ONTARIO COURT OF JUSTICE

CITATION: R. v. Yang, 2019 ONCJ 215

DATE: 2019-03-21

COURT FILE No.: Brampton 3111 998 17 9748

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

YANG YANG

Before: Justice G.P. Renwick

Heard on: 11 February and 07 March 2019

Reasons for Judgment released on: 21 March 2019

Counsel: E. Taggart, counsel for the Public Prosecution Service of Canada J. Christie, counsel for the defendant Yang Yang

REASONS FOR COMMITTAL

INTRODUCTION

[1] At the outset of the preliminary hearing the prosecutor indicated that it was not proceeding on count #1, trafficking cocaine, or count #4, breach of recognizance. Accordingly, the Defendant is discharged on those counts.

[2] Also, at the start, it was indicated that the prosecution would seek committal of the Defendant on four counts:

• possession of cocaine (benzoylmethylecgonine) for the purpose of trafficking (count 2);
• possession of ketamine (2-(2-chlorophenyl)-2-(methylamino) cyclohexanone) for the purpose of trafficking (new count);
• possession of oxycodone (dihydrohydroxycodeinone) for the purpose of trafficking (new count); and
• possession of proceeds of crime over $5000 (count 3).

[3] It was initially believed that all of the drugs located by police in the Defendant’s bedroom were cocaine. Once all of the analyses proved otherwise, the prosecution indicated its intention to seek committal on the additional counts. The Defendant took no position on this issue.

[4] The preliminary hearing raised two issues:

i. Was the defendant in possession of all of the drugs and cash found in the bedroom of his residence; and ii. Without an expert opinion can the prosecution establish that the substances were possessed for the purpose of trafficking?

[5] During submissions, counsel for the Defendant conceded that it was reasonable to commit the Defendant to stand trial for possession of the drugs found, simpliciter. This was a reasonable concession given the location of the drugs found, within the Defendant’s bedroom. The Defendant made no submissions about the money also found in his bedroom.

THE EVIDENCE

[6] Police Constable David Seville testified that he had been briefed about a suspected drug dealer. During the brief investigation that gave rise to the charges before the court, this officer performed several roles: he assisted with mobile surveillance, he arrested a suspected drug purchaser (Mr. Delbel), and eventually, during the execution of a search warranted executed at the Defendant’s residence, he breached the door of the home and he became the exhibits officer for items seized by the police.

[7] Through this witness, an exhibits list of items seized and photographs taken of things observed and/or seized were entered. As well, P.C. Seville weighed substances and sent samples of suspected drugs to Health Canada for analysis. Drug Certificates were introduced to establish that six of eight suspected substances tested as controlled drugs or substances, while two samples could not be identified.

[8] Officer Cory Churly testified very briefly about having made an observation from about 30’ away in daylight of the Defendant leaving his vehicle and getting into another car. Within less than a minute this officer heard another officer on the police radio indicate that the Defendant had left the other vehicle and returned to his own car.

[9] This evidence was corroborated by the evidence of P.C. Daryl Sauve. He testified that he observed the Defendant park his car next to another car at the rear of a convenience store in a plaza. Also, this witness testified that he saw the Defendant exit his car and enter the passenger side of the car he parked beside. The officer told the court that within a short period of time, as he made a U-turn, the Defendant left the other car and got back into his own. The officer’s belief was that he had just witnessed a narcotics transaction based upon the information that the Defendant was a drug-dealer, he had been followed to the back of a plaza, he parked beside another car, he briefly entered that car where there was a driver, he left and re-entered his own car, and both cars immediately left in different directions.

[10] Constable Sauve also testified about the various items observed in the room he had searched, where the Defendant was located on the bed. In that room, police saw the Defendant’s health card on the dresser.

[11] This officer testified that in the bedroom where the Defendant was found, there were many video controller boxes. In some of the video controller boxes the officer described finding the following items:

• a glass jar with a suspected drug within;
• 14 green pills;
• plastic baggies and a charger;
• a white rock-like substance in a baggie; and
• in different boxes, several other baggies containing white powder.

These substances were the ones sent for analysis to Health Canada by Constable Seville.

DISCUSSION

[12] In this part, I will discuss my role as a preliminary hearing justice and the test for committal.

[13] In order to commit the Defendant to stand trial upon the charges sought by the prosecutor, I have to be satisfied that there is some evidence on each element of all offences, upon which a properly instructed jury could reasonably rely to find the Defendant guilty of these crimes beyond a reasonable doubt.

[14] In R. v. Pinnock,[^1] Mr. Justice Hill reviewed the jurisprudence of the role of the preliminary hearing justice, in the context of an application for certiorari to quash the defendant’s committal to stand trial for murder. With respect to circumstantial evidence and the limited weighing function of the preliminary hearing justice, His Honour enumerated many of the governing principles, including the following:

1. A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" at the preliminary inquiry, "shall":... if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial ...

2. In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

3. If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit to trial.

4. The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence.

5. As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence. In other words, the preliminary inquiry is not "a forum for litigating the merits of the case against the accused". Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered.” Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence.

6. The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred." The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence as there exists "an inferential gap beyond the question of whether the evidence should be believed." Determining whether "facts have been established by evidence from which [the matter in issue] may reasonably be inferred" does not require the court to ask whether facts ought to be inferred. The preliminary inquiry judge is not to choose among competing inferences arising from the primary facts in evidence.

7. Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence." Most cases "will involve hiatuses in the evidence which can be filled only by inference." "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess." …

8. Some inferences are strong and capable of creating practical certainty while others are weaker. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw or indeed the most obvious or compelling inference. The trier of fact, of course, assesses the evidence "in light of common sense and human experience." The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence [references and citations omitted].[^2]

[15] It is trite to note that I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in my limited role as a preliminary hearing justice: see R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 (C.A.) at para. 15. As the trier of inference, I am required to perform a limited weighing of the circumstantial evidence to determine if the inferences sought by the prosecution are indeed capable of being drawn.[^3]

[16] In order to commit the Defendant to stand trial for the requested alleged offences, I have to be satisfied that there is some evidence of each element of each charge, which if believed, would satisfy a properly instructed jury, acting reasonably, of the Defendant’s guilt beyond a reasonable doubt. Simply put, I have to determine whether it is reasonable on the evidence I have heard for a jury to find the Defendant guilty of possession of the drugs found for the purpose of trafficking. No issue was taken with the possession of the large amount of money kept in the Defendant’s closet and in his desk, so I will say more about this, below.

[17] There is no direct evidence respecting the Defendant’s purpose for possession of the illicit items found by the police. The prosecutor relies upon the reasonable inferences which may be drawn from the circumstantial evidence (the alleged drug transaction and the drug paraphernalia also found) to support the required inference of his purpose in possessing these drugs. The prosecutor urges me to consider the evidence in its entirety in order to conclude that a jury could infer that the Defendant was in possession of the drugs found for the purpose of trafficking.

[18] The Defendant argues that the lack of expert evidence leaves a gap which can only be bridged by speculation, rather than permissible inference. For instance, counsel suggests that it is not known if the Defendant is a casual user of all of the drugs found. Moreover, it is not known what amounts of each drug could be safely taken by a user for one “hit” or several, and over what period of time. The Defendant suggests, and I agree, that patterns of drug consumption are not issues for which judicial notice can be taken.

[19] I have neither the personal experience nor the knowledge of how much cocaine, ketamine, or oxycodone one might safely ingest, and over what period of time, either as a recreational user or as an addict (assuming each category of user exists for each of these drugs – again, I just do not know), in order to assess the possible inferences that may arise from the quantities of the drugs found.

[20] However, the evidence reveals the following:

i. The amount of ketamine seized from Mr. Delbel was approximately 3.1g;[^4] ii. The ketamine seized from Mr. Delbel was located in his front, right pant pocket; iii. The ketamine seized from Mr. Delbel was contained within a small, clear, plastic, zip-lock baggy; iv. In addition to the cash found with his driver’s license ($95) and secreted within his bedroom ($3520 found in the desk, and $7510 found in his bedroom closet in a sunglasses case), the Defendant had a tightly rolled-up $50 bill on the nightstand of his bed; v. Three glass jars with green lids and white powder residue inside them were located on the vanity counter in the ensuite bathroom adjoining the Defendant’s bedroom; vi. A glass jar with a green lid which contained approximately 66.1g[^5] of ketamine was secreted in a video controller box in the Defendant’s bedroom; vii. The glass jar with a green lid which contained approximately 66.1g of ketamine was similar, if not identical, to the three glass jars located in the Defendant’s bathroom; viii. 14 Oxycodone pills were secreted in a video controller box in the Defendant’s bedroom; ix. Approximately 12.5g of a “rock-like substance” which was cocaine was secreted in a video controller box in the Defendant’s bedroom; x. Approximately 2g of powder cocaine was secreted in a video controller box in the Defendant’s bedroom; xi. Approximately 2g (total) of an untested powder was secreted in three different baggies found in separate video controller boxes in the Defendant’s bedroom; xii. Approximately 1.1g of an unknown powder in a plastic container was located on the desk in the Defendant’s bedroom; xiii. Approximately 23.9g of an unknown powder in a plastic baggy was located in the desk in the Defendant’s bedroom; xiv. A plastic cup with white powder residue inside it was located on the desk in the Defendant’s bedroom; xv. Approximately 0.25g of MDMA in a plastic baggy with blue stars was secreted in a video controller box in the Defendant’s bedroom; xvi. Clear plastic “dime” bags were secreted in a video controller box in the Defendant’s bedroom; and xvii. A digital scale was secreted in a video controller box in the Defendant’s bedroom.

[21] Several reasonable inferences may be readily drawn on this evidence:

i. The digital scale can be used to measure quantities of drugs; ii. The plastic baggies can be used to store drugs or separate them into smaller quantities; iii. Small baggies of drugs can easily be concealed, carried, or passed between people; iv. The monies were put away so that they would not be seen by the other occupant of the residence (Ning Huo); v. The drugs, baggies, and digital scale were hidden in video controller boxes so that they would not be seen by the other occupant of the residence; vi. Mr. Delbel parked behind a plaza to avoid being seen meeting with the Defendant; vii. Mr. Delbel received ketamine from the Defendant during their brief encounter; viii. The Defendant is a drug dealer; and ix. The monies in the Defendant’s bedroom are the illegal proceeds of drug trafficking.

[22] Counsel for the Defendant argued against drawing any inferences about the baggies found in the Defendant’s bedroom and the baggy containing ketamine located on Mr. Delbel on the basis that there was no evidence comparing the baggies. It is also true that there is no indication of the level of purity of the ketamine found on Mr. Delbel or that found in the Defendant’s bedroom. These are all good points that the ultimate trier of fact must consider, however, at this stage, they are somewhat moot.

[23] As Moldaver J.A., as he then was, wrote in R. v. Katwaru, 2001 CanLII 24112 (ON CA), [2001] O.J. No. 209 (C.A.) at para. 40:

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[24] The test for committal does not require that inferences must be singular, irresistible, or even easy to draw. They need only be reasonable.

[25] Counsel also argued that in the absence of expert evidence, the court cannot determine how much ketamine, cocaine, or oxycodone is sufficient to be for the purpose of trafficking. If the prosecution were simply relying on the amounts of the drugs, in the context of this case, I would completely agree. However, there are several points to consider.

[26] First, quantity is not the exclusive determinant of the purpose of drug possession, without which no conclusions can ever be drawn. Triers of fact are entitled to draw upon all of the circumstances surrounding the possession and may not require expert evidence to come to a conclusion that drugs were possessed for the purpose of trafficking: see R. v. Dixon, [2012] O.J. No. 2773 (S.C.J.), aff’d. 2014 ONCA 835 at paras. 12-14 and R. v. Scott, [2003] O.J. No. 90 (S.C.J.) at paras. 53-56, aff’d. [2003] O.J. No. 4072 (C.A.).

[27] Second, “context is important.”[^6] The manner of concealment, the other paraphernalia (baggies, a scale, large amounts of cash), the presence of different drugs, and unknown substances, all factor into whether or not a reasonably instructed trier of fact could conclude that these drugs were possessed for the purpose of trafficking. The amount of the drugs is only one factor that could be used by the trier of fact to determine the purpose of the Defendant’s possession of these drugs.

[28] Lastly, the circumstances surrounding the very brief meeting between Mr. Delbel and Mr. Yang lead to a reasonable inference that they conducted an illicit drug transaction. The arrest of Mr. Delbel with ketamine in a small baggy on his person bolsters the inference that the Defendant is a drug trafficker who possesses drugs for that very purpose.

[29] Again, all of the individual circumstances or pieces of evidence independently prove very little, however, when linked together, they form a powerful chain of inference of drug possession for the purpose of trafficking, which could reasonably be drawn by the ultimate trier of fact.

CONCLUSION

[30] Mr. Yang Yang you are committed to stand trial for possession of cocaine for the purpose of trafficking, possession of ketamine for the purpose of trafficking, possession of oxycodone for the purpose of trafficking, and possession of proceeds of crime over $5000.

Released: 21 March 2019

Justice G. Paul Renwick

[^1]: [2007] O.J. No. 1599 (S.C.J.). [^2]: Pinnock, supra, at para. 42. [^3]: Arcuri, supra, at paras. 1 and 23-30. [^4]: It does not appear that the baggy containing the drug was weighed and subtracted from this gross weight. [^5]: Accepting the Crown’s evidence at its highest, the officer properly subtracted the weight of the jar from the total weight to arrive at the approximate weight of the ketamine found inside the jar. [^6]: Scott (S.C.J.), supra, at para. 53.