Court of Appeal for Ontario

Date: 2019-04-26

Docket: C62833

Judges: Rouleau, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Tuan Duc Pham Appellant

Counsel

For the Appellant: Mindy Caterina

For the Respondent: Aaron Shachter and Jeremy Streeter

Heard

March 18, 2019

Appeal

On appeal from the conviction entered by Justice Graeme Mew of the Superior Court of Justice on September 7, 2016, with reasons reported at 2016 ONSC 5614.

Decision

Fairburn J.A.:

Overview

[1] A fire broke out in an industrial complex unit. While video cameras captured at least three people quickly leaving the unit shortly before fire trucks arrived, their identities could not be determined. The first responders found a bucket of chemicals on fire in a methamphetamine lab on the mezzanine level of the unit. The finished product found in the lab would have been worth approximately $52,200-$78,300 if sold at the gram level.

[2] The appellant was tried for producing methamphetamine and possessing it for the purpose of trafficking. The Crown's case was entirely circumstantial. It turned on two key pieces of evidence connecting the appellant to the scene, and on the inferences that could be drawn from that evidence.

[3] First, the appellant's fingerprint was found on a pop can seized from the seating area on the first floor of the unit. Second, a cell phone that the trial judge concluded belonged to the appellant was found on a desk located by the door of the methamphetamine lab on the mezzanine level. The cell phone's battery was at least two thirds charged at the time of seizure. The phone contained incriminating evidence, including evidence connecting it to methamphetamine production and the clandestine lab itself.

[4] The trial judge found the appellant guilty on both counts by taking into consideration the following facts: (a) the appellant's fingerprint on the pop can, which placed him in the unit at some point in time; (b) that it was "obvious" that something was being done with chemicals in the industrial unit; (c) the proximity of the appellant's phone to the drug production equipment; (d) the fact that the phone had been used around an hour before the fire broke out; (e) the items on the mezzanine level, including buckets of chemicals, flasks, compressed gas cylinders and finished methamphetamine; and (g) the contents of the phone, including (i) a photo of a hydrogen chloride cylinder, containing a chemical used in the production of methamphetamine, that the trial judge found matched a cylinder found in the lab, (ii) a note that read "Cga330 single stage ss regulator usd350", referring to a regulator used for controlling the flow of gas from cylinders, and (iii) photos depicting involvement "in the workings of a laboratory" and "other drug production equipment."

[5] The appellant alleges the trial judge made three broad errors by:

(a) improperly relying upon a charging document, bad character evidence, a recognizance of bail, and hearsay evidence to link the appellant to the phone;

(b) misapprehending the evidence; and

(c) arriving upon an unreasonable verdict on the possession for the purposes of trafficking count or, alternatively, providing insufficient reasons for convicting on that count.[1]

[6] For the reasons that follow, I would dismiss the appeal.

(a) The Alleged Errors in Linking the Appellant to the Phone

Overview

[7] There is no dispute that the phone found in the methamphetamine lab constituted a critical piece of evidence for the prosecution. It could only help the Crown's case, however, if it was the appellant's phone. The trial judge found that the "only reasonable conclusion" available based on the contents of the phone was that it was the appellant's phone.

[8] The appellant argues under the first broad ground of appeal that the trial judge committed errors in coming to that conclusion. I will first review the evidence the trial judge relied on to find as a fact that the phone belonged to the appellant and then explain why I do not agree that the alleged errors were committed.

Facts Linking the Appellant to the Phone

[9] A video was taken of the inside of the methamphetamine lab. It shows a rudimentary-looking lab, containing various items strewn around the mezzanine floor, including buckets of chemicals, pipes, vents, wiring, gas cylinders, rubber gloves, gas masks, and finished methamphetamine. It would have been obvious to anyone who had been on the mezzanine floor, including to the person who placed the phone on the desk, that they were in a chemical drug lab. As the trial judge concluded, "[a]ll that was going on [in the unit] was drug production."

[10] The phone's placement on the desk, close to a package of cigarettes, was consistent with the person or persons who were producing methamphetamine in the lab having put their personal items onto the desk while they worked. There were also rubber gloves on the desk and a gas mask in the desk drawer.

[11] Given that the phone had been used about an hour before the fire was reported, and still held at least two thirds of its battery charge, it was open to the trier of fact to infer that the phone had been placed on the desk close in time to the fire. The phone user's presence in the lab proximate to the chemical fire was compelling circumstantial evidence of production and possession. The contents of the phone added to that circumstantial picture. Most powerfully, the phone contained a picture of a hydrogen chloride cylinder found in the lab and a reference to a regulator needed for that type of cylinder.

[12] Accordingly, no one disputes that linking the appellant to the phone was essential to the prosecution's case.

[13] To establish the requisite link, the Crown relied upon a number of things found on the phone, including video clips appearing to feature the appellant and his children. The phone was also associated with an email address containing the appellant's name. The appellant does not object to the trial judge's use of that evidence to link him to the phone. Rather, he objects to the trial judge's reliance upon certified court documents as additional evidence linking him to the phone.

[14] The Crown filed two certified court documents at trial: (a) an Information from the Brockville court, charging "Duc Tuan Pham" with two unrelated drug offences; and (b) the appellant's recognizance of bail. The trial Crown argued that when the contents of those documents were compared with the contents of the phone, it provided further proof that the phone belonged to the appellant.

[15] The Brockville Information charged a Duc Tuan Pham with unrelated criminal matters. The address of Duc Tuan Pham, contained on the face of the Information, matched the address of the phone's subscriber. In addition, diary entries on the phone corresponded to court dates noted on the Information. For instance, the Brockville Information showed that the matter was spoken to on June 7, 2013, which corresponded to a note in the phone's calendar that read "June 7. Broxkville ct." The Information also showed that on July 12, 2013, the matter was listed to be spoken to in Brockville. On the next court date, the matter was listed for a judicial pre-trial. This corresponded to a note on the phone that read "July 12 set date for pretrail [ sic ]".

[16] As for the certified recognizance of bail, it included a condition permitting the appellant to be outside of his residence for certain purposes when in the company of his children, whose names were listed on the face of the recognizance. Some of the children had uncommon first names. Those names corresponded with messages on the phone, including messages like: "Hi daddy! It's Machine! Just kidding! It's [name]!"; "Hi Daddy! [name] is being mean to me … [a]nd it is [name]." These are just examples of the messages on the phone. The phone's calendar also contained appointments for birthdays that were associated with the names on the recognizance.

[17] The trial judge relied upon the Brockville Information and recognizance, in addition to the appellant's family videos on the phone and the email address containing the appellant's name that was associated with the phone, to conclude that the phone located in the methamphetamine lab belonged to the appellant.

[18] The appellant advances four objections to the way in which the trial judge came to that conclusion. First, he argues that it was not open to the trial judge to rely upon the Brockville Information until he first found beyond a reasonable doubt that the Information related to the appellant. Second, he argues that the Brockville Information was presumptively inadmissible as bad character evidence, and that the Crown failed to properly seek its admission on a voir dire. Third, he argues that the trial judge erroneously relied upon the contents of both certified court documents for a hearsay purpose. Fourth, he argues that the principle against self-incrimination was offended by reliance on the certified recognizance of bail.

[19] I will now explain why I do not agree that these alleged errors were committed.

The Brockville Information and Standard of Proof

[20] The appellant argues that the Brockville Information could not be used to establish ownership of the phone until the Crown proved beyond a reasonable doubt that the appellant was the same person as the person reflected on the face of the Information. In advancing this argument, the appellant draws an analogy to a prosecution for failing to comply with an appearance notice. The appellant notes that this position is consistent with the position he took at trial, where defence counsel said that if the Crown was going to suggest that "Duc Tuan Pham" and the appellant were "one and the same", the Crown would have to "prove that." In this court, the appellant says that the applicable standard of proof was beyond a reasonable doubt and that the Crown failed to meet this burden. I disagree.

[21] The appellant was not being prosecuted for failing to appear. If he were, then the Crown would be required to prove the essential elements of that offence beyond a reasonable doubt, including that the accused is the same person as the person identified in the appearance notice: R. v. St. Pierre, 2016 ONCA 173, at para. 9. Here, the appellant was being prosecuted for drug offences. The Crown was required to prove the elements of those offences beyond a reasonable doubt, not to prove each individual relevant fact beyond a reasonable doubt.

[22] Triers of fact are not to examine facts piecemeal, applying a standard of proof to each one: R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.), at p. 701; R. v. Morin, [1988] 2 S.C.R. 345, at p. 359; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 23. Except in rare situations, like those in which the Crown's entire burden is carried by a single fact, it is an error to proceed in that fashion: R. v. White, [1998] 2 S.C.R. 72, at pp. 105-6. Pieces of evidence must not be considered in isolation, but cumulatively in an effort to decide whether, on the evidence as a whole, guilt is established beyond a reasonable doubt. It is the cumulative effect of that evidence that matters. As noted by Watt J.A. in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 82, each item of evidence must be considered relative to the other items of evidence and against the evidence as a whole.

[23] There is no dispute in this case that the certified Brockville Information was admissible pursuant to s. 23 of the Canada Evidence Act, R.S.C., 1985, c. C-5. The Information was relevant to whether the phone belonged to the appellant. While I accept the appellant's position that the Brockville Information would not have been useful in answering that question unless the Information related to the appellant, I do not accept that the trial judge was required to first satisfy himself beyond a reasonable doubt that the Brockville Information related to the appellant.

[24] The appellant points to R. v. Portillo (2003), 174 O.A.C 226 (C.A.), as the sole authority in support of his position that the Crown had to prove beyond a reasonable doubt that the Brockville Information related to him before it could be compared with the contents of the phone. Portillo does not support that position.

[25] Although Portillo stands for the proposition that in some circumstances, a factual inference needed to give evidence relevance will only be available where another factual inference is first made, there is no suggestion in Portillo that the first factual inference must be proved beyond a reasonable doubt: Portillo, at paras. 31-35. The trier of fact must simply consider the cumulative effect of all of the evidence to determine whether the first inference can be drawn.

[26] The circumstantial evidence in this case amply supported the finding that the Brockville Information related to the appellant. Although the Crown was using the Information to assist in establishing that the phone was the appellant's, the contents of the phone also assisted in showing that the Brockville Information related to the appellant. For instance, the phone that contained the notes corresponding to the Brockville Information also contained a video of the appellant and was connected to the email address with the name "tuanpham" in it.

[27] Moreover, the fact that the subscriber to the phone shared an exact address with the person on the Brockville Information who shared the appellant's name (albeit with the first two names in reverse order) was evidence that the phone was at least connected to the Brockville Information, and the Information to the phone. The phone's notes also corresponded to the dates on the Information, providing more evidence that the phone was connected to the Brockville Information and the Brockville Information to the phone, and both the Information and the phone to the appellant. There was ample evidence that the Brockville Information related to the appellant.

The Brockville Information as Bad Character Evidence

[28] Although it was not advanced in oral argument, the appellant maintained in his written submissions that the charging document constituted bad character evidence and was presumptively inadmissible. Although the unrelated charges constituted bad character evidence that undoubtedly would have been subjected to an admissibility voir dire had this been a jury trial, the Information contained clearly relevant and highly probative evidence.

[29] The lack of objection to the document's admission reflects a common sense acknowledgement that, in this judge-alone trial, the trier of fact was more than capable of avoiding any prohibited propensity reasoning. The reasons for judgment reflect that he was successful in that regard and no suggestion is made to the contrary. The evidence was not used for an improper purpose.

The Hearsay Slip

[30] I now turn to the appellant's point that the trial judge erred by relying upon both the Brockville Information and the recognizance for the truth of their contents, violating the hearsay rule.

[31] Although the documents were admissible under s. 23 of the Canada Evidence Act, that provision does not render the documents admissible for the truth of their contents: R. v. Caesar, 2016 ONCA 599, at para. 40. Although the record is somewhat muddy, it seems that Crown counsel did not intend to have the trial judge rely upon the documents for that purpose. As the trial Crown said in his closing submissions: "[t]hese documents are not being tendered for the truth of their contents." Despite that submission, the trial Crown slipped up in his closing submissions when he referred to the names of the appellant's children as if they were the actual names of those children. Of course, those names would only be known if the names on the face of the recognizance were considered for the truth of their contents.

[32] The appellant says that the trial judge used both the Information and the recognizance for a hearsay purpose. I do not agree that there was any significant use of the documents for such a purpose.

[33] First, the trial judge's comparison of the address on the Brockville Information with the phone subscriber's address did not offend the hearsay rule. The trial judge did not conclude that the appellant lived at that address because it said so on the Brockville Information. Rather, he relied upon the fact that the two addresses were the same. The information's evidentiary value came from its comparative value, and not from the truth of whether the appellant actually lived at the address.

[34] Second, the trial judge's conclusion that the court dates noted in the phone corresponded with the dates on the Brockville Information also did not engage the hearsay rule. The trial judge was not using the dates to find that the court appearances actually happened. Again, the value of the evidence lay in its comparative value and not in the truth of its contents.

[35] The trial judge made only one small hearsay-related slip in his reasons, when he concluded that the text messages on the phone referred to individuals with the "same first names as Mr. Pham's children." It appears that the trial judge took the children's names to actually be those included on the face of the recognizance in coming to this conclusion. The respondent fairly concedes that the trial judge's phrasing of the above finding reflects his use of the contents of the recognizance for a hearsay purpose.

[36] This was a harmless error: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 29-30; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. The appellant's children's names did not matter to the end result. What mattered was that the person using the phone was communicating with people of the same names as those listed as children on the recognizance of a person with the appellant's name.

[37] The fact that the evidence placing the phone in the appellant's possession was overwhelming adds to the harmless nature of the error. The video of the appellant and the email address alone were sufficient to give rise to an inference that this was the appellant's phone. The additional evidence only served to strengthen that already available inference.

Self-Incrimination

[38] The appellant says that the use of the recognizance also breached the principle against self-incrimination. The appellant's position on this point has evolved substantially over time.

[39] The appellant initially objected to the introduction of the recognizance at trial. Counsel said that she had never had a Crown attempt to use a bail document before to prove its case, and that it was "like conscripting an accused against himself by using its own process as a statement." Counsel agreed that the document be admitted so as not to delay matters, but suggested that she may argue admissibility the next day. The trial continued. The matter was only revisited during closing submissions, when counsel instead took the position that the self-incrimination concern went to "weight" and not admissibility.

[40] In written submissions on appeal, the appellant took the position that the use of the recognizance breached his s. 13 Charter right against self-incrimination. The appellant argued that admitting any "statement" made by an accused in a bail proceeding offends the principle against self-incrimination.

[41] During oral submissions on appeal, the appellant acknowledged that s. 13 cannot ground his claim since the Crown did not use his prior testimony: R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, at para. 75. Instead, during oral submissions, the appellant's position changed to one rooted in s. 7 of the Charter and the protection against self-incrimination. Both R. v. White, [1999] 2 S.C.R. 417, and R. v. Fitzpatrick, [1995] 4 S.C.R. 154, were mentioned in oral submissions. The appellant fairly acknowledged that this argument was not raised at trial or prior to oral submissions.

[42] The respondent argued that this court should not entertain the newly raised constitutional issue. I agree.

[43] Admissibility was conceded at trial. Accordingly, there is no record upon which this court can assess the issue; it should not be determined in the absence of such a record. Not only would this court lack the benefit of considered reasons by the trial judge, we are not even aware of the facts upon which the recognizance is based. We do not know whether the bail was contested or on consent. It would be inappropriate to consider the issue now.

[44] Moreover, this legal issue only touches upon the information gleaned from the recognizance. In light of all of the evidence informing the trial judge's conclusion that it was the appellant's phone, the same finding would have been inevitable even removing the recognizance from evidence. The children's names were one small piece in the circumstantial picture pointing toward the appellant as the owner of the phone.

(b) The Alleged Misapprehension of Evidence

[45] The appellant next argues that the trial judge misapprehended evidence relating to pictures saved on the phone.

[46] As previously described, the trial judge concluded that one of the pictures in the phone was of the exact hydrogen chloride cylinder found in the methamphetamine lab. The appellant does not object to that finding.

[47] The trial judge also found that there were "[o]ther photographs on the phone [that] show involvement in the workings of a laboratory." Later in his reasons, the trial judge described those photos as depicting "other drug production equipment." The appellant says that this finding constitutes a misapprehension of evidence.

[48] The appellant contends that there was no basis to conclude that those photographs, depicting wiring, valves and ducting, were of drug production equipment. There was no viva voce evidence to this effect and no expert evidence was led on this point. In the absence of any evidence interpreting the photographs, the appellant says that it is simply not possible to say that they depicted drug production equipment.

[49] Although the respondent acknowledges that there was no evidence elicited about the content of those photos and exactly what they depicted, he argues that the photos must be considered in context, including against the video of the drug lab. Among other things, that video depicts the methamphetamine lab as containing wiring, valves and ducting and the trial judge's comments must be seen in that context.

[50] The trial judge watched the video in court and had it available to him as an exhibit. It was an addendum to the parties' Agreed Statement of Facts. Although no one testified about whether the pictures actually showed "drug production equipment", the trial judge knew from the video that vents and wiring and valves were used in a methamphetamine lab. While those items may also have other more benign uses, they can be used in methamphetamine labs. Although, standing on its own, the suggestion that the photos were of "other drug production equipment" was an overstatement, I take the trial judge's comment to mean that the photos were of items that could be used in the production of methamphetamine, which corresponds with the activity taking place in the lab where the fire broke out. Accordingly, I see no misapprehension of the evidence or inappropriate speculation.

(c) The Alleged Unreasonable Verdict and Insufficient Reasons Respecting the Possession for the Purpose Count

[51] Finally, the appellant argues that the conviction on the possession for the purpose of trafficking count was unreasonable. If not, he argues that the trial judge's reasons are insufficient to permit appellate review. I disagree.

[52] A verdict is unreasonable only where a properly instructed jury, acting judicially could not have come to the verdict: R. v. Mendez, 2018 ONCA 354, at para. 20. That is not this case.

[53] Once the trial judge concluded that the appellant was guilty of producing methamphetamine, a verdict that the appellant does not challenge as unreasonable, the trial judge moved on to consider the possession for the purpose of trafficking count. The parties agreed that whoever possessed the methamphetamine in its final form would have done so for purposes of trafficking. Therefore, by the time that the appellant was found guilty of production, the real issue for determination on the possession for the purpose of trafficking count was whether the appellant had sufficient control over the finished substance.

[54] After reviewing all of the evidence, and making specific factual findings, the trial judge concluded as follows:

No reasonable inference of an innocent purpose for Mr. Pham's presence on the premises can be drawn from these primary facts. All that was going on there was drug production.

The only rational inference that can be drawn from the primary facts is that Mr. Pham was involved in producing methamphetamine on the premises. He was there at or very shortly before the fire which resulted from the production of methamphetamine. His phone contained information firmly linking him to methamphetamine production.

It follows that he had a measure of control over the methamphetamine found at the unit and, consequently possession of it.

[55] The appellant argues that there was insufficient evidence of "control" to support the conviction on the trafficking count, as the role that the appellant played in drug production was unknown. I disagree.

[56] In the circumstances of this case, involving a small methamphetamine lab that contained the finished product in an amount that the parties agreed could only be possessed for purposes of trafficking, control by the appellant was an available common sense inference. After finding that the appellant was involved in actually "producing" the methamphetamine, that he was present in the lab at the time that the fire broke out or shortly before, and that the fire resulted from the production of the drug, it was open to the trial judge to conclude that the appellant had some measure of control over the finished product. As he said, that control "follow[ed]" from the facts he found.

[57] Accordingly, the verdict on the possession for the purpose of trafficking count was not unreasonable. Moreover, read as a whole, the trial judge's reasons explain what was decided and why: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 17-18. His path to conviction was clearly discernable and he was not required to go further.

Conclusion

[58] I would dismiss the appeal.

Released: April 26, 2019

"Fairburn J.A."

"I agree. Paul Rouleau J.A."

"I agree. B.W. Miller J.A."

Footnote

[1] The appellant abandoned the argument he advanced in his written materials based upon R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.