despite having poor credit.

[31] The parties have agreed that, in late 2010, Mr. Mai was charged with driving a vehicle with over 80 mgs. of alcohol per 100 mls. of blood, and while that charge was ultimately withdrawn in late 2012, Mr. Mai had his driver’s license suspended for a 90 day period between December 17, 2010 and March 17, 2011. This is the kind of event that might cause an increase in an individual’s insurance premiums. Further, correspondence dated in February of 2014 was found in unit 1211 notifying Mr. Mai that his request for an increased credit limit on one of his credit cards had been declined. This letter suggests that Mr. Mai may have been having problems with his credit rating.

[32] In addition, in cross-examination, Det. Margetson agreed that, in selecting another person to register a vehicle for them to use, a drug trafficker would not want to select another person from within their drug trafficking operation, and taking such a step would be “unusual” as it would not insulate the vehicle from the drug trafficking operation. Rather, according to Det. Margetson, the drug trafficker would likely want to “drag in” someone unconnected to their drug trafficking operation. Indeed, Det. Margetson agreed that the “best practice” would be for drug trafficker to find someone with no criminal record that has nothing to do with the drug trafficking operation to be involved in the registration of their motor vehicles.

[33] While it is certainly possible, based upon this evidence, that the accused was involved in the registration of the Mazda and the BMW vehicles in order to permit the accused to use them in his drug trafficking operation, it is no more than one possibility. There are other, equally reasonable, and more benign, inferences that can also be drawn from this body of evidence, when considered against the case in its entirety. More particularly, it would be equally reasonable to infer from this evidence that Mr. Mai was not able to economically lease and insure vehicles in his own name, and saw the drug trafficking business advantage of having other entirely innocent individuals do so on his behalf. Accordingly, Mr. Mai arranged to impose upon his friend (i.e. the accused) and his own father to help him in this regard. In this way, the accused and Mr. Mai’s father unwittingly and indirectly helped Mr. Mai in his drug trafficking operation by providing him with motor vehicles. They did so, however, not knowing that he would use them to traffic in controlled substances, and not intending to help him in this regard.

D. The Fluctuation in the Quantities of Heroin and Marihuana

[34] The Crown argued that it had established that the accused was involved as a principal in the trafficking of the specific controlled substances heroin and marihuana because of the fluctuation in the amounts of those specific drugs inside unit 1719 over time, as measured by the police during their judicially authorized visits to that residential unit. I disagree. The evidence of the fluctuation of these drugs over time falls far short of proving that the accused was trafficking in these specific drugs.

[35] The parties have agreed that the police entered unit 1719 surreptitiously on three occasions pursuant to a general warrant, and once overtly pursuant to a search warrant. On each of these four occasions, the police measured the quantities of heroin and marihuana as follows:

• On April 23, 2014, the police found 61 grams of heroin in the safe, and 67 grams of marihuana in the living room dresser;
• On April 30, 2014, the police did not find any heroin in the unit, but found 188 grams of marihuana in the living room dresser;
• On May 14, 2014, the police found two quantities of heroin in separate boxes in the bedroom, totaling 34 grams, and two quantities of marihuana in the dresser drawer and the bedroom, totaling 4,572 grams.
• On May 28, 2014, the police found 50.72 grams of heroin in the bedroom, and a total of 2,603.75 grams of marihuana found in a suitcase in the hallway, the fridge in the kitchen, and in the bedroom.

[36] With respect to the fluctuation in these controlled substances, it is important to appreciate that there is no evidence that the accused attended unit 1719 between April 23 and May 14, 2014. The covert surveillance camera installed outside the entrance of the unit did not record the accused entering or exiting the unit during this three week time period, and there was no other individualized police surveillance on the accused which might have established his attendance during this time period.

[37] Accordingly, the accused could not have been responsible for (1) the 61 grams of heroin that were removed from the unit between April 23 and 30, 2014; (2) the 121 grams of marihuana that were moved into the unit between April 23 and 30, 2014; (3) the 34 grams of heroin that were moved into the unit between April 30 and May 14, 2014; or (4) the 4,384 grams of marihuana that were moved into the unit between April 30 and May 14, 2014.

[38] The accused did attend unit 1719 on May 16, 2014 at 6:06 p.m. and, therefore, theoretically could have been responsible for bringing in the additional 16.72 grams of heroin and removing 1,968.25 grams of marihuana between May 14 and May 28, 2014. However, this is no more than a theoretical and speculative possibility. The video recording of the accused attending unit 1719 on May 16, 2014 provides no evidence that he was in possession of any heroin or marihuana (or any other controlled substance) at that time. He was not carrying any bag, box, or other container of any size or description. Further, there is no video recording of the accused leaving the unit, so there is no evidence as to what, if anything, he might have had in his possession when he left. When he and Mr. Mai were subsequently captured on video entering unit 1211 later that same day, at 6:58 p.m., the accused had nothing in his hands.

[39] In any event, as I have indicated, I am not satisfied that the accused was in any way involved in the trafficking of heroin or marihuana based upon the quantitative fluctuation in the amount of those two controlled substances over time, or any other evidence in this case.

E. The Expert Evidence of Det. Margetson

[40] With the agreement of defence counsel, Det. John Margetson of the Toronto Police Service (Drug Squad), was permitted to give expert opinion evidence about the general practices and terminology of traffickers and distributors of controlled substances. The Crown argued that his evidence went a considerable distance in establishing that unit 1719 was Mr. Mai’s “stash house,” not his residence and, accordingly, the accused would only have been attending at that location if he was a trusted member of Mr. Mai’s drug trafficking operation. While I accept the testimony of Sgt. Margetson, in my view his evidence simply does not serve to connect the accused to Mr. Mai’s drug trafficking operation as the Crown suggests.

[41] Mr. Mai clearly kept a substantial variety and quantity of controlled substances in unit 1719, and was also periodically involved in the cutting of cocaine and the cooking of crack cocaine in that unit. However, as Det. Margetson confirmed in cross-examination, this unit may simply have been Mr. Mai’s residence. By its collection of contents, it certainly appeared to be the residence of a young adult male. The fact that Mr. Mai also spent time in another location (i.e. unit 1211), frequently with his girlfriend, does not mean that Mr. Mai did not reside in unit 1719. In his federal tax papers, Mr. Mai declared that unit 1719 was his “principal residence” for all 12 months of 2013. While the police did not observe Mr. Mai sleep overnight in unit 1719, it is accepted that the surveillance camera near the entrance to that unit did not operate flawlessly in recording all of the movements of people in and out of the unit.

[42] Det. Margetson testified that certain exchanges involving Ken Mai and other individuals (including the accused), that were observed by the police during their surveillance of Mr. Mai and the activities at his two residential units, were consistent with trafficking in heroin and marihuana. Det. Margetson explained that some drugs, such as heroin, can be easily concealed, in clothing and bags, and that drug transactions are often conducted quickly during brief visits where exchanges are made. He also testified that based upon the vast array of drugs discovered by the police, the quantities of those drugs that were evident to the police over a period of time, and the presence of a cutting agent in one of the residential units, it appeared that Mr. Mai was engaged in a more sophisticated, mid-range to higher-end drug trafficking operation.

[43] Further, Sgt. Margetson explained that, generally speaking, persons engaged in such a drug trafficking operation (1) will often deal in large quantities of different types of drugs; (2) will often have possession of a considerable amount of cash from drug purchasers and for buying further quantities of drugs; (3) will usually deal with a small circle of trusted individuals; (4) will not usually engage in the risky behavior of having lots of drug users and addicts frequently appearing at one location to transact their drug business; (5) will sometimes have a driver help them make their deliveries, or will use a vehicle that is owned or leased by someone else, so that they are personally insulated from the vehicle; and (6) will often list their residence as their parent’s home, which insulates them from the location employed in their drug dealing activities.

[44] Det. Margetson also testified that some of the items that the police found in the residential units connected to Mr. Mai (i.e. floor safes, digital scales, vacuum sealing devices, many different sized plastic baggies, mixing devices, money detectors/counters and cell phones) are commonly employed in this type of substantial drug trafficking operation.

[45] During his testimony, Det. Margetson also explained the important aspects of a “stash house” in a drug trafficking operation. He testified that a “stash house” is a place where a drug trafficker will sometimes keep his drugs and drug trafficking paraphernalia, and conduct illicit drug transactions with trusted individuals. Det. Margetson explained that a “stash house” is used by drug traffickers to keep themselves insulated from their drug trafficking business. As the drug traffickers do not live in their “stash house,” keep its location a closely guarded secret, and only attend there for short periods of time, they are less likely to be arrested or robbed. In other words, it is simply safer for the drug trafficker to keep their drug business separate from their personal residence.

[46] In response to a hypothetical question, Det. Margetson testified that aspects of unit 1719 were consistent with it being a “stash house.” In reaching this conclusion, Det. Margetson noted (1) the consistent presence of various drugs in significant weights; (2) the presence of a poly-drug trafficking operation where cash is not present; (3) a cutting agent and a blender suggesting that cocaine was being cut on the premises; and (4) while no one lived in the unit, the pedestrian traffic suggested the movement of drugs in and out of the unit, but not the selling of drugs directly to drug users.

[47] In cross-examination, however, Det. Margetson effectively agreed that there were aspects of unit 1719 that were not indicative of it being Mr. Mai’s “stash house.” For example, Det. Margetson agreed that it was not the “best practice” for a drug dealer to lease their “stash house” in their own name, or arrange the hydro services for the unit in their own name, or to keep documents identifying them inside the premises, or to declare in their federal tax documents that they reside primarily at the “stash house.” Det. Margetson agreed that such actions, all of which had been performed by Mr. Mai, would not serve to distance the drug dealer from their “stash house” to law enforcement agencies. In addition, Det. Margetson agreed that one of the most important features of a “stash house,” and the most salient feature in his opinion about unit 1719, was that “no one lives in the apartment.”

[48] The general physical surroundings and personal items and effects found by the police in unit 1719 included: a collection of men’s shoes at the entrance; a collection of toiletries in the bathroom; a television and video game console in the living room (together with a collection of video games and movies on DVD); larger pieces of furniture throughout the apartment; a significant collection of clothing in the closet; a bed with bedding in the bedroom; a computer table and computer set up in the bedroom; various items of food, food products and condiments in the fridge and kitchen cabinets; laundry detergent by the washer and dryer; a laundry hamper; a selection of apartment cleaning supplies; kitchen supplies and cutlery; some items of sporting equipment; some alcohol, shot glasses and devices for smoking marihuana; and a variety of personal items and art-work decorations. When Det. Margetson was advised, by way of a hypothetical question, of this evidence as to the contents of unit 1719, he agreed that this evidence was not indicative of a “stash house,” but rather appeared to suggest this was just “some guy’s apartment.” The officer also agreed that, of course, drug dealers can operate their drug trafficking business from their own personal residences.

[49] Det. Margetson also agreed, in cross-examination, that drug dealers can have family members and friends who are not in any way involved in their drug trafficking operation. Indeed, Det. Margetson agreed that, if they were conducting their drug trafficking business from their personal residence, they might want to hide the evidence of their drug dealing activities from their family and friends. They might, for example, put their drugs and drug dealing paraphernalia out of sight in a floor safe, or in closed dresser drawers.

[50] Accordingly, as I have indicated, the testimony of Det. Margetson does not establish, in the context of all of the evidence in this case, that unit 1719 served only as a “stash house” for Mr. Mai. Rather, this evidence supports the conclusion that unit 1719 was his personal residence, as well as a location from which he conducted his drug trafficking operation, and a place where Mr. Mai might periodically invite friends and associates such as the accused, while hiding his drugs and drug trafficking activities from them.

IV Conclusion

[51] In summary, as I have already indicated, based upon the whole of the circumstantial evidence in this case, I am simply not satisfied beyond a reasonable doubt as to the alleged guilt of the accused for any of the alleged offences. I am not convinced that the only reasonable or rational inference to be drawn from all of the evidence is that the accused is guilty of any of these alleged offences. Rather, another reasonable inference from this evidence is that the accused was simply a personal friend and associate of Mr. Mai, who helped him with his motor vehicles, but who was not engaged in any conspiracy with him or in any aspect of his drug trafficking operation. Accordingly, the accused is found not guilty on all charges.

Kenneth L. Campbell J. Released: June 30, 2017