Court File and Parties

Court File No.: Toronto Region

Date: 2016-07-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tin Tran

Before: Justice L. Feldman

Heard on: April 11, 2016

Reasons for Judgment released on: July 5, 2016

Counsel:

M. MacDonald, for the Crown

I. Grant, for the accused Tin Tran

FELDMAN J.:

Introduction

[1] Tin Tran entered a not guilty plea to a charge of Possession for the Purpose of Trafficking in illicit drugs. It is alleged that while conducting a Controlled Drugs and Substances Act (CDSA) search of an apartment in Toronto the police found the defendant sleeping in plain view of a large quantity of marihuana.

[2] Mr. Tran submits the Crown has not established that, assuming knowledge, he had control over the drugs, an essential element of possession. In addition, as part of a blended proceeding, he says the Information to Obtain (ITO) did not set out reasonable grounds to warrant a search of the defendant's residence, infringing his Charter s. 8 rights.

[3] Ms. Grant, for the accused, does not admit possession, but concedes that if possession is found, the quantity of marihuana is sufficient to prove possession for the purpose of trafficking.

[4] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[5] On May 28, 2014, at 6:12 a.m., police officers, in the takedown of a street gang, Asian Assassinz, the culmination of a major criminal guns and gangs investigation, 'Project Battery', conducted a CDSA search of apartment 205, 816 Lansdowne Ave in Toronto. At the time, Mr. Tran was sleeping on a couch in the living room.

[6] Det. Const. Robert Richardson, of the Niagara Regional Police, was one of the first of a tactical unit to enter the residence. In a search of the kitchen, he found a wallet that contained the defendant's health card, as well as an expired YMCA membership card in someone else's name. On a counter near the stove, he seized a dime bag of cocaine, a Digiweijh scale, a stash can and a Ziploc dime bag with skull markings. In a drawer, the officer saw a package of dime bags with skulls. There was a shopping bag on the stove in which the officer found a freezer bag containing marihuana. Finally, in an upper cabinet, he discovered two more baggies with marihuana, in addition to what he referred to as a stash can that is used to conceal contraband.

[7] In a search of the living room, P.C. Ryan James, of the Hamilton Police Service, seized an I-Phone from a table in addition to 3 small baggies. As well, he found marihuana in a glass jar, two bags of marihuana in a shopping bag on the floor and a third bag of marihuana in a Rexall shopping bag.

[8] Det. Const. Dani Amerlinck, with the OPP, Organized Crime Enforcement Bureau, seized $1180.00 from the bedroom. She found a phone belonging to one Billy Tu.

[9] It is admitted that the total quantity of marihuana seized was 1114.2 gms.

[10] P.C. Asad Whidie, of the RCMP, part of the surveillance team, made certain prior observations of Mr. Tran. On April 7, the officer saw him at Wenmar Automotive, later driving a grey Mazda. After that, he observed him getting off the elevator at 816 Lansdowne Ave and entering apt. 205 with a key. On May 20, he noted the Mazda at 816 Lansdowne Ave, saw the accused get out of it and then drive away in a blue Infiniti, followed by an unknown Asian male he had previously seen at 1600 Keele St.

Was Mr. Tran in Possession of the Marihuana?

[11] Ms. Grant, for the accused, concedes knowledge in the circumstances but submits there is a reasonable doubt Mr. Tran exercised any control over the contraband. She says there is no evidence the defendant was a regular occupant of the apartment and that he should rather be viewed as a visitor, given the absence of documents linking him to that address where he was found sleeping on a couch rather than in bed. She admits his use of a key on April 7 is problematic.

[12] Mr. MacDonald, for the prosecution, submits there is strong circumstantial evidence of the element of control.

[13] Absent exclusion of the evidence as a result of a Charter violation, I am satisfied to the requisite standard that the Crown has proven the essential elements of possession. On May 28, Mr. Tran was asleep in the apartment in the early morning hours. His wallet with an OHIP card in his name was found in the kitchen where marihuana was in plain view, as was $1180 cash in the bedroom. Additional marihuana and drug paraphernalia were located in the apartment.

[14] Circumstantial evidence links the defendant to this address on previous occasions. Of significance, he entered the apartment on April 7 with a key. On May 20, he was seen outside the building. A car he had been driving was parked there.

[15] On May 28, he was the sole occupant sleeping in plain view of a large quantity of marihuana spread throughout the apartment. It can be inferred he used a key to get in. It is speculative, without more, to suggest in all the circumstances that he was a mere found-in. His access and earlier linkage indicate more than indifferent or 'passively acquiescent' use of the residence and its contents: see R. v. Piaskoski (1979), 52 C.C.C (2d) 316 (Ont. C.A.).

[16] On all the evidence, in my view, the only reasonable inference to be drawn is that on this date the defendant exercised a measure of control over the drugs in a manner contemplated by Ritchie J. in R. v. Terrence, [1983] 1 S.C.R. 357. I am satisfied beyond a reasonable doubt that Mr. Tran was in possession of the marihuana.

The Charter Application

[17] It is Mr. Tran's onus to establish a Charter breach. The applicant concedes that while other targets were involved in drug trafficking and unlawful possession of firearms, he says there were no reasonable grounds contained in the ITO that he participated, even as a party, in criminal activity. He says the warrant is deficient in imputing guilt by loose association with others committing criminal offences. He submits that the granting of a search warrant on this insufficient basis seriously infringes his s. 8 rights and on this evidence highlights the danger of police overreaching.

[18] Mr. MacDonald submits that the evidence in the ITO as a whole supports the reasonable belief that the Applicant was assisting a network of drug traffickers and that relevant evidence with respect to the commission of criminal offences would be found in his apartment.

[19] It is necessary to view the evidence in the context of the larger 'Project Battery' investigation. As well, I am mindful that I need not choose from among competing inferences but rather must weigh even difficult inferences, arising from the evidence that are reasonable and logical: R. v. Katwaru, [2001] O.J. No. 209 (Ont. C.A.) at para. 39.

[20] The focus of the ITO is on three principals of Asian Assassinz, including Adnan Chami, Michael Quon and Peter T.D. Nguyen. Mr. Tran has in the past been arrested with members of this gang, including Mr. Nguyen, leading to criminal convictions. There is evidence permitting the inference he is connected to these associated drug traffickers. Ms. Grant, for the applicant, submits it is speculative to view these connections as other than social.

[21] Ms. Grant concedes that the information in the ITO supports the inference that Chami, Quon and Nguyen were involved in drug and weapons trafficking. That information indicates that Nguyen resided in rental accommodation at 1600 Keele St., apt. 1124, in Toronto, from which it could be inferred he participated in drug trafficking during the period March-May 2014. Tran visited that apartment on a couple of occasions during this time frame. He had been a driver or passenger in Nguyen's car leased in the name of a third party.

[22] On March 17, Tran, Nguyen and Quan left 1600 Keele St. and drove off, later returning together. Mr. Quon was seen to visit the apartment on a number of occasions. On April 29, Nguyen and Quan were observed in circumstances likely involving drug trafficking. There are additional investigative facts permitting the inference that on May 6, Quan was again trafficking in drugs.

[23] On May 16, the authorities executed a general search warrant on apt. 1124. There, police found four firearms, ammunition, a substantial amount of various drugs, a debt list and significant cash. This was a stash house. Because the investigation was ongoing, the search was set up to mirror a break-in. Of note, the next day, Quon arranged through a rental agent for Nguyen to move to an apartment in 816 Lansdowne Ave, leased in the name of a third party.

[24] On May 20, police observed Mr. Tran to be involved in activity that while ambiguous was consistent with drug trafficking.

[25] Both Mr. Tran and Chami lived at 816 Lansdowne Ave, the former in apt. 205, occupied previously by Quan, the latter in apt. 1307. Surveillance and text information permit the inference that Chami was involved in the production and trafficking of controlled substances. He was, as well, implicated in the fatal shooting of a rival gang member. He was criminally inclined.

[26] On April 7, Mr. Tran drove Chami to Wenmar Auto, a rental agency from which the latter leased cars in the name of a third party.

Was there a Proper Basis for Issuance of the Search Warrant?

[27] Code s. 487(1) provides for issuance of a search warrant upon the justice being satisfied there are reasonable grounds to believe that things will be found at a specified place that "will afford evidence with respect to the commission of an offence" by the applicant or others.

[28] The standard for that belief is one of "reasonable or credibly-based probability": R. v. Sanchez, [1994] O.J. No. 2260 (Ont. G.D.), at para. 29. The Supreme Court explains that this requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: R. v. Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39, at para. 114.

[29] In this regard, a peace officer must establish that, objectively, reasonable grounds in fact exist. In more concrete terms, would a reasonable person, standing in the shoes of the officer have believed the facts probably existed as asserted and have drawn the inferences submitted by the affiant: Sanchez, at para. 30.

[30] In the weighing of investigative facts in an ITO, a trial judge, as a matter of law, must appreciate the significance of police experience and training when evaluating the probative value of evidence and pay some deference to the ability of a trained police officer to draw inferences and make deductions which may well elude an untrained person: see R. v. Mackenzie, 2013 SCC 50, at para 60, per Moldaver J; and R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.), referred to by Hill J. in Sanchez, at para 20.

The Drawing of Inferences

[31] In the drawing of inferences I am aware of the difficulty of locating "the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence": see Watt's Manual of Criminal Evidence (Toronto: Carswell, 2006), at p. 95.

[32] Doherty J.A. describes the process involved in drawing inferences from accepted facts in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209: "These inferences must…be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation".

[33] In addition, as noted earlier, I am mindful of Justice Moldaver's admonition in Katwaru with regard to drawing difficult inferences as I review spare investigative facts linking the applicant to the criminal activities of his friends.

Conclusion

[34] In this process, I view the evidence in the ITO as a whole and in its investigative context. I take into account the applicant's association with active gang members, the proximity of his residence in an apartment formerly rented by one of the principals, his criminal antecedents that are linked to Nguyen, his probable involvement in a more recent incident of drug trafficking, his presence in Nguyen's drug stash, his driving or being a passenger of more than one of the drug traffickers in vehicles rented in order to conceal the leaseholder's name, a tactic of street gangs to distance themselves from police scrutiny.

[35] In the drawing of inferences, I am assisted in assessing the evidence by the fact that the affiant, Det. Const. Ryan Smith is an experienced drug investigator: see R. v. Wu, [2015] O.J. No. 5106 (Ont. C.A.), paras. 53-55.

[36] In reviewing the affidavit, I am directed to consider its contents as a whole in a common sense manner and then determine whether the ITO provided "sufficient credible and reliable evidence to permit the justice of the peace to find reasonable and probable grounds to believe" the applicant assisted other targets of the investigation in their criminal endeavours and that it was reasonably likely evidence of these or other offences would be found in his residence: R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at para. 62. In essence, could the issuing justice reasonably have granted the search warrant: R. v. Garofoli, [1990] S.C.J. No. 115, at para. 56.

[37] The applicant was a peripheral player in the investigation of the gang-related activities of those with whom he was associated in the ITO. He had a long friendship with Nguyen with whom he was involved in the past in criminal activity. He visited Nguyen's apartment at least twice during the relevant time frame. It can be inferred he knew it was a drug stash. It can also be inferred he more recently participated in an incident of drug trafficking. On occasion he drove one of the principals of this drug trafficking investigation to a car dealer from whom that person rented vehicles. He took over an apartment from one of the principals and lived in close proximity to them all.

[38] In my view, on this evidence, it is open to be reasonably inferred that the applicant provided support or assistance to a number of drug traffickers with whom he was associated in their criminal endeavours and that it is reasonably likely relevant evidence of a criminal offence would be found in a search of his residence.

[39] I am satisfied that there was an evidentiary basis upon which the authorizing justice could reasonably have granted the search warrant: Garofoli, at para. 56.

Exclusion of the Evidence

[40] In the event I am wrong in finding sufficiency in the investigative facts to support issuance of a search warrant, I would view in that event the belief of the affiant that evidence of a criminal offence would be found to be just short of reasonable belief by an officer acting in good faith.

[41] This would in my view diminish the seriousness of a breach under the first inquiry in a Grant analysis [R. v. Grant, 2009 SCC 32] and favour inclusion of the evidence. The Crown concedes the privacy interest here considered in the second inquiry is high and favours exclusion. On the third line of inquiry the contraband is reliable physical evidence and essential to a trial on the merits.

[42] A balancing of these factors favours inclusion and would not by admission of the evidence bring the administration of justice into disrepute.

[43] The drugs will be admitted into evidence. In the result, the accused will be found guilty of possession for the purpose of trafficking.

Released: July 5, 2016

Signed: "Justice L. Feldman"