ONTARIO COURT OF JUSTICE
CITATION: R. v. Chen, 2019 ONCJ 103
DATE: February 1, 2019
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
QU CHEN
Before Justice R. Maxwell
Heard on July 19, August 9, September 5, December 3 and 6, 2018
Reasons for Judgment released on February 1, 2019
B. Gluckman and J. Streeter ................................................................... counsel for the Crown
K. Schofield ................................................................................................. counsel for Qu Chen
MAXWELL J.:
- Overview
[1] Qu Chen is charged with possession of MDA and methamphetamine for the purpose of trafficking, unlawful production of MDA, and unlawful production of methamphetamine for the purpose of trafficking, contrary to sections 5(2), 7(1) and 7.1(1) of the Controlled Drugs and Substances Act.
[2] On June 23, 2016, police executed search warrants at two addresses believed to be residences of Mr. Chen: 20 Kindy Street in Markham and 75 Nuffield Street in Brampton. Police also executed search warrants on two vehicles, a Porsche registered to Mr. Chen and seen at 75 Nuffield Street, and a Nissan which Mr. Chen was seen driving into the garage of 20 Kindy Street.
[3] Inside the basement of the residence located at 20 Kindy Street, police found a methamphetamine laboratory which contained a pill press, 23 kilograms of finished methamphetamine (some mixed with MDA) and a further three kilograms of MDA.
[4] Mr. Chen was arrested the same day. He was found in possession of keys to 20 Kindy Street and the Nissan vehicle. In the Nissan, police located a garage door opener for 20 Kindy Street as well as documents addressed to Mr. Chen at 20 Kindy Street.
[5] Mr. Chen elected to have a trial before me. Prior to the commencement of the trial, he applied to have the evidence that was seized excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms on the basis that the police lacked reasonable grounds to believe that evidence of an offence would be found at either address and/or in either vehicle at the time the warrant was obtained, violating his rights under s. 8 of the Charter[^1].
[6] On September 18, 2018, I dismissed the application with reasons to follow. The trial in the matter commenced on December 3, 2018 and completed on December 6, 2018. These are my reasons for judgment, both on the Charter application and the merits of the case.
I. The Charter Application
A. Background
[7] In 2016, Toronto Police Services began a large-scale investigation into a number of individuals suspected to be involved in the importation and distribution of controlled substances, including but not limited to cocaine, marijuana and ketamine. The project was called Project Beyond. Mr. Chen was not an original target of the investigation, nor was he a person of interest or even known to the investigative team at the beginning of the investigation.
[8] In April 2016, police obtained a Part VI authorization to intercept private communications of some of the individuals who had been identified and suspected to be involved in the drug distribution network.
[9] One suspect, Mr. Yang Shi, was identified through the investigation as someone to be heavily involved in the importation, exportation and distribution of a variety of controlled substances. Mr. Shi’s phone was intercepted, allowing police to identify others involved in the drug distribution network. Mr. Chen was one of the people identified through the investigation.
[10] On June 23, 2016, Constable William Chase of the Toronto Police Service Drug Squad, swore an affidavit in support of an omnibus application for search warrants for various addresses associated to various individuals identified through the investigation (the “June 23rd ITO”). Among the requests, he sought a warrant to search the “dwelling-house” of Qu Chen, which was particularized as “75 Nuffield Street, Brampton and any associated outbuildings”. The June 23rd ITO also sought a warrant to search the “dwelling-house” of Qu Chen which was particularized as “20 Kindy Street, Markham and any associated outbuildings”.
[11] In a second omnibus application sworn on June 22, 2016, Constable Chase sought warrants to search the Porsche and the Nissan, among a number of other requests for authorizations to search other locations associated to other individuals (the “June 22nd ITO”).
[12] Only a few paragraphs of the June 22nd ITO and the June 23rd ITO relate to Mr. Chen, the two addresses and the two vehicles. Constable Chase relied on intercepted communications and surveillance in support of his belief that there were reasonable grounds to believe that evidence of drug trafficking would be found at 20 Kindy Street, 75 Nuffield Street, and inside the two vehicles. Of note, while there was information from confidential informants which formed part of the grounds in relation to other individuals, the confidential informant information did not form part of the grounds relied on by Constable Chase in relation to Mr. Chen.
B. Evidence on the Charter Application
1. The Information to Obtain
[13] The June 23rd ITO contained an Appendix A listing items to be searched for at 75 Nuffield Street and a separate Appendix A setting out items to be searched for at 20 Kindy Street. They are identical in content and set out the items to be seized as: (1) controlled substances and cutting agents; (2) items related to the distribution of controlled substances; (3) telecommunication and electronic storage devices and data contained within; (4) identification and documents showing ownership; (5) proceeds of crime.
[14] Appendix B set out the offences for which Mr. Chen was under investigation as: unlawful possession of a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, and possession of proceeds of crime, contrary to s. 354(1) of the Criminal Code.
[15] Appendix C of the June 23rd ITO set out Constable Chase’s grounds to believe evidence of the offences would be found at both residences. At paragraphs 26 to 34, Constable Chase set out the intercepted communications between Mr. Chen and Mr. Shi, as well as Mr. Chen and others, concerning a conspiracy to traffick a controlled substance in New York:
On May 23, 2016, police intercepted communications between Mr. Shi and a male named “Teddy”, operating the phone number (647) 713 5272. The two had a conversation in a foreign language. Translated, Mr. Shi asked “Teddy” if “the stuff you have been working is still there”. “Teddy” replied that he/she was in New York right now.
On May 30, 2016, Mr. Shi again contacted “Teddy” at the same phone number. Mr. Shi asked “Teddy” if he got his “New York” message and asked “Teddy” for the address so he (Shi) could send keys to him. Mr. Shi told “Teddy” to do it quick because they didn’t want to keep it there long. Mr. Shi asked Teddy if he had a friend in New York who can pick up money. The sum that was discussed was 10,000 to 12,000 max 15,000US cash. “Teddy” said he would find someone trustworthy.
On May 31, 2016, Mr. Shi contacted “Teddy” at the same phone number. Mr. Shi told “Teddy” to send the keys over and he will give him another address of where the stuff is. Mr. Shi advised that there are a total of 19,000 pieces. Mr. Shi said to sell it for $2 a piece.
On June 7, 2016, Mr. Shi sent a text message to phone number to “Teddy” at phone number (647) 718 4160. The text message detailed the location and access code to a storage locker in New York.
On June 8, 2016, the DEA in New York searched the storage locker identified in the text messages and located a large quantity of methamphetamine and fentanyl pills.
On June 10, 2016, Mr. Shi contacted “Teddy” at (647) 718 4160. They discussed the storage locker. “Teddy” advised that the person went to the locker and there was nothing there, and that he had this person double check the locker. Mr. Shi spoke to “Teddy” later that day and advised that maybe a partner took it. “Teddy” expressed concern that it was the police.
On June 22, 2016, “Teddy’s” phone was intercepted speaking with an operator from the Office of Boating and Safety. In the course of the conversation, “Teddy” provided his name as Qu Chen with a phone number of (647) 718 4160. He provided his address to the operator as 75 Nuffield Street. Police learned from a search conducted through the Ministry of Transportation that Qu Chen’s driver’s licence was registered to 75 Nuffield Street in Brampton and a registered vehicle, a 2016 Porsche with licence plate BZLN555, was also registered to the address of 75 Nuffield Street.
Mr. Chen was intercepted on another occasion providing 20 Kindy Street as his address.
Prior to the execution of the search warrants, on or about June 17, 2016, police observed Mr. Chen driving a Nissan with licence plate BXEA438, a rental vehicle, into the garage of 20 Kindy Street.
[16] At paragraphs 45 to 48 of the June 23rd ITO, Constable Chase set out details of further intercepted communications between Mr. Chen and an unknown female and an unknown male:
On or about June 16, 2016, “Teddy” was intercepted, using phone (647) 718 4160, speaking to a woman. “Teddy” advised that the “grapes” she got last time “was not bad” and asked for some more “photos”. The female advised that they would have to place an order and tell her the quantity and that he would get “photos”.
Two days later, on June 18, 2016, “Teddy” spoke to an unknown female using the same mobile phone number. She advised “Teddy” that she had spoken with a Mr. Ma and that Mr. Ma could arrive in Chicago next Saturday, and further, that the total was $26,600.
Three days later, on June 21, 2016, “Teddy” spoke with an unknown male. “Teddy” advised the male that the “red wines” arrive on Sunday and that he will be busy all weekend and will ship it back. They discussed plans to “repackage 15,000 bottles into 100,000, to make a $450,000 profit”.
On June 21, 2016, “Teddy” spoke to an unknown male. “Teddy” was confirming things with the unknown male, who was identified as Ming. Ming confirmed that “it” would be on the 25th. Ming advised that he “is where it is and will confirm the stuff”.
[17] Constable Chase then provided his grounds to believe that Mr. Chen was conspiring with Mr. Shi and others to import controlled substances. At paragraph 48 of the June 23rd ITO, he stated:
[48] Based on the preceding paragraphs I believe that the intercepted conversations of Qu CHEN were in relation to the importation of a quantity of controlled substances. I base my belief on the coded language and prices listed throughout the conversation.
[18] At paragraphs 66 to 73 of the June 23rd ITO, he set out his grounds to believe that evidence would be found at the addresses of 75 Nuffield Street and 20 Kindy Street:
[66] Through the intercepted communications of Yang SHI, Qu CHEN has been identified as being an active participant in SHI’s drug distribution network. As previously mentioned several communications were intercepted between CHEN and SHI where they conspired to distribute and import controlled substances.
[67] During the investigation Qu CHEN was intercepted providing his address as 20 Kindy Street, Markham.
[68] On June 17th, 2016 surveillance officers observed Qu CHEN attend the address of 20 Kindy Street, while in operation of a Nissan bearing BXEA438 and drove his vehicle into the garage of the residence.
[69] MTO records indicate that Qu CHEN has a registered address at 75 Nuffield Street, Brampton and a registered vehicle, namely a 2016 Porsche bearing Ontario licence plate number BZLN555.
[70] On June 22nd, 2016 surveillance officers attended the address of 75 Nuffield Street, Brampton and found the above mention (sic) Porsche parked in the driveway.
[73] […] a) I have reviewed a MTO query in relation to the licence plate number BXEA438 and learned that it is attached to a grey 2015 Nissan with a registered owner of WTH Car Rental.
2. The Evidence of the Affiant, Constable William Chase
[19] Ms. Schofield, on behalf of Mr. Chen, sought leave to cross-examine the affiant on two discrete areas, the first of which was not contested and which I permitted. Ms. Schofield was permitted to cross-examine the affiant about the characterization of information in paragraph 34 of the June 23rd ITO which states:
[34] On June 22, 2016 the male known as “Teddy” was intercepted speaking with an operator from the Office of Boating Safety. I have reviewed this conversation and have learned the following:
a) The male known as “Teddy” was inquiring how to get a replacement boating licence. When he was asked to provide his name, he advised Qu Chen.
i) I have reviewed a MTO query in relation to Qu Chen born July 2nd, 1981 and learned that he does have a valid Ontario driver’s licence with a registered address of 75 Nuffield Street, Brampton.
ii) I have reviewed a CNI database query.
[20] Constable Chase accepted that, in his role as affiant, he monitored phone calls and text messages in the call room that had been set up to monitor intercepted communications. He testified that on June 22, 2016, he was told by another officer that “Teddy” had been intercepted at 9:57am providing his full name to the Office of Boating and Safety. He was further advised that, at 10:03am, Mr. Chen made another call to the Office of Boating and Safety in which he again identified himself by name and provided a telephone number.
[21] Constable Chase testified that he was aware, as of June 11, 2016, that the person named “Teddy” had been intercepted providing his address as 20 Kindy Street.[^2]
[22] He was shown the call summaries from June 22nd and accepted that there was another call on that date, at 2:04pm, in which Mr. Chen again identified himself to the Office of Boating and Safety by his full name, but this time, also provided his date of birth and an address of 75 Nuffield Street in Brampton.
[23] Constable Chase was cross-examined on why he did not include the fact that Mr. Chen provided his address as 75 Nuffield Street in Brampton during the call to the Office of Boating and Safety at 2:04pm in paragraph 34 of the June 23rd ITO. He testified that he did not believe he reviewed this call, nor was he advised of this information at the time of writing the affidavit. He agreed that it would have been preferable had the June 23rd ITO referenced the fact that Mr. Chen identified 75 Nuffield Street as his address on the phone call at 2:04pm.
3. Evidence of Qu Chen
[24] Mr. Chen gave evidence on the voir dire. He testified that from March or April 2016, up to and including June 23, 2016, he lived at 20 Kindy Street. He testified that 75 Nuffield Street is a friend’s address which he used as his mailing address. He started using 75 Nuffield Street as his mailing address when he moved back to China in 2012. He returned to Canada in September 2015 and lived with a friend at 42 Hauser Street, until he moved into 20 Kindy Street in March or April of 2016. Although he lived at 20 Kindy Street and received some utility bills at this address, he continued to use 75 Nuffield Street as his mailing address. He never lived at 75 Nuffield Street, nor did he ever go to that address. He arranged for the owner of 75 Nuffield Street to meet him to deliver his mail.
C. Positions of the Parties
[25] All the evidence which Mr. Chen seeks to exclude came from 20 Kindy Street, the Nissan vehicle, and from his person incident to his arrest. Ms. Schofield argues however, that it is nevertheless relevant, on an analysis of the seriousness of the police conduct under s. 24(2) of the Charter, that two addresses, both equally consistent with being Mr. Chen’s home residence (from the affiant’s perspective), were searched.
[26] The Crown concedes that Mr. Chen has established, on a balance of probabilities, that 20 Kindy Street was his home at the time of the execution of the warrant. The Crown further concedes that the address of 75 Nuffield Street is a residential address and that a warrant was also executed there.
[27] Ms. Schofield argues that Constable Chase lacked grounds to believe that a search of the two addresses and/or the two vehicles would afford evidence of an offence at the time the search warrant was to be executed. She raises several arguments.
[28] First, points to the intercepted communications summarized at paras. 26 to 29 of the June 23rd ITO which concern the conspiracy to traffick a controlled substance located in New York. She argues there is no reasonable basis to believe that controlled substances, cutting agents, items related to the distribution of controlled substances and proceeds of crime, would be located at Mr. Chen’s home, given that the conspiracy concerned the trafficking of drugs located in the United States.
[29] With respect to the intercepted communications set out in paragraphs 45 to 48 of the June 23rd ITO, she argues that the conversations concerned events which were anticipated to take place post-search warrant execution. Given this fact, she argues there was no basis to believe that evidence of an offence would be located at either address at the time the search warrant was to be executed.
[30] Second, she argues that in order to establish grounds to believe that other items, such as cellular phones and other electronic communication devices, electronic storage devices, and/or documentation, would be present at a specified address, the affiant was required to identify which address was Mr. Chen’s home address. She argues that it is not enough for the affiant to include multiple possible addresses, on the basis that the evidence related to the offence such as cell phones or other telecommunication devices “must be somewhere”. The police could have investigated further (for example, by obtaining phone records) to determine which address was Mr. Chen’s actual home address. Moreover, there is no evidence of which phone(s) or electronic device(s) they were looking for, or what basis there was to believe Mr. Chen would still have those devices at the relevant time.
[31] She points to the Ontario Court of Appeal decision in R. v. Rocha, 2012 ONCA 707, at para. 26, in which the court agreed with the trial judge’s finding that an ITO which asserted grounds to search a home on the basis of a “mere conclusory statement that drugs were stored at the house” from a confidential informant did not provide a sufficient basis for granting a warrant to search the home. She also referred to R. v. Persaud, [2016] O.J. No. 6815, where Hill J. stated, at para. 144, citing the Ontario Court of Appeal in R. v. Campbell, that it is essential that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not mere suspicion”, and that something more than a “mere possibility” that relevant evidence of a crime will be found at a place is required to establish the requisite grounds to search.
[32] Mr. Gluckman for the Crown argues that the global grounds for the warrant must be considered when assessing the grounds to search Mr. Chen’s addresses and vehicles. The ITO established a reasonable basis to believe that Mr. Shi was involved heavily in the distribution of multiple controlled substances and that his business involved a network of individuals in different locations. The intercepted communications also established that Mr. Chen was conspiring with Mr. Shi and others to import and distribute controlled substances. Finally, the intercepted communications and surveillance established that Mr. Chen lived at, or utilized, two addresses and two vehicles. When viewed in totality, the ITO provided ample grounds for Constable Chase’s reasonable belief that evidence of drug trafficking would be found at the addresses and in the vehicles.
D. General Principles Governing Review of Search Warrants
[33] Section 487 (1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.
[34] A search warrant is presumed to be valid and the onus is on the applicant to show that there was not sufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at para. 30; R. v. Crevier, 2015 ONCA 619 (Ont. C.A.), at para. 45, aff’d 2016 SCC 32.
[35] The court reviewing a search warrant ITO does not stand in the place of the justice who issued the warrant, nor is it an opportunity for the reviewing court to substitute her view for the one of the issuing justice: R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 84-87. Rather, as Watt J.A. summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99, leave to appeal refused [2012] S.C.C.A. No. 111:
[…] the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.
[36] The standard of persuasion for the issuance of a warrant, reasonable and probable grounds, is a “credibly-based probability”. It requires more than an experienced-based hunch or “reasonable suspicion”: Sadikov, at para. 81. It does not however mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8 (S.C.C.), at paras. 127-128; R. v. Debot, [1989] 2 S.C.R. 11440 (S.C.C.), at p. 1166. The standard is that the affiant subjectively believes that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched.
E. Analysis
[37] Looking at the ITO as a whole, there was an abundance of evidence before the issuing justice that Mr. Shi was involved heavily in the distribution of multiple controlled substances and that his business involved a network of individuals in different locations. Two weeks before the application for the warrants, police intercepted calls between Mr. Shi and Mr. Chen detailing the location of a storage locker in New York and discussing arrangements for Mr. Chen (or a designate) to access the locker. The same day the communication was intercepted, police in New York searched the storage locker and found a large quantity of methamphetamine and fentanyl pills. Two days before the police applied for the warrant, Mr. Chen was again intercepted planning on repackaging 15,000 bottles into 100,000 to make a profit of $450,000.
[38] With this information, it would have been clear to the issuing justice that the police believed Mr. Chen to have been conspiring with Mr. Shi and others to import and distribute controlled substances.
[39] Against that backdrop, the question is, did the affiant set out a basis upon which the issuing justice could have concluded that he had reasonable grounds to believe that any of the items listed in Appendices A would be located at the addresses and inside the vehicles? In my view, there was a basis upon which the issuing justice could have concluded that the grounds set out established a “credibly-based” probability that evidence of Mr. Chen’s drug activities would be found inside the addresses and the vehicles, including “controlled substances and cutting agents”, “items related to the distribution of controlled substances”, “proceeds of crime”, and “telecommunication and electronic storage devices”.
[40] I will begin with the affiant’s belief that both 75 Nuffield Street and 20 Kindy Street would afford evidence on the basis that they were both Mr. Chen’s addresses. Viewed in totality, it is clear that the affiant considered both addresses to be locations that Mr. Chen used, as a residence or otherwise.
[41] The affiant presented all the information he had in his possession regarding Mr. Chen’s connection to both addresses. He indicated that Mr. Chen’s driver’s licence was registered to 75 Nuffield Street and that he had a Porsche vehicle registered to that address. He also stated that surveillance officers saw the Porsche parking in the driveway of 75 Nuffield Street the day before the search warrant was executed.
[42] There was an additional piece of information connecting Mr. Chen to 75 Nuffield which did not make its way into the June 23rd ITO, namely, that Mr. Chen had provided this as his address to the Office of Boating Safety on June 22, 2016. I accept Constable Chase’s evidence that he did not monitor this call or see the summary with this detail and therefore, did not know of this information to include it in the June 23rd ITO. In any event, I find that this piece of information would have only added to what was already a sufficient basis to establish a connection between Mr. Chen and the address of 75 Nuffield Street.
[43] Similarly, with respect to 20 Kindy Street, the June 23rd ITO set out the affiant’s information that Mr. Chen had been intercepted providing the address of 20 Kindy Street as his address. Further, he was observed at the address by surveillance officers on June 17, 2016 and was seen driving his Nissan into the garage of the home.
[44] I do not accept the argument that the affiant was required to identify which of the addresses he believed to be Mr. Chen’s home address in order to establish reasonable grounds to believe evidence of an offence (in particular, the electronic telecommunication devices) would be found. Ms. Schofield correctly points out, with reference to the Ontario Court of Appeal’s decision in Rocha and Justice Hill’s decision in Persaud, that there must be a basis, based on credible and reliable evidence, to believe that evidence of the offence will be located at a specific location. I also accept that, where the subject of a warrant application has simply been seen at one or more residential addresses, that this does not necessarily establish a sufficient connection between the person and the address such that there would be a reasonable basis to believe that items related to an offence will be found at those addresses.
[45] However, where there is evidence to support an inference that the subject of a warrant application uses more than one address as a dwelling, or residence, or simply maintains more than one address, and if there is a reasonable basis to believe that evidence of an offence will be kept within those places, then the police can obtain warrants for all addresses they reasonably believe will contain evidence of the offence(s). As the Supreme Court of Canada noted in Debot, the standard to be met is one of “reasonable probability” and if it is reasonably probable that evidence will be located at more than one address, then the requirement is satisfied.
[46] In his text Hutchison’s Search Warrant Manual 2015: A Guide to Legal and Practical Issues Associated with Judicial Pre-Authorization of Investigative Techniques, 2014 Thomson Reuters Canada Limited, Scott Hutchison noted the application of this standard to circumstances where there are multiple target addresses. He noted, at page 59:
The importance of the exact nature of this standard can be seen in the problem of simultaneous searches. There are circumstances where investigators have grounds to believe that an item they wish to seize may be in one of a number of different locations. For example, suppose an investigator has learned that the owner of a business keeps a secret set of records with the true affairs of the company in a notebook computer which he or she moves between two business locations and the home, but nowhere else. The investigator may wish (or more likely, need) to obtain three different search warrants to search simultaneously these three separate locations for the notebook. If the requirement of reasonable grounds means that the investigator had to be at least 51% satisfied that the notebook was at one of these locations as opposed to the others, the investigator would probably not be able to get even one warrant, let alone successive warrants, as there is simply no evidence suggesting that it is any more likely that the secret records are at one location over the other. However, as noted, the weight of the authorities to date states that reasonable and probable grounds does not require this type of certainty or probability.
[47] In my view, there were sufficient grounds for the affiant to believe, based on the information in his possession, that there would be electronic communication and storage devices, including but not limited to, the cell phones used by Mr. Chen on the intercepted communications and documentation and records related to Mr. Chen’s drug network and the schemes to import controlled substances with Mr. Shi and others. It is also reasonable to believe that Mr. Chen, involved in a drug trafficking network and having been recorded discussing prices and packaging of controlled substances, would have proceeds, packaging material, and controlled substances at his home or at an address he identified as his personal address.
[48] The circumstances of this case are akin to those which were under consideration by the Ontario Court of Appeal in R. v. Clairoux, 2018 ONCA 629. In Clairoux, the appellant was charged as a result of a large-scale investigation into drug trafficking, money laundering and intimidation. At trial, the search warrant for his home was held to have been validly issued. On appeal, the Ontario Court of Appeal rejected the argument that the ITO did not contain any information to suggest that drugs or other objects listed in the ITO could be found at the residence. The court stated, at paras. 9-10:
[…] [I]t would have been apparent to the issuing justice that the appellant’s involvement was as a co-conspirator in the scheme to traffic drugs. The evidence contained in the ITO included the fact that the appellant had received a large sum of money from the target of the investigation and attended the stash house. The wiretaps also provided evidence that the accused had arranged drug buys and was involved with payments and debts. […] It is to be recalled that an ITO must be read as a whole and words and phrases are not to be improperly parsed and read in isolation.
We also reject the appellant’s submission that the ITO did not contain any information to suggest that evidence of a conspiracy would be found in the appellant’s home. While there may have been insufficient grounds to believe that narcotics would be found, the ITO made it clear that the appellant was alleged to be part of a conspiracy to commit an indictable offence, namely, trafficking in controlled substances. His involvement was such that electronic messages, ledgers of drug debts or other evidence relevant to the existence of a criminal organization might be found.
See also R. v. Chin [2015] O.J. No. 3548, at paras. 32-35; R. v. Latchmana [2015] O.J. No. 4013, at paras. 21-23.
[49] The circumstances of this case are unlike those present in Rocha where the affiant relied on the uncorroborated assertion by a confidential source that drugs would be found at Rocha’s home. The grounds to search Mr. Chen’s addresses and vehicles were based on evidence from intercepted communications that Mr. Chen was part of a large-scale conspiracy to import or traffick controlled substances. There was evidence in the communications that Mr. Shi used many different people, in different locations, to import, export and distribute controlled substances. There was also evidence that Mr. Chen discussed picking up items, re-packaging items and selling items for profit in the intercepted communications. A reasonable inference can be drawn that he was discussing transporting, repackaging and selling controlled substances.
[50] When put in context, there was a “credibly-based probability” for the affiant to believe that evidence of controlled substances (including but not limited to cocaine), weighing instruments, packing materials, identification, currency, cell phones and other electronic communication and storage devices, and documents would be found at Mr. Chen’s addresses and within vehicles associated to him.
[51] My conclusion does not change because, as Ms. Schofield points out, the first of the series of intercepted text messages related to controlled substances located in New York. Nor does it change based on the fact that the second series of intercepted text messages concerned the trafficking of a controlled substance(s) which was to take place post-search warrant execution. Those facts, in my view, simply highlight the large-scale, trans-national, and ongoing nature of the plan to import and distribute controlled substances, of which Mr. Chen was a part.
[52] For these reasons, I find there was sufficient connection between the addresses of 20 Kindy Street as well as 75 Nuffield Street to support a reasonable basis to believe that evidence of Mr. Chen’s drug activities would be found at these residential addresses, as well as in the vehicles.
[53] The application is dismissed.
II. The Trial
A. The Undisputed Evidence
[54] The Crown’s case was presented by way of an agreed statement of facts and there is no dispute in the evidence with respect to the events leading up to the seizure of the methamphetamine and MDA, and Mr. Chen’s arrest.
[55] On June 23, 2016, officers were conducting surveillance in the area of 20 Kindy Street, Markham. Shortly after 9:20am, an officer observed a 2015 Nissan Versa, driven by Mr. Chen, reverse out of the garage of 20 Kindy Street and drive away. The vehicle was followed to APA Autoparts, where Mr. Chen parked and exited from the vehicle. Just after 10:00am, officers approached Mr. Chen and advised him he was under arrest for participation in a criminal organization.
[56] Mr. Chen was searched incident to his arrest. Officers located keys to both the Nissan and 20 Kindy Street on his person. Officers searched the Nissan and located a number of documents addressed to Qu Chen at 20 Kindy Street, including a Reliance bill dated June 8, 2016, a Rogers bill dated June 22, 2016, a Powerstream bill dated June 6, 2016 and an Enbridge bill dated June 22, 2016. Police also located a number of documents addressed to Mr. Chen at 75 Nuffield Street, Brampton, including a TD Bank replacement card letter and a CIBC paid receipt.
[57] Attached to the driver’s side visor of the Nissan was a garage door opener for 20 Kindy Street, which an officer confirmed was functioning and opened the garage at 20 Kindy Street.
[58] At 10:35am, police executed the CDSA search warrant at 20 Kindy Street, entering the premises using the key seized from Mr. Chen upon arrest. No one was inside the residence. The main floor of the house consisted of a small den, a living room, a kitchen, washroom, and laundry room. The garage was accessible from the laundry room. The top floor had a master bedroom and three additional bedrooms.
[59] Police searched the main and top floors of the house and located numerous documents and items:
In the living room, numerous documents, including utility bills and government documents, addressed to Mr. Chen at 20 Kindy Street, other documents addressed to Mr. Chen at 75 Nuffield Street, and Canada Revenue Agency documents issued April 25, 2016 addressed to Qu Chen at an address of 1E1-4675 Steeles Avenue, Scarborough. Police also located a document addressed to Tian Tian Cheng International Logistic Inc. at 1E1-4675 Steeles Avenue, Scarborough.
In the den, officers located several Rubbermaid containers, the frame of a bed, and suitcases, along with documents addressed to, or in the name of, Min Ge.
In the kitchen, officers located a zip lock bag containing 50 grams of pink pills above the hood fan, which tested as caffeine pills, several canisters of butane gas, and multiple stamps used to press pills.
In the top floor hallway closet, officers located TD bank documents addressed to Tian Tian Cheng International Logistic Inc. with an address of 1E1-4675 Steeles Avenue, Scarborough and a statement of account from Canada Revenue Agency.
In the master bedroom, inside a vanity, officers found numerous personal documents belonging to Mr. Chen, including his certificate of Canadian citizenship, his Canadian and Chinese passports, an expired Chinese passport, personal photographs, various travel cards and documents, mail from the Canada Revenue Agency addressed to Mr. Chen at an address of 1E1-4675 Steeles Avenue, Scarborough, a Certificate of Incorporation for Tian Tian Cheng International Logistic Inc. dated July 17, 2015 with a registered address of 1E1-4675 Steeles Avenue, Scarborough, mail from TD Bank addressed to Tian Tian Cheng International Logistic Inc. with an address of 1E1-4675 Steeles Avenue, Scarborough, and mail addressed to Mr. Chen at 75 Nuffield Street, Brampton. Police also located business cards in the name of Qu Chen and Teddy Chen inside a blue bag located on the floor in the master bedroom.
In a bedroom, officer located what appeared to be a bullet-proof vest on the top shelf of a closet. The room was otherwise empty.
[60] The basement was accessible by stairs located in between the den and the living room. The basement door inside the house was not equipped with a lock. The basement was also accessible from inside the garage via a set of stairs that led to a door to the basement. This door had a locking mechanism.
[61] Part-way through the execution of the warrant, officers noted an odour coming from the basement. A cursory search of the basement revealed a drug laboratory. Officers turned the address over to the York Regional Police Clandestine Team who, with the assistance of the Ontario Fire Marshall and York Region Emergency Medical Services, conducted a safety assessment of the scene. The laboratory could not be dismantled until the next day, June 24, 2016.
[62] On June 24, 2016, clandestine trained officers, together with Markham Fire Department, the Ontario Fire Marshall and York Region Emergency Medical Services returned to dismantle the laboratory. A video of the entire residence, including the basement, was taken. Equipment consistent with a drug laboratory was located in the basement in cardboard boxes, large Rubbermaid containers and lying loose on the floor, including masks, rubber gloves, and mixing bowls. A pill press was located at the bottom of the stairs.
[63] The cold cellar in the basement was converted into a “drying room”. The door to the cold cellar was not equipped with a lock. Two long shelves which wrapped around the cold cellar in an L shape were being used as drying racks. Police found a green substance drying on the entire length of one of the racks and a yellow substance drying on the entire length of another. The substances were being dried by many oscillating fans that were positioned in various locations on the drying racks. There were also numerous plastic containers containing various substances located on the racks.
[64] A second make-shift drying room was located in one corner of the basement. It had two drying racks, one of which was covered in a fine pink dust. This drying room was accessible through a 1 to 2-foot gap between the wall of the basement and the wall of the drying room. It did not appear to be in use, but the residue suggested it had been used in the past.
[65] Police seized a total of 3.2 kilograms of MDA, an analogue to MDMA, and 23.015 kilograms of methamphetamine from the basement of 20 Kindy Street.
[66] The value of the MDA seized ranged from a low of $158,400 to a high of $360,000, contingent on the weight at which it was sold. The value of the methamphetamine ranged from a low of $1,254,000 to a high of $2,861,5000, again depending on the weight at which it was sold.
[67] The search warrant for 75 Nuffield Street was also executed. Nothing of evidentiary value was located. The owner confirmed that he knew Mr. Chen, but that Mr. Chen only used the address to forward mail and had never lived there.
B. Defence Evidence
1. Evidence of Mr. Chen
[68] Mr. Chen testified on the trial and denied any knowledge of, or control over, the methamphetamine or MDA located in the basement of his home at 20 Kindy Street, or that he had any involvement in the production of controlled substances. He also called two witnesses, Mr. Chao Wang and Ms. Wen Wang, who visited him frequently at 20 Kindy Street between April and June 2016.
[69] He leased 20 Kindy Street in March 2016, after he returned to Canada from China. He returned to Canada in September 2015 with virtually no possessions and lived with a friend at 42 Hauser Street in Toronto. In March of 2016, he decided to lease 20 Kindy Street after speaking with friends from China who were planning to visit Canada and were looking for a “homestay” in Canada. Mr. Chen thought he might be able to attract other tourists in the future. He testified that he leased the property with the intention of living in the house, but also to use it as a homestay or Airbnb for students and Chinese tourists, in conjunction with a business idea to organize tours for Chinese visitors to Canada.
[70] In support of his explanation for leasing the home, the defence filed a brief of documents and photos. The brief included text messages sent in March 2016 between Mr. Chen and his girlfriend in China, in which he shared photos of the home and stated (when asked by his girlfriend why he needed such a big house) his intention to house family members once a year and otherwise, rent out the bedrooms to Chinese visitors and students. Mr. Chen testified that he had booked his first group to stay at 20 Kindy Street starting on July 16, 2016 for five days. The defence brief included a photo of the group, with Mr. Chen, arriving at Toronto Pearson Airport on July 16th, and a text message exchange between Mr. Chen and someone from the group who Mr. Chen referred to as his “sister-in-law”, discussing plans for their visit and setting out an itinerary. Finally, the brief included a series of photographs of some of the rooms within the house which were said to be “advertising” photos for the home as an Airbnb or homestay.
[71] He furnished the common room and a master bedroom for himself. He was waiting to find out the exact number of people coming in the group visiting on July 16th before furnishing the other bedrooms. He planned to buy furniture at a friend’s store.
[72] At the time he leased 20 Kindy Street, Mr. Chen was working at APA Autoparts as a delivery driver, earning $3000-4000 a month. The lease payments for 20 Kindy Street totalled $2400 a month. He testified that he rented out parts of the home to contribute to the monthly lease. He rented out the den of the home for storage to a friend named Min Ge, for $50 a month, and the basement, to someone named Bao Zhong Feng.
[73] He testified that sometime shortly after moving in, he met Mr. Feng, who was the husband of a friend. Mr. Feng mentioned he needed a place to store renovation tools and to use as a workshop for minor projects. Mr. Chen testified that he agreed to rent the basement to Mr. Feng for $800 a month.
[74] He saw Mr. Feng once to give him a key to the garage. He saw him bring in two boxes of tools. He did not see Mr. Feng after that, although believed Mr. Feng may have entered his home while he was at work on a few occasions, to eat lunch in the kitchen occasionally, once to take a shower, and once to borrow scissors. Mr. Feng had access to the basement (and the rest of the house) through the garage.
[75] Mr. Chen testified that he went down to the basement twice in May or June, after Mr. Feng rented the space, to switch on the water supply for the backyard. He noticed boxes and containers, but was not paying attention and did not notice anything of concern. He said he only left garbage in the basement and he had no need to enter the basement.
[76] He also testified that throughout April up to and including June 2016, he regularly had friends over to his house for dinner and barbeques. Photos were filed showing Mr. Chen and his friends in his dining room, kitchen and backyard on various dates in April 2016, and a photo of his dining room table which appeared to be set up for a dinner party in June 2016. No one ever noticed any noises or smells coming from the basement.
[77] He testified that he had no knowledge of the caffeine pills or pill press located in the kitchen. The butane canisters were used to operate his hot pot. The bullet-proof vest located in one of the bedrooms was a gift he received from a friend 10 years prior and was used for paintball.
[78] He stated that he did not know about the methamphetamine and MDA in the basement. He could not say whether the items belonged to Mr. Feng. After he was charged, he attempted to located Mr. Feng. He spoke to a friend who obtained a copy of Mr. Feng’s driver’s licence, which was made an exhibit at trial.
[79] In cross-examination, Mr. Chen accepted that Mr. Feng did not have exclusive access to the basement. He agreed that he had no lease or rental document between he and Mr. Feng. He also testified in cross-examination that when he leased the home, he was given one key to the main house and a remote control or “FOB” to the garage and that he gave Mr. Feng the FOB (not a key) to the garage.
2. Evidence of Chao Wang
[80] Chao Wang is Mr. Chen’s friend and co-worker at APA Autoparts. He is also Mr. Chen’s surety.
[81] He testified he visited Mr. Chen at his home once a week or once every two weeks to socialize with friends. They socialized on the main floor of the house and the backyard. There was never any discussion of going into the basement. He identified himself in a photograph of a group in Mr. Chen’s backyard for a barbeque. He was last at 20 Kindy Street on June 11th and did not notice any chemical smell, nor did he hear the sound of fans running. He understood Mr. Chen to be renting 20 Kindy Street so that his family could come to visit, and to host visitors from China.
[82] He was unaware of the drug laboratory in the basement of 20 Kindy Street. He recalled Mr. Chen mentioned something about someone wanting to rent the basement from him. He was shown a copy of Mr. Feng’s driver’s licence, but he did not recognize him. He testified that Mr. Chen told him he rented the house to have family come, as well as to rent out rooms to Chinese visitors. He never saw any clients at Mr. Chen’s home prior to the arrest.
[83] He testified that he has a friend who owns a furniture store near Victoria Park and Steeles Avenue and that Mr. Chen knew about the store.
[84] In cross-examination, Mr. Wang testified that he only went to Mr. Chen’s house on weekends and once stayed overnight. They had pre-arranged get-togethers and he never arrived unannounced. He was not at the house on the week leading up to the execution of the warrant and was not present on June 23rd when the warrant was executed.
3. Evidence of Wen Wang
[85] Ms. Wang is a friend of Mr. Chen’s who also visited him at 20 Kindy Street on a number of occasions for parties at his home. Her husband also attended parties with her at Mr. Chen house. She was last at 20 Kindy Street on Monday, June 18th. She came by Mr. Chen’s home for dinner after getting home from an overseas flight. She did not notice any unusual smells or sounds in the house.
[86] She was not aware of anyone other than Mr. Chen living at 20 Kindy Street, but testified that Mr. Chen told her he wanted his parents and girlfriend to visit Canada and that he had plans to have Chinese clients stay at the house during visits to Canada.
[87] She was unaware that Mr. Chen had rented his basement. She saw items stored in the den and was told by Mr. Chen that they belonged to a friend’s friend.
C. Positions of the Parties
[88] Mr. Streeter for the Crown argues that the only reasonable inference to be drawn from the evidence taken as a whole is that Mr. Chen had knowledge and control over the controlled substances in his basement and further, that he was either an active participant in the production of methamphetamine and MDA in his basement, or he was a willing party to the production by aiding and abetting another. The Crown argues that control of the items in the basement is proven by establishing control over the house. The Crown asserts that the direct and circumstantial evidence establishes, beyond a reasonable doubt, that Mr. Chen had control over all parts of his house, and further, that knowledge of the controlled substances and the production is proven by the circumstances.
[89] Ms. Schofield argues that Mr. Chen’s evidence raises a reasonable doubt that he had knowledge or control over the items in the basement, in that his evidence provides a reasonable explanation for how the methamphetamine and MDA could have been in his basement without his knowledge, namely that a third party (Mr. Feng, or someone under his direction), brought it into the basement, or produced the controlled substances in the basement, without his knowledge. Other evidence called by the defence corroborates an innocent explanation for why Mr. Chen rented the home, and corroborates his evidence that there were no observable indications of what was happening in the basement of the house.
[90] She further argues that the Crown has failed to prove its case beyond a reasonable doubt. She argues the Crown’s evidence offers only a “snapshot” in time, in that the evidence does not establish how long the methamphetamine and MDA were in the basement, or how long the drying process takes. In the absence of a firm timeframe, Ms. Schofield argues, it is impossible to conclude that Mr. Chen’s evidence that he had no knowledge of what was in the basement is unreasonable or implausible.
D. Analysis
1. General Principles
[91] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.
[92] The first is that the Crown bears the burden of proving Mr. Chen’s guilt beyond a reasonable doubt. This is a very high standard. It is not enough for me to believe that Mr. Chen is probably guilty. Proof of probable guilt is not proof beyond a reasonable doubt. On the other hand, it does not require the Crown to prove his guilt with absolute certainty.
[93] Second, Mr. Chen is presumed to be innocent of these charges. There is no burden on him to prove or disprove anything. The presumption of innocence stays with Mr. Chen throughout the case and is only defeated if and when the Crown satisfies the court beyond a reasonable doubt that he is guilty of the charges.
[94] I am required to make my decision based on the whole of the evidence. In assessing the credibility of a witness, I must look at each witness’s evidence individually, and in the context of the rest to the evidence to determine what, if any, of their evidence I accept. I can accept some, none or all of the evidence of any witness.
[95] In a circumstantial case such as this, I am required to examine the evidence as a whole, rather than individual items of evidence in isolation. It is the cumulative effect of the evidence that must satisfy the Crown’s burden of proof: R. v. Uhrig, 2012 ONCA 470 (Ont. C.A.), at para. 13.
[96] Finally, in a case such as this, where Mr. Chen has testified, the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply. First, if I believe the evidence of the Mr. Chen, I must acquit. Second, if I do not believe his testimony, but I am left in reasonable doubt by it or the defence evidence, I must acquit. Third, even if I am not left in doubt by the evidence called by the defence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
2. Credibility Findings
[97] For a number of reasons, I did not find Mr. Chen to be a credible witness and I do not believe his evidence that he had no knowledge or control over the methamphetamine and MDA found in his basement. I reject his evidence because his evidence as a whole is completely improbable, individual parts of his evidence lack credibility, and there were significant inconsistencies in his evidence.
[98] To begin with, I found Mr. Chen’s explanation for why he rented such a large house in Markham to be implausible, for a number of reasons.
[99] First, on his evidence, when he returned to Canada in 2015, he had virtually no possessions and was living with a friend. He had a job that paid him between $3000 and $4000 a month and was renting a car for $800 a month. He was unsure how long he would remain in Canada (He gave this as his reason for renting, rather than purchasing a car for himself). I do not believe his evidence that, based on a conversation with friends planning to visit Canada, he leased a large, 4-bedroom home at a cost of $2400 per month plus utilities and furnishings, in order to house his family and friends once a year, and offer out rooms for rent to other visitors from China. I find it highly improbable that he would have taken on a lease and utility payments that would consume most of his monthly salary, on the speculative plan that he would, at some point, earn income from renting out three bedrooms in the house.
[100] Second, the state of the house on June 23, 2016 when police executed the search warrant contradicts Mr. Chen’s evidence about his intended use for the house. On June 23, 2016, apart from the master bedroom which Mr. Chen used, there was no furniture in any bedroom, save and except a mattress which was placed on the floor of one bedroom. There was a bulletproof vest in a closet of one of the bedrooms. There was nothing else in any of the bedrooms. I do not accept Mr. Chen’s evidence that he was waiting to purchase furniture until he knew the number of people in a group visiting in July for five days. It strains common sense that anyone would buy furniture for a home based on the particular needs of one group visiting for five days. Moreover, the entire den on the main floor was being used to store the belonging of someone who had gone back to China and whose date of return to Canada was unknown to Mr. Chen. None of this is consistent with Mr. Chen’s evidence that he planned to rent out the rooms to Chinese visitors.
[101] Third, there was no evidence of an actual plan to use 20 Kindy Street as an Airbnb. I do not accept the defence’s assertion that the documents and photographs filed provide independent evidence that Mr. Chen was going to use 20 Kindy Street for this purpose. The photos of the home which were said to be “advertising” photos were simply photos of the rooms of the home with no evidence that the photos were posted anywhere to advertise the home as an Airbnb or homestay. There was also no evidence of any potential customers inquiring into the property. I do not accept Mr. Chen’s evidence that he intended to have the family visiting on July 16th stay at 20 Kindy Street. The text messages filed make no reference to having the family stay at 20 Kindy Street. Indeed, all that was discussed in the text messages was the arrangement Mr. Chen made for the family to stay at a hotel, not 20 Kindy Street, and their itinerary for the visit.
[102] Further, the text messages between Mr. Chen and his girlfriend, and the testimony of Chao Wang and Wen Wang establishes nothing more than the fact that Mr. Chen told his friends that he leased the house for potential rental income. In the context of the rest of the evidence and what was happening in the basement of the house, I find that Mr. Chen provided the explanation to his friends, and to the court, to explain the otherwise inexplicable decision to lease such a large home on a fairly modest income.
[103] I also found a number of other areas of Mr. Chen’s evidence, in particular regarding his financial circumstances, to be misleading and contradictory, including the following:
In examination in chief, he testified that his sole income was from his employment as a driver with APA Autoparts. He mentioned nothing of other sources of income or businesses in Canada. However, in cross-examination, he acknowledged that he had two businesses, one in China (a gym) and one in South Korea (logistics), and savings of Cnd$60,000 in a bank. I find that Mr. Chen left out these details in his examination in chief to leave the impression that his only source of income was his job as a driver for APA Autoparts, in order to enhance the plausibility that he needed rental income to cover the monthly cost of the lease for 20 Kindy Street.
He testified he had no businesses in Canada. However, in cross-examination, he was confronted with registration documents showing he had incorporated a business, Tian Tian International Logistic Inc., in July 2015. He then testified he incorporated the company for a friend in China. When asked about the registered address on the documents, he acknowledged that the registered address, IEI-4675 Steeles Avenue, was the address of his tax advisor. When he was confronted with further documentation, he acknowledged that he was the sole director of this company. I find Mr. Chen’s evidence that he had no companies in Canada to be untruthful, and his explanation for why he incorporated a company for a friend, and provided an address associated to his tax advisor, to be non-sensical.
He testified that he owed no debts, including to the government. However, in cross-examination, he was again confronted with correspondence from the Canada Revenue Agency which showed he owed the CRA a debt. He suggested perhaps the correspondence had not been opened. The documents, which were filed as an exhibit, are addressed to him. There was a figure circled on the document and a bank stamp on the document. The document was found in his living room. This contradicts Mr. Chen’s evidence that perhaps he did not see the document, or had not opened it. In my view, Mr. Chen was misleading the court when he professed no knowledge of this debt.
Although he claimed he could not afford a Porsche, he testified to purchasing a Porsche for a friend, who ran a car dealership, but had reached his quota for cars. I found this evidence to be implausible and non-sensical.
[104] Turning to the evidence about the basement, I found a number of aspects of Mr. Chen’s evidence about his contact with the basement, and his evidence about Mr. Bao Zhang Feng, the alleged basement tenant, to be unbelievable.
[105] First, there is no evidence to substantiate Mr. Chen’s claim that he rented the basement out to Mr. Feng. There was no lease and no rental agreement. There was no evidence of any payments to Mr. Chen for rental of the space. In fact, Mr. Chen seemed to have virtually no information about Mr. Feng, as he had to ask a friend, after his arrest, to help him get something to identify Mr. Feng. That anyone would rent out an entire section of their home without documentation, and allow that person unrestricted access to the entire home, with not much more than the person’s name, is entirely implausible.
[106] Second, his evidence that, after Mr. Feng began using the basement, he only went to the basement twice to turn on a water switch for the backyard, and that he did not look around or pay attention, sounded concocted and implausible. As a matter of common sense, Mr. Chen, the person responsible for this house, would have gone down to the basement more than twice, and certainly would have paid attention to how his basement was being used by someone who was, in effect, a stranger to him, and to whom he had given unrestricted access to his home.
[107] Third, Mr. Chen testified that when he leased the home, he was given one key (which he kept) and a remote control or FOB for the garage, which he said he gave to Mr. Feng to access the basement through the garage. Yet, the garage door remote control for 20 Kindy Street was found clipped to the visor inside Mr. Chen’s Nissan on the day of his arrest. Mr. Chen’s evidence that he gave this person the FOB is contradicted by direct evidence that the FOB was inside his vehicle.
[108] Fourth, I do not accept Mr. Chen’s evidence that he would not have planned to rent out rooms, or have friends over to the house, had he known there was a methamphetamine laboratory in the basement. For the reasons I have stated above, I do not believe Mr. Chen ever had a real intention of bringing guests to stay in the house. Further, with respect to Mr. Chen’s friends visiting, I consider it significant that (1) all gatherings were pre-arranged and were generally always on Saturdays (according to the evidence of Mr. Wang); (2) there was no evidence of any friends being present at the home during the weekend of June 23/24, 2016. Mr. Wang testified that he was last at the house on June 11th and Ms. Wang testified she was there on June 18th (which was a Monday); and (3) all the photos in the defence brief of people gathered at the house were from April 2016, some two months before police executed the warrant. The evidence does not support the assertion that Mr. Chen would not have allowed people into the house with a drug laboratory operating in the basement. He had the ability to control who came to the house, when, and for what purpose.
[109] For these reasons, I do not believe the evidence of Mr. Chen, nor does his evidence, on its own or in combination with the other evidence called by the defence, raise a reasonable doubt as to his knowledge and control over the items in his basement.
3. Does the Crown’s Evidence Establish Beyond a Reasonable Doubt that Mr. Chen had possession over the methamphetamine and MDA located at 20 Kindy Street?
[110] There is no dispute in this case that if it is proven beyond a reasonable doubt that Mr. Chen had possession over the controlled substances in his basement, then he possessed the substances for the purpose of trafficking. Indeed, given the quantity and street value of the substances seized, the only reasonable inference is that the methamphetamine and MDA were possessed for the purpose of trafficking.
[111] To succeed in a prosecution of possession for the purpose of trafficking, the Crown must establish beyond a reasonable doubt that the defendant had possession of the substance, that is, that he knew of its existence and had an element of control over it. “Possession” means possession within the meaning of s. 4(3) of the Criminal Code. “Possession” is defined in s. 4(3) of the Code as:
(3) For purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[112] To establish knowledge, it is not essential that there be direct evidence of the defendant’s knowledge of the presence of the subject matter of the charge. Knowledge may, as with any other issue of fact in a criminal case, be established by circumstantial evidence.
[113] As to the meaning of "control", the Court of Appeal in R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 (Ont. C.A.) at para. 7 stated:
Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 1980 CanLII 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff’d. (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193(S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.
[114] As noted in R. v. Pham, 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940 (S.C.C.), possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the defendant knew of the presence of the controlled substances and he had a measure of control over the substances. Constructive possession is complete where the defendant, (1) has knowledge of the character of the object; (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his ‘use or benefit’ or that of another person.
[115] As the person who leased the home and who had access to all parts of the home, including the basement (both through the unlocked door through the house, and with the key and garage door opener he possessed), Mr. Chen had control over the location of the substances.
[116] I also find, based on my rejection of Mr. Chen’s evidence, and taking the evidence as a whole, that the only reasonable inference to be drawn from the circumstantial evidence is that Mr. Chen knew about the methamphetamine and MDA in his basement. On a careful review of the video recorded by officers, the finished products were inside a cold storage area of the basement, however, the product was in plain view and there were numerous oscillating fans which were turned on, drying out the product. There were also containers and boxes of equipment related to the production of the drugs in plain view. The pill press was located at the foot of the stairs. Another pill press was located in the kitchen cupboard, together with a bag of caffeine pills. The value of the finished product was between $1.4 and $3 million dollars.
[117] As such, he was in personal possession of the substances.
[118] Even if there was a “Mr. Feng” or someone else involved in the production of methamphetamine in the basement of 20 Kindy Street, I find that there is no reasonable possibility that Mr. Chen would not have had knowledge of what was inside the basement.
[119] It is inconceivable that a drug producer would leave the product and evidence of the production out in the open for an unsuspecting homeowner to stumble onto the laboratory, unless that homeowner was also in possession of the product. In R. v. Dacosta, 2015 ONSC 1478, aff’d 2017 ONCA 588, Justice Hill observed, at para. 173, “[…] a fact-dependant circumstance which may contribute to common-sense inference-drawing in an unlawful possession case is the value of the item/substance which is in the custody of the accused but which, in light of the accused’s denial of knowledge, is said to be the property of a third party.” The Court of Appeal, in upholding Justice Hill’s decision, held that the quantity of drugs (in that case, dissolved cocaine in wine bottles) was significant enough to contribute to a common-sense inference that a third party would not entrust the accused with the cocaine without her knowledge and control. Justice Hill also cited R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), in which the Ontario Court of Appeal, at paras. 3-4, upheld the inference of a trial judge that the accused being present in an apartment with a significant quantity of drugs and money, was entrusted to be a keeper of the drugs.
[120] In R. v. McIntosh, 2003 CanLII 41740 (ON SC), Justice Hill again noted, at paras. 45 and 46, that the retail value of drugs associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic, but also whether the person had knowledge of the substance itself and, paraphrasing, that a drug dealer or producer is unlikely to expose cargo of significant value to the risk of discovery or loss by giving others uninvolved in the cargo access to it: see also R. v. Amare, 2014 ONSC 4119 (Ont. S.C.), at para. 108
[121] The evidence also does not support the suggestion advanced by the defence that Mr. Feng (or someone else) might have put the items in the basement within days of the warrant being executed, opening up the possibility that Mr. Chen might not have been aware. For reasons I have already stated, I have strong doubt that there ever was a “Mr. Feng”. In any event, the scope of the operation in the basement, including a large drying area, a secondary drying area which had pink powder residue, the variety of boxes and containers containing various pieces of equipment and supplies, all suggest the space was used for production for some period of time and does not support an inference that the production may have been very recent.
[122] Even if it was recent, given my findings that the scope and value of the drug production was such that Mr. Chen had to have been, at a minimum, in constructive possession of the drugs, it does not matter whether the laboratory materials and controlled substances were moved into the basement near the date of the search warrant execution.
[123] The only reasonable inference to be drawn on the facts of this case is that Mr. Chen personally or constructively possess the drugs. Mr. Chen knowingly kept the drugs in the basement, either for his own benefit, or for the benefit of others. As such, the Crown has proven, beyond a reasonable doubt, that Mr. Chen possessed the methamphetamine and MDA for the purpose of trafficking.
4. Does the Crown’s Evidence Establish Beyond a Reasonable Doubt that Mr. Chen Produced Methamphetamine and MDA?
[124] The gravamen of the offence of production is the active participation in producing of controlled substance. Section 2(1) of the Controlled Drugs and Substances Act defines “produce” for the purpose of the Act:
“produce” means, in respect of a substance … to obtain the substance by any method or process including:
(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or
(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted otherwise obtained, and includes offer to produce …
[125] A person may be convicted of production as either a principal or a party who aids or abets the principal. The Crown may prove the essential elements of the offences of possession and production by direct or circumstantial evidence or a combination of the two. Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the defendant is the only reasonable inference to be drawn from the facts.
[126] There is no dispute that finished methamphetamine and MDA were located in the basement of 20 Kindy Street. It was conceded that the substances found could be pressed into pills, constituting production. Therefore, this case turns on whether there is sufficient evidence to establish, beyond a reasonable doubt, that Mr. Chen had knowledge and control over the methamphetamine and MDA at 20 Kindy Street.
[127] I have rejected Mr. Chen’s explanation regarding the presence of methamphetamine and MDA in his basement. I conclude that he took an active part in the production of the substances. At the very least, he permitted others to set up a methamphetamine laboratory in the basement of his home, which he occupied and controlled. More likely than not, it was he himself who set this up. Either way, the Crown has established, beyond a reasonable doubt, that Mr. Chen produced methamphetamine and MDA.
III. Conclusion
[128] I am satisfied beyond a reasonable doubt that Mr. Chen had knowledge and control over the methamphetamine and MDA found in his basement at 20 Kindy Street, and that he possessed those substances for the purpose of trafficking.
[129] I am also satisfied beyond a reasonable doubt that Mr. Chen produced methamphetamine and MDA, either as a principal or a party to the offence.
[130] I therefore find Mr. Chen guilty of all counts.
Released: February 1, 2019
Signed: Justice R. Maxwell
[^1]: The original application also alleged a breach of Mr. Chen’s s. 8 rights on the basis that the warrant was executed in an unreasonable manner because the Toronto Fire Department and officers from York Regional Police also attended at the residence. The original application further alleged there were no grounds to arrest Mr. Chen, violating his rights under s. 9 of the Charter. Neither argument was pursued in submissions.
[^2]: Constable Chase did not include in the June 23rd ITO that he knew, as of June 11, 2016, that “Teddy” provided an address of 20 Kindy Street to someone on an intercepted communication. This information came out during Constable Chase’s evidence on the voir dire.