COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chanmany, 2016 ONCA 576

DATE: 20160719

DOCKET: C57253

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Velle Chanmany

Appellant

Andrew Menchynski and Candice Suter, for the appellant

Kevin Wilson and Sobia Virk, for the respondent

Heard: April 13, 2016

On appeal from the convictions entered by Justice Michael R. Dambrot of the Superior Court of Justice on April 5, 2013, and from the sentence imposed on September 9, 2013, with reasons reported at 2013 ONSC 1937 and 2013 ONSC 5623.

By the Court:

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of one count each of possession of methamphetamine for the purpose of trafficking and possession of the proceeds of crime. The judge imposed concurrent sentences of eight and one-half years for possession for the purpose of trafficking and 18 months for possession of the proceeds of crime.

[2] The appellant appeals his convictions and seeks leave to appeal his sentence on the conviction of possession for the purpose of trafficking.

[3] For the reasons that follow, we dismissed the appeal from conviction, granted leave to appeal sentence, but dismissed the appeal from sentence except to the extent that the sentence imposed for possession for the purpose of trafficking is reduced by 65 days.

The Background Facts

[4] The appellant was among several targets of a lengthy drug investigation that included both audio and physical surveillance.

[5] In late April 2008, police seized 52 kilograms of methamphetamine from a van. The driver and passenger in the van were released without charges being laid. Shortly thereafter, officers dismantled a methamphetamine superlab. They did not arrest the operator of the lab, Sataya Vongkosy.

[6] About a week later, police were conducting audio and physical surveillance on the appellant. About 40 minutes after the appellant and Vongkosy spoke by telephone, the appellant arrived at the residence of Vongkosy’s parents. He entered the premises empty-handed. About ten minutes later, he emerged carrying a bright yellow shopping bag and another dark-coloured bag. Both bags appeared to be full and heavy. The appellant put both bags in the rear seat of his vehicle and drove away.

[7] The appellant knew he was under police surveillance. He drove in a manner consistent with counter-surveillance. He took an indirect route to the downtown area. His speed increased then decreased. He popped in and out of “unsensible” side streets. In order to avoid detection, police followed his route by GPS.

[8] The appellant parked his car in a surface parking lot in the entertainment district, paid the attendant, and left on foot. Police did not follow him. Instead, they maintained physical surveillance on the appellant’s car throughout the night.

[9] At around five o’clock the following morning, police executed a general warrant on the appellant’s vehicle. They smashed the driver’s side rear window. On the rear seat, they found a laundry hamper, a black satchel, and two laundry bags. Inside one laundry bag was a yellow bag. The police left the damaged car at the parking lot and returned to the station. Inside the yellow bag, police found seven vacuum-sealed one-kilogram bags of methamphetamine and, in the black satchel, $1,800 in $20 bills.

[10] The appellant returned to his vehicle about 6 hours later.

Positions of the Parties at Trial

[11] At trial, the Crown contended that the appellant collected the yellow bag and its contents from the home of Vongkosy’s parents. Aware of police surveillance, he followed a circuitous route to the entertainment district, parked and secured his vehicle, and left the area to avoid being apprehended in physical possession of the methamphetamine. The Crown relied on the amount and packaging of the methamphetamine to establish the purpose of its possession. The appellant did not dispute that the currency was the proceeds of trafficking, albeit not in methamphetamine.

[12] The appellant testified at trial. He acknowledged that he began trafficking in cocaine in 2004, graduating to the kilogram level in 2006. The drugs were fronted by another and sold in one to two kilogram amounts at the price of $25,000 to $30,000 per kilogram. He denied ever selling methamphetamine. His currency was cocaine.

[13] The appellant denied picking up a yellow bag or bringing anything else out of Vongkosy’s parents’ home. His relationship with Vongkosy, he said, was purely social. He took counter-surveillance measures after leaving Vongkosy’s parents’ home because he had seen what he believed was an unmarked police vehicle and assumed the police would follow him. He left the parking lot in a cab to go drinking with a friend at a karaoke bar. He stayed at the friend’s home overnight. The money in the satchel on the rear seat of his car was rent money for his apartment.

[14] At trial, counsel for the appellant (not counsel on appeal) argued that the drugs the police claimed to have found in the yellow bag on the back seat of the appellant’s car were diverted from the earlier 52-kilogram seizure and planted as evidence against the appellant.

The Conviction Appeal

[15] The appellant advances four grounds of appeal against conviction. He submits that the trial judge erred:

i in rejecting the appellant’s defence not on the basis of the evidence adduced at trial but on the footing that police testimony is presumptively trustworthy;

ii in applying a harsher or stricter level of scrutiny to the testimony of the appellant than he brought to bear on the testimony of the police officers;

iii in misapprehending the significance of several pieces of critical evidence; and

iv in relying on speculation to fill evidentiary gaps in the case for the Crown.

Ground #1: The Presumed Truthfulness of Police Witnesses

[16] The appellant contends that the trial judge erred by assessing the appellant’s defence from the starting point of the presumed truthfulness of the police witnesses who testified. The presumption was variously expressed in conclusory statements about the defence position that did not reflect the trial record.

[17] For several reasons, we reject this claim of error.

[18] First, the trial judge neither stated nor applied any such principle. His reasons, read as a whole, belie any suggestion that he began his analysis of the evidence from any presumption of truthfulness of the police witnesses who testified or of police officers generally.

[19] Second, the trial judge directly contradicts the claim advanced, at para. 125 of his reasons:

I do not for a second presume that a police officer would not frame an innocent person, however distasteful that possibility may be.

[20] Third, the rejection of the appellant's evidence had nothing to do with any presumed truthfulness of police witnesses. The trial judge advanced cogent reasons for rejecting the defence evidence, reasons fully supported by the evidence adduced at trial.

[21] Fourth, the trial judge did not presume the integrity of the Toronto Police Services’ drug repository scheme. Nor did he invoke any such presumption as the basis upon which he rejected the defence position that the methamphetamine officers claimed to have found in the appellant’s car had been removed from an earlier seizure and planted in the appellant’s vehicle to inculpate him in the offence charged.

[22] The trial judge rejected the defence position that any drugs found in the appellant’s car had been diverted from a previous seizure because the record contained no evidence to support the claim. The trial judge concluded as follows, at para. 125 of his reasons:

I do not for a second presume that a police officer would not frame an innocent person, however distasteful that possibility may be. But I must concede that the idea of an officer obtaining seven kilos of methamphetamine from some other source and then falsely attributing it to an innocent person is a big bite to chew. I do not presume that it could not happen, but it is an unlikely scenario. Nonetheless, in this case, there is a source for Asselin to have obtained seven kilos of methamphetamine to falsely attribute to Chanmany – the large methamphetamine seizure on April 29, 2008. However implausible it may be, it is not impossible. Still, to have done so, particularly given the checks and balances of the drug repository system, would have required either large-scale police corruption, or incredibly clever misfeasance on the part of Asselin, with the ready and unplanned cooperation at the very least of Shank. There is not a tittle of evidence of either in this case, but it remains a possibility. But a possibility is a far cry from a reasonable doubt. What else is there in this case that could raise a reasonable doubt?

[23] The trial judge heard evidence about some of the checks and balances in the drug repository system. The conclusions he reached – that there were drugs in the appellant’s car and that they did not originate in another seizure – were firmly rooted in the totality of the evidence, not a conclusion premised on the invocation of any presumed integrity of the drug repository system or truthfulness of police officers.

Ground #2: Uneven Scrutiny of the Appellant’s Evidence

[24] The appellant contends that the trial judge applied uneven scrutiny to the appellant’s testimony when considered against that of the police witnesses for the Crown. The trial judge, the appellant says, dismissed or minimized inconsistencies in the prosecution evidence but rejected his evidence on the basis of inconsistencies of equivalent or lesser significance. Further, the trial judge minimized gaps in the evidence tendered by the Crown but rejected defence evidence because it contained gaps. Finally, the trial judge rejected the appellant’s evidence because of his interest, as the person charged, in the outcome of the proceedings but failed to consider the interests of police witnesses in obtaining a conviction when assessing their credibility and the reliability of their evidence.

[25] For several reasons, we do not give effect to this ground of appeal.

[26] We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.

[27] An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.

[28] Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions: Howe, at para. 59.

[29] The appellant’s submissions fall well short of what is required to succeed on the “uneven scrutiny” argument advanced. The appellant’s argument proceeds on the basis that the rejection of the appellant’s testimony and the acceptance of the police evidence reflects uneven scrutiny. This is an argument that moves in a circle. It is a burnished version of the submission that another judge could have assessed credibility differently. This self-evident proposition does not establish that this judge subjected the evidence of the police and the testimony of the appellant to different standards of scrutiny.

[30] Second, the trial judge did not reject the appellant’s suggestion of police dishonesty because of some imbalance in his assessment of the evidence. The trial judge grounded his rejection of this claim on the basis that there was no evidence to support it. He considered the submission amounted to a mere possibility and rejected it as incapable of raising a reasonable doubt.

[31] Third, the trial judge did not reject the appellant’s testimony because the appellant had an interest in the outcome of the proceedings. Indeed, the trial judge did not even mention the appellant’s interest as a reason for rejecting his evidence. The trial judge fairly evaluated the appellant’s evidence and found it unworthy of belief. One factor that tolled heavily against the appellant was his claim that he had ceased dealing drugs after being stopped by police on a specific date. But the date was a moving target. His trial counsel asked to re-open the appellant’s examination-in-chief to “correct” the date. Other dates were offered in cross-examination when intercepted private communications suggesting subsequent drug dealing were put to the appellant. Other factors included implausibilities in the appellant’s description of his relationship with fellow trafficker, Vongkosy.

Ground #3: Misapprehension of Evidence Undermining the Case for the Crown

[32] The appellant contends further that the trial judge erred by misapprehending several items of evidence that undermined the case for the Crown. The appellant says that the trial judge:

i. failed to consider evidence that demonstrated the appellant was a paranoid, ultra-cautious individual when concluding that he was a risk-tolerant methamphetamine dealer;

ii. gave improper effect to evidence of the friendship between the appellant and Vongkosy in concluding that the appellant and Vongkosy were engaged in a joint venture of trafficking in methamphetamine; and

iii. failed to properly consider that Vongkosy’s absence from his parents’ residence when the appellant attended there undermined the Crown’s theory.

[33] We reject this ground of appeal.

[34] To take first the submission that the trial judge failed to consider evidence that the appellant was a paranoid, ultra-cautious individual when concluding that he was a risk-tolerant trafficker in methamphetamine, this submission mischaracterizes a passage in the trial judge’s reasons. The trial judge did not fail to consider the apparent paradox in the appellant’s behaviour. The trial judge noted that the appellant usually had others pick up cocaine for him but, from time to time, transported the drug in his own motor vehicle.

[35] The essence of the appellant’s complaint is that he disagrees with the weight the trial judge assigned to this evidence. In considering the appellant’s risk tolerance, the trial judge gave greater weight to the appellant’s continued involvement in trafficking while under surveillance. Drug trafficking is a risky business for transporters and non-transporters alike. Criticizing a trial judge’s weighing of the evidence is bound to fail in this court.

[36] Second, the claim that the trial judge gave improper effect to the appellant’s friendship with Vongkosy when he used it to support a conclusion that they were in a joint venture to traffic in methamphetamine.

[37] Once again, the appellant’s submission mischaracterizes the trial judge’s reference to the relationship between Vongkosy and the appellant.

[38] The appellant admitted a close friendship with Vongkosy and described the activities in which they participated together. Both were drug dealers. Yet the appellant steadfastly refused to acknowledge that their close connection included drug dealing. The trial judge considered the appellant’s characterization of their relationship implausible, one of several implausibilities in his testimony. Among other things, the trial judge considered an accumulation of implausibilities in the appellant’s testimony as a reason to reject it. He did not use evidence of the friendship between Vongkosy and the appellant as a piece of evidence that could or tended to show a joint venture in methamphetamine trafficking.

[39] Whether the appellant and Vongkosy were in the methamphetamine distribution business together was not an essential element of the offence with which the appellant was charged and the Crown was bound to prove. The drug offence with which the appellant was charged was established by the presence of the drugs in his car. The fact that the drugs were in the yellow bag was evidence that he had received them, directly or indirectly, from Vongkosy. But the appellant’s source, from whom or from where he got the drugs, was not an essential element of the offence with which he was charged.

[40] Third, the failure of the trial judge to properly consider the effect of Vongkosy’s absence from his parents’ residence when the appellant picked up the yellow bag later found in his car and containing methamphetamine.

[41] Once again, Vongkosy’s whereabouts when the appellant picked up the yellow bag was neither here nor there to the appellant’s potential liability for the offence charged.

Ground #4: Speculative Reasoning to Find Guilt Proven

[42] The appellant also faults the trial judge for engaging in speculative reasoning to fill in gaps in the case for the Crown and to conclude that the appellant’s guilt had been established beyond a reasonable doubt. He cites three instances of what he characterizes as speculative reasoning:

i. concluding that drug evidence could not be fabricated because of the efficacy of the police drug repository system;

ii. finding a business relationship between Vongkosy and the appellant; and

iii. attributing a role to unknown persons to minimize the significance of Vongkosy’s absence from his parents’ residence when the appellant picked up the yellow bag.

[43] This ground of appeal fails for several reasons.

[44] We begin with two general principles that control our decision on this issue.

[45] First, the distinction between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish. On the other hand, speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn.

[46] Second, without more, judicial speculation, like misapprehension of the evidence, does not mandate appellate correction. The speculation, like a misapprehension, must relate to material parts of the evidence and the error must play an essential part in the reasoning process leading to a finding of guilt: see, for example, R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.

[47] The trial judge did not engage in speculation about the inability of the police to fabricate evidence about drug seizures because of the efficacy of the drug repository system. The defence position – that the drugs supposedly seized from the appellant’s car had been diverted there from an earlier seizure by the police – was rejected by the trial judge on the basis that there was absolutely no evidence to support it.

[48] Even if a defence claim is rejected on the basis of speculation, this cannot be equated with a positive finding of an essential element of the Crown’s case made on the same basis. Here, the evidence about the drug lab and earlier seizure of 52 kilograms of methamphetamine was not part of the case for the Crown. This evidence was adduced by defence counsel in support of an argument that police planted seven kilograms from an earlier seizure in the appellant’s vehicle. The case for the Crown had nothing to do with the earlier seizure. Any speculation did not relate to material parts of the evidence and did not play an essential part in the trial judge’s reasoning process.

[49] Finally, as we have already said, the trial judge was not required to make a finding that Vongkosy and the appellant were involved in a joint methamphetamine trafficking enterprise in order to find the appellant guilty of the drug offence with which he was charged. The trial judge made no such finding of fact. What the trial judge did, and what he was entitled to do, was to consider the appellant’s claim of a purely social relationship with Vongkosy, a fellow traveller in the drug trafficking business, as one of many implausibilities that caused him (the trial judge) to reject the appellant’s evidence.

The Sentence Appeal

[50] The appellant also seeks leave to appeal sentence. He says that the net sentence of eight and one-half years’ imprisonment on the count of possession of methamphetamine for the purposes of trafficking is flawed due to an error in principle. That error, according to the appellant, arises out of the trial judge’s misuse of evidence of the appellant’s prior trafficking activities in another drug – cocaine – acknowledged by him in his trial testimony. That evidence, which had nothing to do with the single act with which the appellant was charged, overwhelmed the sentencing analysis and served as an aggravating factor on sentence. The prior conduct had no place in determining the degree of the appellant’s culpability for the single event of which he was convicted.

[51] We disagree with two features of the appellant’s submission. The first is the claim that the appellant’s admitted prior trafficking in cocaine at kilogram levels was irrelevant to a determination of a fit sentence for the drug offence of which he was convicted. The second is the submission that the trial judge considered evidence of the admitted prior trafficking to enhance the appellant’s moral blameworthiness for the offence of which he was convicted and an aggravating factor on sentence.

[52] We do not agree that the appellant’s admitted previous kilogram-level trafficking in cocaine was irrelevant in determining a fit sentence for the drug offence of which he was convicted. This evidence was relevant to show the appellant’s background and character, as well as his realistic prospects for rehabilitation. The appellant was a drug trafficker. He had been a drug trafficker for years. His motive was financial gain. He is not an addict. These were factors the trial judge could consider when weighing the sentencing objectives of deterrence, denunciation, and any realistic prospect of rehabilitation.

[53] In his reasons for sentence, the trial judge made it clear that he was sentencing the appellant for the conduct of which he had been convicted – possession of seven kilograms of methamphetamine for the purpose of trafficking. The reasons for sentence, read as a whole, do not reveal any departure from this announced intention.

[54] The appellant gave evidence of his cocaine trafficking history in considerable detail when he testified on his own behalf at trial. He sought to use it in an exculpatory way: he trafficked exclusively in cocaine and thus was not a person who would be in possession of methamphetamine, much less seven kilograms of methamphetamine, for the purpose of trafficking. It ill lies in his mouth now to deny the relevance of the evidence he himself adduced to his character for the purpose of sentencing.

[55] We are not persuaded that the sentence imposed falls outside the range of sentences appropriate in a case such as this. Seven kilograms. A very dangerous drug. Packaged for delivery. For financial gain. No more need be said.

[56] There is one minor adjustment that we would make to the sentence imposed by the trial judge. It does not appear to us that the trial judge gave any credit for a period of 43 days the appellant spent in custody in June and July 2008, before he was released on bail. This period precedes the enactment of s. 719(3.1) by the Truth in Sentencing Act, S.C. 2009, c. 29, s. 3, although the sentence was imposed after that Act came into effect. In our view, the appellant’s sentence should be reduced by 65 days to give effect to this oversight on the part of the trial judge.

Conclusion

[57] The appeal from conviction is dismissed. Leave to appeal sentence is granted, the appeal allowed, and the sentence of eight years, six months on the conviction of possession of methamphetamine for the purpose of trafficking is reduced by 65 days.

Released: “DD” (July 19, 2016)

“Doherty J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”