Her Majesty the Queen v. Chan
[Indexed as: R. v. Chan]
66 O.R. (3d) 577
[2003] O.J. No. 3233
Docket No. C34828
Court of Appeal for Ontario
Catzman, Feldman and Simmons JJ.A.
August 19, 2003
*Application for leave to appeal to the Supreme Court of Canada dismissed February 26, 2004 (Iacobucci, Binnie and Arbour JJ.).
Criminal law -- Attempts -- Possession of controlled substance for purpose of trafficking -- RCMP intercepting package containing more than six kilograms of heroin, removing most of drugs and arranging for controlled delivery of package -- Accused arguing that constructive possession of package after controlled delivery, then containing only one gram of heroin, was insufficient to support conviction for trafficking -- Accused conceding evidence of attempted possession for purpose of trafficking but arguing there was no such offence known to law -- Full offence made out as possession of particular amount of controlled drug not part of actus reus of offence of possession for purpose of trafficking -- Alternatively offence of attempted possession for purpose of trafficking is offence known to Canadian law -- Appeal against conviction dismissed.
Criminal law -- Drug offences -- Possession for purpose of trafficking -- RCMP intercepting package, removing over six kilograms of heroin and substituting one gram of heroin, wooden blocks and transmitter prior to controlled delivery of package -- Accused convicted of possession of controlled substance for purpose of trafficking -- Accused arguing one gram insufficient quantity to support conviction for possession for purpose of trafficking although conceding in constructive possession of that amount -- Possession of particular amount of controlled drug not part of actus reus of offence -- Appeal from conviction dismissed.
Criminal law -- Sentence -- Drug offences -- RCMP intercepting over six kilograms of heroin and substituting wooden blocks and one gram of heroin before controlled delivery -- Accused convicted of possession of controlled substance for purpose of trafficking -- Police intervention preventing possession of larger amount not mitigating sentence otherwise appropriate for large-scale heroin trafficking -- Given seriousness of drug and accused's integral involvement in offence sentence of ten years' appropriate -- Appeal from sentence dismissed.
The RCMP intercepted a package and removed over six kilograms of heroin, inserted a transmitting device and wooden blocks, and tracked the package as it continued to its destination. At the time of the controlled delivery of the package, the package contained a single gram of heroin. The trial judge found that the accused had some measure of control over the package and knew that there was heroin inside it, and, as such, that the accused was in constructive possession of the heroin. The accused was convicted of possession of heroin for the purpose of trafficking. He appealed, arguing that possession of one gram of heroin is not sufficient to found a conviction for possession for the purpose of trafficking. While the appellant conceded that there may have been evidence at trial of an attempt to possess heroin for the purpose of trafficking, he contended that there was no such offence known to Canadian criminal law. The accused also appealed the ten-year sentence imposed by the trial judge.
Held, the appeal should be dismissed. [page578]
Although relevant to proof of an accused person's intent, possession of a particular quantity of a controlled substance is not part of the actus reus of the offence of possession for the purpose of trafficking. Moreover, the trial judge did not err in concluding that the fact that the accused may have been mistaken about the quantity of heroin that was in the controlled delivery package did not detract from the accused's purpose for possessing the heroin at the moment he acquired it. Because mens rea consists of an actor's belief rather than the truth of that belief, the trial judge was entitled to rely on the evidence concerning the quantity of heroin the accused expected to receive to determine the accused's purpose for possessing heroin at the moment he received the controlled package. Further, because the specific quantity, or knowledge of the true quantity, of a controlled substance that a person possesses is not one of the attendant circumstances required for completion of the actus reus of possession for the purpose of trafficking, the accuracy of the accused's belief about the quantity of heroin in the controlled delivery package was also irrelevant to the question of whether the offence was complete. The offence was complete at the moment the accused obtained possession of the controlled delivery package containing heroin. What he would have done, or did, later, with the single gram of heroin that was in the package, was not only speculative, it was irrelevant. The fact that the accused may have attempted unsuccessfully to possess a larger quantity of heroin for the purpose of trafficking did not negate the successful aspect of his conduct; the unsuccessful attempt was subsumed within the fully completed offence.
If that conclusion was wrong and the trial judge could not have convicted the accused of possession of heroin for the purpose of trafficking, then it would be appropriate to set aside the conviction and substitute a conviction for the lesser included offence of attempted possession for the purpose of trafficking. Attempted possession of a controlled substance for the purpose of trafficking is an offence known to Canadian criminal law. The offence of possession for the purpose of trafficking, as set out in s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1999, c. 19 ("CDSA") is not itself an attempt. It is a substantive offence. There is nothing in s. 24 of the Criminal Code, R.S.C. 1985, c. C-46 to indicate that it does not apply to s. 5(2) of the CDSA.
But for the intervention of the authorities, the accused would have succeeded in his efforts to obtain possession of a much larger quantity of heroin than that which he actually received. Because the accused's efforts were frustrated only as the result of that intervention, there was no reason for reducing his sentence in any significant way from that which would have been imposed had the accused succeeded. Taking account of the quantity of heroin and the trial judge's finding that the accused was integrally involved in the transaction, the sentence of ten years' imprisonment was not demonstrably unfit.
R. v. Dungey (1979), 1979 2940 (ON CA), 51 C.C.C. (2d) 86 (Ont. C.A.); United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, consd
APPEAL by the accused from a conviction for the possession of heroin for the purpose of trafficking and from a sentence.
Other cases referred to People v. Foster, 91 N.E. (2d) 875 (1950); People v. Siu, 271 P.2d 575, 126 Cal. App. 2d 41 (C.A. 1954); R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, 118 C.C.C. 129, 26 C.R. 193; R. v. Grant, [1975] 2 N.Z.L.R. 165; R. v. Groot, 1999 672 (SCC), [1999] 3 S.C.R. 664, 144 C.C.C. (3d) 287, affg (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, 129 C.C.C. (3d) 293 (C.A.), supp. reasons at (2000), 2000 1074 (ON CA), 143 C.C.C. (3d) 576, [2000] O.J. No. 305 (QL) (C.A.); R. v. Willoughby, [1980] 1 N.Z.L.R. 66 [page579] Statutes referred to Controlled Drugs and Substances Act, S.C. 1999, c. 19, s. 2(1) "traffic", 5(1), (2) Criminal Code, R.S.C. 1985, c. C-46, s. 24 Authorities referred to Dawkins, K."Attempting to Have Possession" (1981-84) 5 Otago L. R. 172 Meehan, E.R., and J.H. Currie, The Law of Criminal Attempt, 2nd ed. (Toronto: Carswell, 2000) Stephen, J.F., A History of Law in England, Vol. 2 (London: Macmillan, 1883) Williams, G., Criminal Law: The General Part, 2nd ed. (London: Stevens, 1961)
Alan D. Gold, for appellant. Robert Frater, for respondent.
The judgment of the court was delivered by
[1] SIMMONS J.A.: -- On April 25, 2000, Gans J. convicted the appellant of possession of heroin for the purpose of trafficking and sentenced him to ten years' imprisonment.
[2] The appellant appeals against his conviction and seeks leave to appeal sentence.
Overview
[3] The trial judge found that the appellant was "an active participant" in a transaction whereby he and others obtained possession of a package containing one gram of heroin together with nine wooden blocks and a transmitting device that were planted by the police.
[4] The transaction was carried out as part of what is generally referred to as a controlled delivery. After intercepting the package and removing over six kilograms of heroin, R.C.M.P. officers inserted the transmitting device and the wooden blocks. They then tracked the package as it continued to its destination.
[5] The main issue on appeal is the legal effect of a controlled delivery where the authorities have removed all but one gram of the contraband.
[6] The appellant does not dispute the trial judge's finding that he was in constructive possession of a single gram of heroin. However, he submits that possession of one gram of heroin is not sufficient to found a conviction for possession of heroin for the purpose of trafficking.
[7] Further, although the appellant concedes that there may have been evidence at trial of an attempt to possess heroin for [page580] the purpose of trafficking, he contends that there is no such offence known to Canadian criminal law.
[8] Finally, the appellant submits that the trial judge erred in principle in imposing a sentence of ten years' imprisonment.
[9] For the reasons that follow, I would dismiss both the appeal against conviction and the appeal against sentence.
Background
[10] In April 1997, Canada Customs seized a package that arrived from Hong Kong addressed to a Canadian postal station and turned it over to the R.C.M.P. The package contained nine blocks of heroin weighing over six kilograms that had an estimated street value in excess of $2 million.
[11] After receiving the package, R.C.M.P. officers removed all of the heroin save for one gram, inserted the wooden blocks and the transmitting device, and then forwarded the package to its intended destination. Mr. Kim Thuran Tran was arrested after he retrieved the package from the postal station.
[12] As a result of his dealings with the police, Mr. Tran informed them of his involvement with the appellant and agreed to assist them in continuing the controlled delivery. The police placed a wiretap on Mr. Tran's cellular telephone and began surveillance. Between May 26 and May 29, 1997, police taped ten telephone calls from Mr. Tran to the appellant.
[13] On May 24, 1997, police observed Mr. Tran meeting the appellant behind a donut shop at a plaza. The appellant attended the meeting with Mr. Zhong. The meeting was interrupted unexpectedly by a routine police patrol. However, Mr. Tran came away with $3,000, and, within a few hours, he had arranged another meeting with the appellant, two days later, at the same plaza.
[14] On May 26, 1997, the appellant arrived at the plaza as planned. Mr. Zhong and another man met briefly with the appellant inside a restaurant and then returned to their vehicles. Within minutes, Mr. Tran arrived at the plaza in a taxi driven by an R.C.M.P. officer. Mr. Tran was carrying the controlled delivery package in a gym bag. He handed the gym bag to one of the two men who met the appellant in the restaurant and, in return, received a bag containing $7,020. Soon after the exchange, the appellant and the two other men left the plaza in their respective vehicles.
[15] Approximately ten minutes later, the appellant telephoned Mr. Tran complaining that the "box was no good". He instructed Mr. Tran to meet him and made several further telephone calls to Mr. Tran in the interval. After meeting with Mr. Tran again, the appellant was arrested. [page581]
[16] Following his arrest, the appellant told the police that a person he knew in Hong Kong telephoned and instructed him to give money to a person named Old Chung. He said that he drove to the plaza as the result of the telephone call and gave the money to Mr. Zhong.
[17] The evidence at trial consisted primarily of wiretap evidence and the testimony of a number of police officers who carried out the surveillance. Mr. Tran did not testify. Counsel informed the trial judge that he was considered "a manifestly unreliable and untrustworthy witness". In addition, counsel agreed on the following facts:
The R.C.M.P. removed virtually all of the heroin from the original package, save . . . for one gram which was adhered to the hollow of one of the nine replacement wooden blocks. Its exact location was unknown.
. . . the heroin placed in the package may or may not have been seen upon opening by those to whom the package was given.
The R.C.M.P. had inserted a transmitting device in the package, as well, which was about the size of a computer mouse . . . [and] would have been observable by anyone opening the box.
The Trial Judge's Findings
[18] The trial judge rejected the appellant's contention that he was a mere delivery person for the actual recipient of the package and that he was unaware of the nature of the transaction. That finding is not in issue on appeal.
[19] Based on findings that the appellant had some measure of control over the package and knew that there was heroin inside it, the trial judge concluded that the appellant was in constructive possession of the heroin.
[20] On the issue of control, the trial judge noted that the appellant was instrumental in arranging the first meeting with Mr. Tran and found that that meeting was "the precursor to the ultimate hand-over on the 26th". He concluded that the appellant "was an active participant" in the transaction, that he "had an integral rather than a passive involvement", and therefore that he had "some element or measure of control over the transaction".
[21] On the issue of knowledge, the trial judge rejected a submission that the Crown had not established possession because it failed to prove that the recipient(s) had discovered the single gram of heroin that was secreted in the package. The trial judge said:
While this argument has some superficial appeal, it fails to consider the fact that the "recipients" of the package were in possession of the drugs the moment of the hand-over, whether they uncovered its whereabouts or not [page582] after the fact. The offence was completed the moment of the transfer, whether they looked inside or not . . .
From all the surrounding circumstances, it is fair to conclude that the recipients expected to receive and did receive heroin, albeit in much diminished quantity. This last mentioned fact does not, in my opinion, alter their knowledge of the nature and quality of the drug.
[22] Finally, the trial judge concluded that the appellant's expectation that he would be receiving a substantial quantity of heroin was sufficient to warrant a conviction for the offence of possession for the purpose of trafficking. On this issue, the trial judge said:
Finally, the mere fact that the accused was in possession of but one gram of heroin does not mandate a conviction for simple possession of that quantity only. Again, the reduced quantity necessitated as part of the controlled [delivery] is irrelevant to that consideration. The accused anticipated a significant quantity of heroin, if not the full six kilos. The actions and activities of the accused described above, culminating with the last payment of money to Tran and the "chase" thereafter, are more consistent than not with the fact that the "recipients" were involved in trafficking than in any other illegal enterprise.
Analysis
(i) Conviction appeal
(a) Was it open to the trial judge to convict the appellant of possession of heroin for the purpose of trafficking?
[23] The appellant submits that, because the controlled delivery package contained only a single gram of heroin, it was not open to the trial judge to convict him of possession of heroin for the purpose of trafficking. In particular, the appellant contends that possession of a single gram of heroin is not sufficient to constitute the offence because an element of the actus reus is missing. He relies on the evidence of the officer-in-charge that possession of a gram of heroin is counter-intuitive to the notion of trafficking. Further, he claims that possession of a single gram of heroin is qualitatively different from possession of six kilograms of heroin, and that proof of an intention to traffic the larger quantity is not transferable to a single gram.
[24] Put another way, the appellant contends that one gram of heroin is not a traffickable quantity. Accordingly, proof that he intended to traffic a larger quantity cannot constitute proof that he intended to traffic the single gram that he possessed. Possession of a single gram of heroin therefore is not sufficient to constitute the actus reus of the offence of possession of a controlled substance for the purpose of trafficking. Properly analyzed, the [page583] transaction can only be treated as an attempt to possess heroin for the purpose of trafficking.
[25] Finally, the appellant contends that it was never part of the Crown's theory that he was in possession of a single gram of heroin for the purpose of trafficking.
[26] I reject the appellant's submissions for three reasons.
[27] First, in my view, possession of a particular quantity of a controlled substance is not part of the actus reus of the offence of possession for the purpose of trafficking.
[28] The offence of possession for the purpose of trafficking is set out in s. 5(2) of the Controlled Drugs and Substances Act:[^1]
5(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.[^2]
[29] "Traffic" is defined in s. 2(1) of the Controlled Drugs and Substances Act:
"Traffic" means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b),
otherwise than under the authority of the regulations.
[30] Section 5(2) of the Controlled Drugs and Substances Act sets out two components of the actus reus of the offence that it creates: (i) that the accused possess a substance; and (ii) that the substance possessed actually be a substance named in one of the schedules to the act.
[31] The relevant authorities establish that the mens rea of the offence includes knowledge of the nature of the substance in the sense that an accused person must believe that it is a controlled substance[^3]. Further, s. 5(2) specifically requires that the accused person possess the controlled substance for the purpose of trafficking.
[32] Notably however, none of s. 5(2), the definition of "traffic", or the relevant authorities refers to quantity or to knowledge of a [page584] particular quantity as an element of the offence or as a component of the actus reus.
[33] That said, the quantity of a controlled substance that an accused person possesses often plays a role in determining whether an inference of possession for the purpose of trafficking should be drawn. However, the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence.
[34] As noted, neither s. 5(2) of the Controlled Drugs and Substances Act nor the definition of traffic, nor the relevant authorities stipulate that quantity is a part of the actus reus of the offence. Moreover, as a matter of logic, the fact that a person in possession of illicit drugs would or would not traffic the particular quantity of drug that he possesses should not govern the factual question of purpose. For example, the fact that a retailer or wholesaler of illicit drugs would not generally traffic less than a particular quantity should not preclude a conviction for possession for the purpose of trafficking where it is established that that individual planned to add to the smaller quantity so that he would have a quantity suitable for trafficking.
[35] Accordingly, although relevant to proof of an accused person's intent, I conclude that the quantity of a controlled substance that an accused person possesses does not form part of the actus reus of the offence of possession for the purpose of trafficking.
[36] Second, I specifically reject the appellant's submission that there is any issue concerning whether his intent in relation to the larger quantity he arranged to purchase is transferable to a single gram or that the trial judge made any error in finding that he possessed heroin for the purpose of trafficking.
[37] The trial judge based his finding concerning the appellant's purpose on the quantity of heroin that the appellant anticipated receiving as well as the circumstances surrounding the transaction that the appellant arranged. It is implicit in the trial judge's reasons that he concluded that the fact that the appellant may have been mistaken about the quantity of heroin that was in the controlled delivery package did not detract from the appellant's purpose for possessing that heroin at the moment when he acquired it.
[38] I see no error in this approach.
[39] In United States of America v. Dynar[^4], the Supreme Court of Canada explained the role of belief and the truth of an actor's belief in the elements of a criminal offence. In particular, Cory [page585] and Iacobucci JJ. noted that because mens rea is the subjective element of a crime, it consists of an actor's belief, rather than the truth of that belief. On the other hand, the truth of an actor's belief can be "one of the attendant circumstances that is required if the actus reus [of the particular offence] is to be completed". This occurs, for example, when knowledge of a particular matter is an element of the offence. Paragraphs 68 to 72 of their reasons warrant full review:
Both s. 462.31(1) of the Criminal Code and s. 19.2(1) of the Narcotic Control Act require knowledge that the property being laundered is the proceeds of crime. It is tempting to think that knowledge is therefore the mens rea of these offences. But "mens rea" denotes a mental state. Mens rea is the subjective element of a crime. See Williams' Textbook of Criminal Law . . . at p. 71. Knowledge is not subjective, or, more accurately, it is not entirely subjective.
As we have already said, knowledge, for legal purposes, is true belief. Knowledge therefore has two components -- truth and belief -- and of these, only belief is mental or subjective. Truth is objective, or at least consists in the correspondence of a proposition or mental state to objective reality. Accordingly, truth, which is a state of affairs in the external world that does not vary with the intention of the accused, cannot be a part of mens rea . . .
The truth of an actor's belief that certain monies are the proceeds of crime is something different from the belief itself. That the belief is true is one of the attendant circumstances that is required if the actus reus is to be completed. In other words, the act of converting the proceeds of crime presupposes the existence of some money that is in truth the proceeds of the offence.
In this, the money-laundering offences are no different from other offences. Murder is the intentional killing of a person. Because a person cannot be killed who is not alive, and because a killing, if [it] is to be murder must be intentional, it follows that a successful murderer must believe that his victim is alive . . . [t]hus, the successful commission of the offence of murder presupposes both a belief that the victim is alive just before the deadly act occurs and the actual vitality of the victim at that moment. Both truth and belief are required. Therefore, knowledge is required. But this does not mean that the vitality of the victim is part of the mens rea of the offence of murder. Instead, it is an attendant circumstance that makes possible the completion of the actus reus, which is the killing of a person.
In general, the successful commission of any offence presupposes a certain coincidence of circumstances. But these circumstances do not enter into the mens rea of the offence. As one author observes, it is important "to keep separate the intention of the accused and the circumstances as they really were".
(Citation omitted)
[40] Applying the principles set out in Dynar to the facts of this case, because mens rea consists of an actor's belief rather than the truth of that belief, the trial judge was entitled to rely on the evidence concerning the quantity of heroin the appellant expected to receive to determine the appellant's purpose for possessing heroin [page586] at the moment he received the controlled delivery package. Put another way, the truth of the appellant's belief about the quantity of heroin in the controlled delivery package when he acquired it was irrelevant in determining his purpose at that moment.
[41] Further, because the specific quantity, or knowledge of the true quantity, of a controlled substance that a person possesses is not "one of the attendant circumstances" required for completion of the actus reus of possession for the purpose of trafficking, the accuracy of the appellant's belief about the quantity of heroin in the controlled delivery package was also irrelevant to the question of whether the offence was complete.
[42] All of that said, the troubling aspect of this case is the disharmony that seems to arise from drawing an inference about the appellant's purpose for possessing a single gram of heroin based on his expectation of receiving a larger quantity. However, the apparent disharmony disappears when one recognizes that the appellant obtained part of what he had arranged to purchase and that the appellant's mistaken belief about the quantity of drugs in the controlled delivery package does not alter mens rea.
[43] In my view, the offence of possession for the purpose of trafficking was complete in this case at the moment the appellant obtained possession of the controlled delivery package containing heroin. What the appellant would have done, or did, later, with the single gram of heroin that was in the package, is not only speculative, it is irrelevant.
[44] Further, the fact that the appellant may have attempted unsuccessfully to possess a larger quantity of heroin for the purpose of trafficking does not negate the successful aspect of his conduct; the unsuccessful attempt is subsumed within the fully completed offence.
[45] Third, dealing with the appellant's submission that it was never part of the Crown's theory that he was in possession of a single gram of heroin for the purpose of trafficking, the indictment in this case did not particularize a specific quantity of heroin. Moreover, while the Crown may be bound to prove formal particulars (subject to the surplusage rule), it is not obliged to prove a specific theory of its case[^5].
[46] As I have concluded that it was open to the trial judge to convict the appellant of possession of heroin for the purpose of trafficking, I would dismiss the appeal against conviction. [page587]
(b) Does the offence of attempted possession for the purpose of trafficking exist in Canadian law?
[47] Even if I am wrong in concluding that it was open to the trial judge to convict the appellant of possession of heroin for the purpose of trafficking, I would not give effect to the appellant's submission that an acquittal should be entered. Rather, I would set aside the conviction for the offence as charged and substitute a conviction for the lesser but included offence of attempted possession for the purpose of trafficking.
[48] The appellant submits that attempted possession for the purpose of trafficking is not an offence known to Canadian criminal law and that this court should refuse to extend the limits of criminal liability by holding that it exists.
[49] There are two main components of the appellant's position.
[50] First, attempted possession for the purpose of trafficking is not an offence that is properly subject to the law of attempt as set out in s. 24 of the Criminal Code, R.S.C. 1985, c. C-46.
[51] Second, criminal law policy does not support the criminalization of conduct that could amount to attempted possession for the purpose of trafficking. If criminalization is necessary to address the specific problem presented by controlled deliveries, that issue should be addressed by specific legislation.
[52] Beginning with the first component of the appellant's submissions, the appellant contends that the offence of possession for the purpose of trafficking as set out in s. 5(2) of the Controlled Drugs and Substances Act is itself an attempt. He says that s. 5(2) seeks to punish the state of being prepared to traffic, and that it is therefore the equivalent of attempting to traffic, which arises by applying s. 24 of the Criminal Code to s. 5(1) of the Controlled Drugs and Substances Act.
[53] Relying on comments by J. Stephen in A History of the Criminal Law of England[^6], the appellant contends that it has long been recognized that, because of their inherent character as attempts, there are certain offences that are not subject to the law of attempt. In addition, he relies on R. v. Dungey[^7], in which this court held that attempting to conspire to defraud is not an offence because to hold otherwise would be "tantamount to convicting a person of an attempt to attempt to defraud". [page588]
[54] The appellant therefore submits that s. 24 of the Criminal Code should not be applied on what is effectively a second occasion to create an offence of attempting to attempt to traffic.
[55] Further, the appellant submits that there is a conceptual shortcoming in applying the law of attempt to possession offences. In particular, he says that the only acts that are sufficiently proximate to the offence of possession to justify a finding of attempt are the acts of obtaining or acquiring the controlled substance. However, as those are the very acts by which the crime of possession is consummated, they cannot also constitute the act or omission required for an attempt[^8].
[56] Turning to the second component of his submissions, the appellant contends that, because possession for the purpose of trafficking punishes the state of being prepared to traffic, it is essentially a form of inchoate criminality. He submits that, in the absence of specific legislative direction, reaching back one step further and punishing an attempt to achieve a state of being prepared to attempt to traffic extends the reach of the criminal law too far. Again, the appellant relies on this court's holding in Dungey that it would extend the criminal law too far to find that there is an offence of attempting to conspire to defraud.
[57] I do not accept the appellant's submissions for three reasons.
[58] First, as I read s. 5(2) of the Controlled Drugs and Substances Act, Parliament saw fit to express what the appellant characterizes as an attempt in the form of a substantive offence. Moreover, the law of attempt is codified in Canada in s. 24 of the Criminal Code. I see nothing in s. 24 to indicate that it does not apply to s. 5(2) of the Controlled Drugs and Substances Act.
[59] I will repeat s. 5(2) of the Controlled Drugs and Substances Act for ease of reference:
5(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV[^9].
[60] On a plain reading of s. 5(2), possession for the purpose of trafficking appears to have been enacted as a substantive offence. Put another way, the section is not expressed in language indicating that the offence created by the section is attempting to traffic. [page589]
[61] Turning to s. 24 of the Criminal Code, it provides as follows:
24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
[62] As already stated, I see nothing in s. 24 to indicate that it was not intended to apply to s. 5(2) of the Controlled Drugs and Substances Act[^10].
[63] Second, I do not accept the appellant's submission that there is a conceptual shortcoming in applying the law of attempt to possession for the purpose of trafficking. For example, in this case, had the police removed all of the heroin from the controlled delivery package, the appellant's act of acquiring possession of the package would not have consummated possession of a controlled substance, because there would have been no controlled substance to possess. Accordingly, the fact that the appellant's act of acquiring the package would have consummated the act of possession had the authorities not intervened should not preclude conviction based on the law of attempt where the authorities' intervention prevented consummation of the complete offence.
[64] Further, although s. 24(2) of the Criminal Code makes it clear that acts that amount to "mere preparation" are "too remote to constitute an attempt", it is not difficult to imagine circumstances in which acts or omissions falling short of obtaining possession would be sufficiently proximate to evidence an attempt. Taking this case as an example once again, had the police intervened at a point when Mr. Tran was about to hand the controlled delivery package to Mr. Zhong and Mr. Zhong was about to hand the money to Mr. Tran, I see no impediment to holding that Mr. Zhong's actions were sufficient to constitute an attempt.
[65] Third, I do not agree that either this court's decision in Dungey or criminal law policy support the appellant's position that the offence of attempted possession for the purpose of trafficking does not exist. [page590]
[66] In reaching the conclusion in Dungey that it would extend the criminal law too far to find that there is an offence of attempting to conspire to defraud, Dubin J.A. pointed out at p. 95 C.C.C. that conspiracy criminalizes behaviour that may not have reached a preparatory stage equivalent to that of an attempt:
. . . if the object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, there appears to be little justification in attaching penal sanction to an act which falls short of a conspiracy to commit the substantive offence.
In the instant case, the substantive offence was fraud. To hold that there is an offence of attempting to conspire to defraud is tantamount to convicting a person of an attempt to attempt to defraud.
[67] Clearly Dubin J.A. had two issues in mind: (1) the progressive stages of behaviour that culminate in the commission of a crime, i.e. thinking about committing a crime, preparing to commit a crime, attempting to commit a crime, and actually committing the crime; and (2) where in that progression the criminal law should intervene. Accordingly, when applying Dungey to other cases, the focus must be on where in the progressive stages leading to the commission of a crime the particular conduct falls and whether the criminal law should intervene at that stage.
[68] In my view, although possession for the purpose of trafficking shares certain characteristics of inchoate offences such as counselling and conspiracy, it also reflects a progression in behaviour that has reached the stage of criminal conduct.
[69] Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. It can thus be appreciated that it could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts. However, although possession for the purpose of trafficking precedes the substantive offence of trafficking, it can hardly be said that it does not, of itself, inflict harmful consequences. It represents a state of affairs in which preparatory behaviour has crystallized into the acquisition of a controlled substance. This state of affairs is in itself harmful to society and the level of harm is exacerbated by the accompanying purpose of trafficking.
[70] In my view, possession for the purpose of trafficking reflects a progression in behaviour sufficiently advanced to warrant reaching behind it and criminalizing behaviour that amounts to an attempt to achieve that state of affairs. I see no policy justification for refusing to make it subject to the law of attempt. I would not give effect to this alternative ground of appeal. [page591]
(ii) Did the trial judge err in principle in imposing a sentence of ten years' imprisonment?
[71] The appellant contends that the trial judge erred in principle in two respects in imposing a sentence of ten years' imprisonment.
[72] First, taking account of the circumstances of the appellant, his involvement in the offence, the six-year sentence imposed on Mr. Tran, and the fact that the appellant's actions consisted primarily of an attempt, the trial judge erred by imposing a sentence that is demonstrably unfit. Second, the trial judge erred by relying on two authorities that involved charges of importing heroin rather than possession for the purpose of trafficking.
[73] I do not accept either submission.
[74] It is clear that, but for the intervention of the authorities, the appellant would have succeeded in his efforts to obtain possession of a much larger quantity of heroin than that which he actually received. Because the appellant's efforts were frustrated only as the result of that intervention, I see no reason for reducing his sentence in any significant way from that which would have been imposed had the appellant succeeded. For the same reason, even if I am wrong in my conclusion that it was open to the trial judge to convict the appellant for the full offence and the appellant should have been convicted only for an attempt, I do not view that as a basis for reducing the sentence that was imposed.
[75] Taking account of the quantity of heroin and the trial judge's finding that the appellant was integrally involved in the transaction, in my view, the sentence of ten years' imprisonment that the trial judge imposed is not demonstrably unfit. Although Mr. Tran received a substantially lower sentence, that sentence was justified in light of his plea of guilty and the fact that he co-operated with the police. Therefore, the disparity between the sentences does not create an error in principle.
[76] Turning to the appellant's second submission, in my view, the references the trial judge made to the two decisions involving importing charges did not give rise to an error in principle. The first reference related to the gravity of narcotics importation in the overall drug distribution scheme and the resulting importance of general deterrence in sentencing. However, the trial judge recognized that the reference related to importing and moved from it to the pernicious and devastating effects of heroin.
[77] The second reference related to the gravity of importing heroin but also dealt with the damage heroin causes in the community.
[78] In both instances, the trial judge made it clear by his comments that he was alive to the distinction between the charges. [page592] While it may have been preferable had the trial judge confined himself to authorities dealing with like offences, I see no error in principle arising from the two references.
Disposition
[79] For the reasons given, I would dismiss the appeal against conviction, grant leave to appeal sentence, and dismiss the sentence appeal.
Appeal dismissed.
Notes
[^1]: S.C. 1996, c. 19. [^2]: Heroin is item 10 in Schedule 1. [^3]: R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, 118 C.C.C. 129; United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, 115 C.C.C. (3d) 481; and see also the quotation at para. 39 below. [^4]: Supra, footnote 3. [^5]: R. v. Groot (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, 129 C.C.C. (3d) 280, 129 C.C.C. (3d) 293 (C.A.), supp. reasons at 2000 1074 (ON CA), [2000] O.J. No. 305 (QL), 143 C.C.C. (3d) 576 (C.A.). [^6]: J.F. Stephen, A History of Criminal Law in England, vol. 2 (London: Macmillan, 1883), at p. 227. [^7]: (1979), 1979 2940 (ON CA), 51 C.C.C. (2d) 86 (Ont. C.A.), at p. 95. [^8]: R. v. Grant, [1975] 2 N.Z.L.R. 165; but see also I. Dawkins"Attempting to Have Possession" (1981-84), 5 Otago L.R. 172; R. v. Willoughby, [1980] 1 N.Z.L.R. 66; People v. Foster, 91 N.E. (2d) 875 (1950); and People v. Siu, 271 P. (2d) 575, 126 Cal. App. 2d 41 (1954). [^9]: Heroin is item 10 in Schedule I. [^10]: See E.R. Meehan and J.H. Currie, The Law of Criminal Attempt, 2nd ed. (Toronto: Carswell, 2000), at p. 263; citing G. Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens 1961), at p. 615.