ONTARIO COURT OF JUSTICE

CITATION: R. v. Nguyen, 2022 ONCJ 431

DATE: September 23, 2022

COURT FILE No.: 0911-998-21-1718

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRIAN NGUYEN

Before Justice A. Wheeler

Heard on September 19, 2022 and September 22, 2022

Reasons for Judgment released on September 23, 2022

N. Beitman-Brener.................................................................................... counsel for the Crown

N. Weinstein........................................................................................ counsel for the defendant

WHEELER J.:

[1]. Illicit drugs are a serious problem in any custodial setting. They create an unsafe environment for inmates and staff alike. This case involves a staggering amount of drugs and two cell phones found during a search at Collins Bay Institution, a medium security penitentiary in Kingston, Ontario.

[2]. On November 22, 2021, staff at Collins Bay Penitentiary located 2.2 kilograms of “shatter” a concentrated form of cannabis, in the void above the ceiling of an inmate’s cell. In value, it was worth over $2.2 million inside the penitentiary. In volume, the drugs were about the size of a large bed pillow. The Crown’s expert witness, who has extensive experience in penitentiary security, testified that this was the largest single seizure that he had ever heard of. Two contraband cell phones were also found along with the drugs.

[3]. Arising out that, Brian Nguyen is charged with possession of cannabis for the purpose of distributing it, contrary to s. 9(2) of the Cannabis Act, and possession of contraband, to wit two Samsung smart phones and 2251.58 grams of shatter beyond the visitor control point in an penitentiary, contrary to s. 45(a) of the Corrections and Conditional Release Act.

[4]. The Crown’s case is entirely circumstantial. The Crown and defence agree that the case turns on whether the Crown has proved beyond a reasonable doubt that Mr. Nguyen knew about the drugs and the cell phones that were found during the search. If he did, they agree that the only reasonable inference is that he was in possession of them and would then be in possession of cannabis for the purpose of distributing it.

[5]. The Crown called a correctional officer who was assigned to the relevant unit, the correctional officer who discovered the drugs, and a senior intelligence officer who gave expert opinion evidence on contraband within federal institutions and the inmate subculture or code.

[6]. The defence called no evidence.

Evidence about the drugs and the phones and where they were found

[7]. The following evidence was not contentious.

[8]. Mr. Nguyen had been the only occupant of his cell since April 2021.

[9]. Officer Ruff, one of the drug dog handlers who was part of the search team, found the drugs and the phones in a void above the drywall next to a ventilation duct in the ceiling of Mr. Nguyen’s cell. Another member of the search team had removed the vent plate cover before Officer Ruff entered the cell to search the ceiling area.

[10]. Those vent plates are held on with “security” screws that require a special screwdriver bit. The bit is in fact commercially available, and inmates are routinely found in possession of the special bits or make their own improvised ones. A person would have to stand on something in order to reach the vent plate, but chairs are readily available.

[11]. Mr. Nguyen’s cell was one of eight on a unit known as J pod. J pod was described as a “responsibility” unit. In order to be on that unit, inmates had to have demonstrated that they were trustworthy, because they had a great deal more freedom than other inmates in a medium security setting. For instance, guards never locked the cell doors and inmates in fact had the keys to their own cells. Officer Herbold, who was assigned to that unit, testified that the cell doors are unlocked 24 hours a day.

[12]. The ceiling above Mr. Nguyen’s cell was not the only place where contraband was found in this “responsibility” unit on the day of the search. The search team located contraband in the ceiling ducts in four other inmate’s cells: marijuana, a smartphone, charging cable and matches valued at $5,112; marijuana valued at $12,530; marijuana, tobacco and scales valued at $17,198, and in a fourth inmate’s cell they found packages containing hooks and netting. The search team also located almost $79,000 worth of shatter and marijuana in the vent of a communal bathroom.

[13]. Cells are searched when inmate occupancy changes, so Mr. Nguyen’s cell would have been searched before he moved into it in April. The whole unit was subject to a routine search a few days before all the contraband was found. Ceiling vents are a known location where inmates hide contraband. Officer Herbold testified that they do not open the vent plate unless it looks like it has been tampered with. Nothing caught her attention about it when Mr. Nguyen’s cell was searched in the days prior to the search that gave rise to the charges.

[14]. Two days prior to the search that found the contraband, officers noticed a strong smell of cannabis marijuana in the vicinity of cells 2 and 3. Mr. Nguyen was in cell 7. Officer Ruff did not notice any odour coming from the packages he located above the ceiling.

[15]. During the day inmates would leave the unit for various reasons such as work and programming. They could come and go, but inmates from other pods were not allowed onto the unit.

The expert evidence

[16]. The Crown called Miguel Costa, Ontario Regional Intelligence Coordinator for the Correctional Service of Canada. Mr. Costa gave expert evidence about contraband activities in penitentiaries and the subculture of inmate life, often referred to as the inmate code. His evidence went in on consent, and I made a brief ruling that it was admissible.

[17]. The Crown elicited evidence from Mr. Costa that there was a very low probability that Mr. Nguyen did not know about the items hidden in the ceiling of his cell. I question whether that aspect of his evidence was properly admissible, as it purports to answer the very question at issue in the trial. See R. v. Singh, 2014 ONCA 791 at para. 42. That said I did not understand the Crown to be asking me to rely directly on that aspect of his evidence, but rather to rely on the reasons that Mr. Costa gave in support of that. At the end of the day, the question of knowledge is up to me as the trier of fact.

[18]. Mr. Costa testified that an important component of the inmate code is that an inmate’s cell is their own personal space, and that they alone are responsible for their cell. This means that an inmate must not enter another inmate’s cell without the occupant’s permission. Just for ease of description, I will call this the cell rule. Mr. Costa testified that if an inmate was seen breaking the cell rule, word would get back to the occupant of the cell. There would be repercussions that might include violence or being labelled a cell thief. It is very bad to be labelled as a cell thief.

[19]. In Mr. Costa’s opinion, the cell rule made it highly unlikely that an inmate would enter another inmate’s cell and hide such a large and valuable amount of contraband without the knowledge or permission of the cell occupant. He testified that if an inmate learned that another inmate had entered his cell, the occupant inmate would have a quandary – they would have to choose to retaliate or else be seen as an easy mark.

[20]. Mr. Costa also testified that given the value of the contraband here and the length of time that Mr. Nguyen had lived in that cell it was extremely unlikely that it would have been simply abandoned by a previous occupant. A message would have come back to someone on the unit and the items would have been retrieved.

[21]. Mr. Costa’s opinion was initially predicated on an understanding that cell doors would be locked by the officers when inmates left to go to work or for programming, which would limit opportunities for inmates to access a cell in breach of the inmate cell rule. He did not know that this particular unit functioned differently, and that it was up to the inmates whether to lock their cells. He acknowledged that unlocked cells would make it less difficult for an inmate to access another inmate’s cell.

[22]. Mr. Costa also testified that a large amount of contraband requires an organized, coordinated effort. In his opinion, the amount of contraband at issue here would require support and assistance and would not be something that one inmate could do on their own. Mr. Costa testified that another part of the inmate code is that inmates are expected to assist one another when asked, but with the caveat that the person has to be told what they are being asked to do.

[23]. He also testified that there would be ways for contraband such at that at issue here to be covertly brought onto the unit without other offenders knowing, and that in fact an inmate would not want to be overt about it because of the risk that another inmate might inform on them, even though not informing is a cardinal principle of the inmate code.

[24]. Mr. Costa testified that inmates are not the only vector of contraband within institutions, and that other vectors include staff and outside contractors.

[25]. Mr. Costa also testified that it is not unusual for an inmate to store contraband in an area that is outside their immediate control. He testified that inmates know the guards’ security routines and that they learn when to expect cell searches. However, if contraband is put in a common area beyond the owner’s immediate control, they would engage support from other inmates to keep an eye on it.

[26]. Mr. Costa acknowledged that if a ceiling void was continuous across the top of adjacent cells it could make sense for an inmate to push items beyond arm’s length as a way of hiding them, and that inmates are adept at using hooks and nets to retrieve things, which is known as “fishing”. He also testified that inmates are ingenious in finding hiding places and in their recovery methods.

Absence of evidence

[27]. There was no evidence on quite a broad range of issues. It is important that I address these points because ultimately the absence of evidence plays a large role in my assessment of the case. For instance:

• There was no evidence about the physical construction of the unit or the parameters of the void above the ceiling. I do not know whether the void extended beyond the edges of Mr. Nguyen’s cell such that it could be accessed from adjacent cells or other places.

• The evidence did not include any photographs or description of the ceiling vent plate prior to it being removed by the search team. There is no evidence about whether the vent plate had or had not been visibly tampered with.

• There was no evidence of Mr. Nguyen having possession of a tool bit to undo the vent plate screws, either on the day of the search or at any point previously.

• There was no fingerprint evidence relating to the vent plate, the surrounding ceiling drywall, the packages of drugs or the two cell phones.

• There was no DNA evidence relating to any of those things or the socks that the phones were found in.

• There was no evidence relating to forensic analysis of the phones.

• There was no detailed evidence about inmate schedules. I do not know whether Mr. Nguyen was routinely on the pod during the day, or indeed how many inmates were routinely on the pod during the day.

• The Crown’s case did not include any evidence that might assist in understanding how the dynamics of the inmate code actually played out amongst the eight residents of J pod. For instance, what was Mr. Nguyen’s status with his fellow inmates? Was he a leader and someone that others deferred to? Was he at the bottom of the pecking order or someone who was routinely left out or ostracized?

[28]. As indicated above, I have set out these points because the absence of evidence is central to my analysis. I want to be clear that I intend absolutely no criticism of Crown counsel in the presentation of the case. The Crown cannot present evidence that it does not have. In addition, I am mindful that when the correctional authorities have information about the presence of contraband, their foremost concern is to secure it in the interests of institutional safety, and that evidence gathering may have to be a secondary concern.

Analysis

[29]. This is a circumstantial case. It turns on whether the Crown has satisfied me that the only reasonable inference is that Mr. Nguyen knew that the drugs and the phones were in the ceiling cavity above his cell. This is a function of the standard of proof beyond a reasonable doubt, and the dangers associated with drawing inferences from circumstantial evidence. If the evidence is capable of supporting a reasonable inference that Mr. Nguyen did not know about the items in the ceiling, I must find him not guilty. In assessing this, an absence of evidence can be important if as a matter of logic and human experience it ties into plausible theories or reasonable possibilities other than guilt. See R. v. Villaroman, 2016 SCC 33 at paras. 25-31, 35-38.

[30]. The Crown argues that there are only two reasonable inferences, both of which point to guilt. The Crown says that I should conclude that Mr. Nguyen was either directly involved in placing the items in the ceiling cavity, or he knew or was willfully blind to the fact that someone else had placed them there. The Crown relies first and foremost on the fact that the items were found above the ceiling in Mr. Nguyen’s cell. Mr. Nguyen was the only occupant of that cell and had been in that cell for several months. Behind the vent plate the duct work did not fit tightly to the drywall and the drywall looked like it had been compressed. The items were within arms reach once the vent plate was removed.

[31]. In conjunction with that evidence, the Crown relied heavily on the inmate cell rule. The Crown argues that it is not reasonable to suppose that someone else could have entered Mr. Nguyen’s cell without his permission and left the items there without his knowledge and that at the very least in that circumstance Mr. Nguyen was willfully blind about the items in the ceiling.

[32]. The defence argues that these are not the only reasonable inferences. I agree, for the following reasons.

[33]. The lack of evidence about the parameters of the space above the ceiling in Mr. Nguyen’s cell means that I cannot be sure that the only way to access that cavity was through Mr. Nguyen’s cell. No one was able to say whether the ceiling cavity extended across adjacent cells or whether there were other ways of accessing it. Mr. Costa testified that inmates are ingenious about hiding places and recovery methods for contraband. I cannot on the evidence before me exclude as a reasonable possibility that the space was accessible in other ways than through Mr. Nguyen’s cell. I am therefore not able to find that the only reasonable inference is that the items were placed in the ceiling by accessing that space from Mr. Nguyen’s cell. This finding by itself means that the Crown has not proven that the only reasonable inference is that Mr. Nguyen knew or was willfully blind that the items were in the ceiling.

[34]. Even if I were to infer that the drugs and phones were placed in the ceiling from within Mr. Nguyen’s cell, I could not be sure that Mr. Nguyen was personally responsible for storing them there. Again, this flows from a lack of evidence. There is nothing beyond the location of the items to tie them to Mr. Nguyen personally. There is no evidence of Mr. Nguyen’s fingerprints or DNA on the vent cover, the duct work, the ceiling drywall, the drug packaging or the cell phones, and no forensic analysis of the cell phones. Unlike one of the other inmates, there is no evidence of Mr. Nguyen behaving suspiciously when the search was initiated.

[35]. I am also unable to find that if someone else put the items in the ceiling, Mr. Nguyen must have known or been willfully blind that they were there. The evidence that cells were left unlocked coupled with the lack of evidence about inmate movements during the day means that I cannot be sure that if another inmate were to enter Mr. Nguyen’s cell, that he would definitely know or find out about it. Furthermore, there is a lack of evidence about how the inmate code actually manifested on this unit and Mr. Nguyen’s status with his fellow inmates. This leaves me unsure that the inmate cell rule would in fact stop another inmate from entering Mr. Nguyen’s cell, or that Mr. Nguyen would necessarily learn about it.

[36]. Given the total amount of drugs and contraband found on this “responsibility” unit it does seem reasonable to infer that inmates likely worked cooperatively, but it seems plausible to me that they could also work together to exclude someone they disliked or who was uncooperative or seen as untrustworthy.

[37]. Even if I were to accept that Mr. Nguyen must have known if another inmate went into his cell, the evidence and absence of evidence about the state of the vent plate leaves me unable to conclude that he was necessarily willfully blind that contraband was hidden in the ceiling. The evidence before me is that there was nothing unusual about the vent plate a few days before the search, and there is no evidence that it looked abnormal or unusual on the day of the search. This is a gap in the Crown’s case, and I cannot fill it with speculation. If there were no signs that the vent plate had been tampered with then, like the guards with their routine searches, there would be no reason for Mr. Nguyen to see a need for further inquiry. See R. v. Onasanya, 2018 ONCA 932 at paras. 23-24.

[38]. In considering these issues, I have been mindful of the Crown’s argument that it seems unlikely that such valuable contraband would be hidden in the cell of someone who was not directly involved or accountable to the owner. This is a solid point in favour of the Crown’s position. However, I find that it is not strong enough for me to discount inferences that are not consistent with guilt. There was evidence that inmates learn when searches can be expected. There was also evidence that not informing on fellow inmates is a central tenet of the inmate code, backed up by expectations of violence and retribution. In my view, it cannot be discounted that an inmate might indeed use an unsuspecting inmate’s cell as a hiding place. This would protect the contraband owner from the consequences of being found in possession of it and, depending on the power dynamics, they could be confident that if the unsuspecting inmate found the contraband, they would not inform on them or attempt to keep it for themselves.

[39]. The most likely inference in this case is that Mr. Nguyen knew the drugs were hidden in the ceiling above his cell. However, it is not in my view the only reasonable inference. The standard of proof beyond a reasonable doubt has not been met.

Conclusion

[40]. I find Mr. Nguyen not guilty on both charges.

Released: September 23, 2022

Signed: Justice A. Wheeler