COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ortega, 2022 ONCA 826
DATE: 20221129
DOCKET: C69737

Lauwers, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King

Appellant

and

Nicholas Ortega

Respondent

Marie Comiskey and Concetta Zary, for the appellant
Michael A. Johnston, for the respondent

Heard: November 22, 2022

On appeal from the acquittal entered on July 15, 2021 by Justice Robert F. Goldstein of the Superior Court of Justice.

REASONS FOR DECISION

[1] The Crown appeals directed verdicts of acquittal of Nicholas Ortega on drug and gun-related possession and conspiracy charges. The relevant contraband was located in a small storage locker owned by alleged co-conspirator Vincent Huang, a location that was clearly being used as a stash house, and in sophisticated hidden compartments in Mr. Huang’s Hyundai Sonata.

[2] Over two days, Mr. Ortega traveled with Mr. Huang on three occasions to the self-storage facility where the small storage locker, set up like an office containing both drugs and firearms in closed drawers or containers, was located. On at least one of those occasions, Mr. Ortega drove Mr. Huang to the self-storage facility, driving a motor vehicle belonging to Mr. Huang’s father. Mr. Ortega entered the small storage locker on at least two of those occasions, once for several minutes. There was no direct evidence that the drawers or containers were opened in Mr. Ortega’s presence or that any of the contraband was in plain view, or that it was exhibited to him, or that he exercised control over the contraband.

[3] Three days later, Mr. Ortega had sole control over Mr. Huang’s Sonata for almost 21 hours while more than $70,000 in cocaine and fentanyl, and a handgun, were in the hidden compartments. While he had control of the Sonata, Mr. Ortega engaged in activity consistent with drug trafficking, including driving to a mall parking lot and leaving the Sonata for a one-minute meeting with another person in a Lexus SUV, with the latter leaving the mall parking lot immediately after that meeting.

[4] In the face of this evidence, the trial judge directed the verdicts of acquittal.

[5] We allow the Crown’s appeal of that decision. It is unnecessary in doing so to address the Crown’s arguments that the trial judge erred by failing to consider an available inference arising from the value of the narcotics secreted in the Sonata, or that he committed an error of law in mistakenly finding that there was no evidence Mr. Ortega entered the storage locker. The standard of review on a directed verdict of acquittal is correctness: R. v. Barros, https://www.canlii.org/en/ca/scc/doc/2011/2011scc51/2011scc51.html, [2011] 3 S.C.R. 368 at para. https://www.canlii.org/en/ca/scc/doc/2011/2011scc51/2011scc51.html#par48; R. v. Charemski, https://www.canlii.org/en/ca/scc/doc/1998/1998canlii819/1998canlii819.html, [1998] 1 S.C.R. 679, at paras. https://www.canlii.org/en/ca/scc/doc/1998/1998canlii819/1998canlii819.html#par1. When the evidence is examined in its totality, assumed to be true, and subjected to the limited weighing provided for by law, there was admissible circumstantial evidence upon which a reasonable trier of fact, properly instructed, could return a verdict of guilty: R. v. Arcuri, https://www.canlii.org/en/ca/scc/doc/2001/2001scc54/2001scc54.html, [2001] 2 S.C.R. 828 at paras. https://www.canlii.org/en/ca/scc/doc/2001/2001scc54/2001scc54.html#par21.

[6] Specifically, there was evidence that Mr. Huang, who the trial judge correctly noted was shown to be a high-level drug dealer, conducted his business with a high degree of secrecy. Yet in a short period of time, he repeatedly travelled to the location of his secret stash house storage locker with Mr. Ortega and permitted Mr. Ortega inside. Given that this was not a storage locker where mundane items were being stored, but a work area that was clearly being used to conduct Mr. Huang’s trafficking business, this evidence supports an inference that Mr. Ortega’s actions were consistent with those of an associate of Mr. Huang’s in his drug business.

[7] Then Mr. Huang provided Mr. Ortega with exclusive control of his Sonata, without first removing the valuable narcotics from its hidden compartments. Mr. Ortega retained control of the vehicle containing narcotics for several hours before taking the motor vehicle to a mall where he engaged in a suspicious activity consistent with drug dealing. A reasonable trier of fact could infer not only that Mr. Ortega had control over the vehicle in which the narcotics were located, but that it is unlikely he would have been given effective control over such a large and valuable quantity of narcotics if he was not a trusted member of Mr. Huang’s drug conspiracy, an inference fortified by his conduct at the mall and by his repeated visits to the stash house location.

[8] To be clear, we make no comment on whether this circumstantial case would be apt to lead to conviction when the ultimate standard of proof is applied. However, the issue before the trial judge in the directed verdict motion was whether the evidence provided a prima facie case through reasonable inferences that a trier of fact could draw, thereby warranting the continuation of the trial. We are satisfied that it did and that the verdict of acquittal was therefore incorrect.

[9] The appeal is allowed, the acquittals are set aside, and a new trial is ordered on all charges.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”