Court of Appeal for Ontario

CITATION: R. v. Lu, 2016 ONCA 479

DATE: 20160616

DOCKET: C60181

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thanh Thai Lu

Appellant

Paul Calarco, for the appellant

Ian Bell, for the respondent

Heard: June 9, 2016

On appeal from the conviction entered on December 10, 2014 and the sentence imposed on March 17, 2015 by Justice Malcolm McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of possession for the purpose of trafficking in relation to four boxes of fentanyl patches, each containing five 100-microgram patches. He was sentenced to two and a half years in prison. He appeals his conviction and sentence.

[2] On October 22, 2013, the appellant drove his mother to a pharmacy to pick up her prescription for fentanyl. She gave the packages of fentanyl to the appellant, who drove her home. It was suggested at trial that the appellant forgot to give his mother the drugs. The appellant then drove to a parking lot where he met a man who happened to be under police surveillance. The appellant got into this man’s car and was arrested minutes later holding a white bag containing the fentanyl packages.

[3] The appellant argued at trial that he was holding the bag as an agent for his mother. The trial judge rejected this submission and found him guilty.

[4] The appellant submits on appeal that the trial judge misconstrued the law on agency, made factual mistakes, and reversed the burden of proof. He argues that since the trial judge’s reasons rely on the “totality of the evidence” to support the finding of guilt beyond a reasonable doubt, the errors render the verdict unsupportable.

[5] With respect to agency, the trial judge concluded that if the appellant had possessed the fentanyl as an agent for his mother, the agency would have terminated once the appellant took his mother home. In our view, the trial judge was responding to – and rejecting – the submission made by the defence at trial that the appellant was holding the drugs for his mother without the intent to sell. To the extent that the trial judge may have erred with respect to the legal definition of the termination of the agency, this was immediately remedied in his reasons when he found that regardless of whether the appellant’s mother forgot the drugs, the appellant “was about to engage in some form of trafficking” when arrested. This intent was the crucial issue and dispositive of the agency defence. The trial judge rejected the evidence that, at the point when the appellant entered the car with the Fentanyl, he was just holding the drugs for his mother. The rejection of this evidence was fatal to the agency submission.

[6] The appellant also submits that the trial judge made a serious factual error when he stated the fentanyl in the appellant’s hand was not the same fentanyl his mother had picked up that day and thus could not have been legally dispensed. Whether this was, or was not, a finding open to the trial judge on the evidence is of no moment. It was simply not relevant. The appellant had fentanyl in his hand when he entered the other car in the parking lot. Whether it was legally dispensed or not made no difference in light of the trial judge’s finding that there was an intention to sell it. This point was addressed by the judge when he held that the appellant’s intentions point “almost inexorably” to the conclusion that he was in the car with the fentanyl in hand for the purpose of trafficking, “regardless of whether these were the drugs his mother had just purchased with a valid prescription or not.”

[7] The trial judge also commented that there was no evidence as to why the appellant’s mother needed a stronger prescription for pain resulting from injuries sustained in 2008. Contrary to the appellant’s submission, the trial judge did not thereby reverse the burden of proof. The comment was in the context of the narrative and entirely irrelevant to the essential elements of the offence.

[8] In all, the trial judge concluded:

[T]he circumstances of the meeting between Mr. Lu and [the man under surveillance] are completely consistent with trafficking and little else. The simple fact that Mr. Lu met [the man under surveillance] in the parking lot leads to the obvious conclusion that there was a purpose in the meeting.... Mr. Lu had the bag of Fentanyl boxes in his hand within seconds of entering [the] car. That is evidence of an intention to do something with the drugs at that point in time and the totality of the evidence in the case establishes beyond a reasonable doubt that the only conclusion that can be drawn is that Mr. Lu had those drugs for the purpose of trafficking.

It was open to the trial judge to come to this finding on the evidence before him. That he added the words “and the totality of the evidence in the case establishes beyond a reasonable doubt…” does not mean the factual matters referred to above infected his conclusion. Indeed, we agree with the trial judge’s overall conclusions on the evidence. Had we found the errors to be significant, we would have invoked s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, on the basis that no substantial wrong or miscarriage of justice has occurred.

[9] Finally, there is no basis for this court to reduce the sentence imposed. Fentanyl is one of the most highly addictive and dangerous drugs. It is illegally obtained exactly in this way, through the misappropriation of legally dispensed prescriptions. General deterrence and denunciation are paramount factors.

[10] The appeal as to conviction and sentence is dismissed.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”