COURT FILE NO.: CR 11-10
DATE: 20120316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Hau Duong
Accused
David Holmes, for the Crown
Donna Pledge , for the Accused
HEARD: March 5, 7 and 8, 2012
J.S. O’Neill
REASONS FOR JUDGMENT
PART A: INTRODUCTION
[1] The trial of Mr. Duong on his six count indictment proceeded in the Superior Court of Parry Sound on the following dates: March 5, 7, and 8, 2012.
[2] The Crown and Defence called evidence at the trial. At the conclusion of the trial I reserved my decision pending the release of written reasons.
PART B: General Principles and Evidentiary Principles
[3] i. Presumption of Innocence
[4] Mr. Hau Duong is presumed to be innocent, unless and until Crown counsel has proven his guilt beyond a reasonable doubt. This presumption of innocence means that Mr. Duong started the trial with a clean slate. This presumption stays with him throughout the case, including my deliberations at the end of the trial. It is only defeated if and when Crown counsel has satisfied me beyond a reasonable doubt that Mr. Duong is guilty of the crime or crimes charged.
[5] ii. Burden of Proof
[6] Mr. Duong does not have to present evidence or prove anything in this case, in particular that he is innocent of the crimes charged. From start to finish, it is Crown counsel who must prove Mr. Duong guilty beyond a reasonable doubt. It is Crown counsel who must prove Mr. Duong’s guilt beyond a reasonable doubt, not Mr. Duong who must prove his innocence. I must find Mr. Duong not guilty of an offence or the offences charged unless Crown counsel satisfies me beyond a reasonable doubt that he is guilty of an offence or offences.
[7] iii. Reasonable doubt
[8] A reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not enough for me to believe that Mr. Duong is probably or likely guilty. In those circumstances I must find him not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilty is not proof of guilt beyond a reasonable doubt.
[9] I must also bear in mind, however, that is it nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
[10] If, at the end of this case, after considering all of the evidence, I am sure that Mr. Duong committed the offence or the offences charged, I will find him guilty of the offence or offences, since I would have been satisfied of his guilty beyond a reasonable doubt.
[11] If, at the end of this case, based on all of the evidence or the lack of evidence, I am not sure that Mr. Duong committed the offence or offences charged, I should find him not guilty.
[12] iv. The W.(D.) Framework
[13] I bear in mind the following principles in my assessment of the evidence in this case and in my Reasons. Firstly, W.(D.) relates the Crown’s burden of proof to the issue of credibility. Secondly, W.(D.) does not apply to individual facts or items of evidence but to the elements of the offences charged, which must be proved by the Crown beyond a reasonable doubt, and to the elements of defences raised by the evidence, which must be negatived by the Crown beyond a reasonable doubt. Thirdly, W.D. is not limited to a case where the accused testifies and denies the charge. Stated differently, conflicting evidence and resulting issues of credibility are not limited to cases where the accused has testified.
[14] Bearing in mind the W.(D.) framework, I approach the three step W.(D.) formula as follows:
i. Steps 1 and 2 must be addressed in the context of all of the evidence. Accordingly, I have undertaken steps 1 and 2 in the context of considering all of the conflicting evidence led at trial. With respect to the second step, I bear in mind that even if I do not believe or accept the testimony presented by the accused, I must acquit if, in the context of considering all of the conflicting evidence, I am unable to resolve the evidence and thus am left in a state of reasonable doubt. Finally, with respect to step 3, even if I am not left in doubt by the evidence of the accused I must ask 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.
[15] v. Conflicting Evidence
[16] It is clear from this case that there is obvious conflicting evidence. On the theory of the Crown, Mr. Duong exercised sole use, control and possession over his property and contents without outside force, duress and intervention. In so doing, the theory of the Crown is that Mr. Duong was in legal, factual, actual and intentional control, use and possession of this property, as well as the cannabis marihuana.
[17] On the theory of the Defence, Mr. Duong neither knew cannabis marihuana was located on his property, nor did he have any intention to unlawfully produce it, possess it or traffic in it. Further, on the theory of the Defence, Mr. Duong was forced, against his will, under duress, and through necessity, to cooperate with outsiders who he named Fred Williams and Bruno to cooperate with them as they undertook their illegal activities.
[18] It is important to bear in mind that I am not restricted to simply choosing whether I accept the evidence and theory of the prosecution or the evidence and theory of the defence. Rejection of one version does not equate to acceptance of the other. The stark alternative to either believing Crown evidence or Defence evidence excludes the legitimate possibility of being unable to resolve conflicting evidence and accordingly, being left in a state of reasonable doubt on whether the Crown has proved its case. The issue is not which of the two versions and theories is true, but rather, on the totality of the evidence, viewed as a whole, whether the Crown has proved the guilt of the accused beyond a reasonable doubt.
[19] I also bear in mind the following instruction with respect to the evidence of witnesses. The convincing force of the evidence is what is important, not the number of witnesses. I am to determine the weight of the testimony in the context of the entire evidence. I am not obliged to accept evidence merely because there is no contrary evidence. I may accept all of the evidence of any witness, part of that evidence or indeed, none of it. I may decide a witness is truthful or credible in one area but not in another.
PART C: SUMMARY OF CROWN EVIDENCE
[20] i. Admissions
[21] The Crown and the Defence read into court the following admissions – identity of the accused, jurisdiction of the court, nature of the drugs seized (cannabis marihuana), continuity of the drugs seized, quantity sufficient to amount to possession for the purposes of trafficking (311 kilograms) and value of the drugs.
[22] Nine certificates of analysis were filed as exhibit 1. The Browning firearm is a 233 calibre rifle and it was loaded when seized. The accused is the owner of a Firearms Possession and Acquisition licence (exhibit 2).
[23] Mr. Duong’s statement to the police is admitted as voluntary and it is acknowledged as having been made.
[24] ii. Detective Ron Marshall
[25] Detective Marshall received the telewarrant on October 12th. The accused’s property is described as Part lot 18 parcel 7352 south section Carling Township.
[26] At 9:11 a.m., on October 13, 2010, Officer Marshal attended with others and turned into the accused’s driveway. He saw a vehicle driving out. It was a black Ford pickup bearing Ontario license 882 6BJ. It was pulling a licenced dump trailer. The accused acknowledged to Officer Marshall that he owned the property. The accused was arrested, read his rights to counsel and cautioned. Officer Marshall made the following observations in and around the property:
i. In the wooden shed there were potting soil bags, plant fertilizer and dried marihuana on the shed’s floor. In the metal shipping container there were 5 large garbage bags of marihuana. On the floor of the container, laid out to dry, there was cannabis marihuana.
[27] Officer Marshall indicated that he had received knowledge of four males of Asian descent unloading the marihuana from canoes on the Shebeshekong river to the container. The dump trailer had a net or bungee cords covering firewood. Under the firewood, in a separate plywood container were 11 plastic bags with dried marihuana. In total, 31 bags each weighing 23 pounds were taken from the premises. The loaded Browning rifle was seized from the truck. There were two dogs in the back of the truck. It was covered by a cap. Officer Marshall left the premises at 12:07 p.m.
[28] Officer Marshall testified that he received a call in April of 2011 from a person in Donna Pledge’s office and that on April 5, 2011 he conducted an interview with one Fred Williams who indicated that he was responsible for the grow operation on Mr. Duong’s property. Mr. Williams provided a statement to Officer Marshall. He was arrested for cultivation and conspiracy to export marihuana, provided his rights to counsel and cautioned.
[29] Mr. Williams spoke with Duty Counsel and at 12:09 p.m. and he was placed in a cell until 4:37 p.m. Later, he spoke with Officer Betts and following an interview process, he was charged with attempt to obstruct justice by providing a false statement, and fabricating evidence.
[30] Under cross examination, Officer Marshall confirmed that the police broke or breached the padlock on the steel container. Officer Marshall confirmed that the cap on the truck contained windows.
[31] iii. Officer Perreault
[32] Officer Perreault was assigned as Exhibit Officer with respect to the search. He attended the property along with Officer Marshall and others. Mr. Duong confirmed to him that he owned the real estate property. Officer Perreault assisted in a search of the property and the various buildings and outbuildings. He testified that the truck cap was locked and that when he opened it, he observed two large dogs in the rear, along with the rifle located in a gun case. It had no trigger lock on it. There was no ammunition in the rifle chamber but there was ammunition in the magazine which itself was inside the rifle.
[33] Officer Perreault confirmed what Officer Marshall had stated as to the discovery of cannabis marihuana in various locations throughout the property. He also confirmed the number of total garbage bags of cannabis marihuana that were ultimately lodged at the O.P.P. Detachment in Parry Sound. When Officer Perreault described the dump trailer, he described the portion located under the firewood as a false bottom.
[34] In his evidence, Officer Perreault said that the driveway down to the cottage was approximately 500 metres in length. All of the buildings and containers were located at the end of the driveway at the waterfront.
[35] iv. Officer Jeremy McDonald
[36] Officer McDonald attended the premises with the other Officers. He took various photographs of the property, including the items and chattels located in and about the property. The photographs were filed as exhibits at the trial. Shown in these photographs were the interior of the unfinished cottage, harvesting tools, a pesticide sprayer, and hip waders. The inside of the house trailer located on the premises showed evidence of having been lived in. Officer McDonald testified that he saw no other persons in or about the property.
[37] v. Officer Betts
[38] Officer Betts conducted the video/audio interview of Mr. Duong. The accused arrived at the O.P.P. Detachment at 10:30 a.m. and arrangements were made for him to contact David Ryan, a local lawyer, at 11:12 a.m. as well as Mr. Thurston, another local lawyer at 11:27 a.m. Mr. Duong spoke to Mr. Thurston for approximately 10 minutes.
[39] He was lodged at court and then remanded back to the O.P.P Detachment at 2:37 p.m. He was finger printed at 3:47 p.m., returned to his jail cell at 4:02 p.m., and his audio/video interview of 42 minutes commenced at 4:30 p.m.
[40] A written synopsis of the interview was filed as exhibit 7 and the interview was played in court. The exhibit 7 synopsis is three pages, and it includes a sketch drawn by Mr. Duong. In the written synopsis phrases and statements are found as follows:
“...States he was there 3 days came last Sunday. Asked if he was there on Saturday, Said Yes. Told him I was told there was 4 people at your camp. Said No just me and the dogs. Only Me. Did not leave on Saturday and has been there since. Came up saturday morning. What were you going to do with all this stuff. This is my first time...How many plants were grown...a couple hundred. On his property, near the water. He planted 250 plants and cut them down. I chop them and put them there the weather is so good...could see plants from the front of his house. How much money do you think you could get for that. 10 grand 20 grand...used the soil from my own property. Bought fertilizer from Canadian Tire or WalMart. Had 2000 start up cost. Get plant from someone else and spliced plant and start them myself...asked if he had any questions? No. Talked about what would happen in court and bail hearing. What if I go there and just plead guilty...where were you going to bring this. If somebody wants it I will sell it.”
[41] Officer Betts testified that in April of 2011, Fred Williams JR came forward to make a statement at the Detachment. After Mr. Williams was charged with attempt to obstruct justice and fabricating evidence he pleaded guilty in May 2011 and was sentenced to time served together with 30 more days.
[42] Under cross examination Officer Betts confirmed that he interviewed Mr. Williams after Officer Marshall interviewed Mr. Williams. He confirmed that there was a break in his interview when he turned of the machine and Mr. Williams spoke to him. When the machine was turned back on Officer Marshall came into the interview room and heard the balance of the interview.
[43] Officer Betts denied that he told Mr. Williams that the penalty for cultivating this amount of marihuana would be greater than any time served on a fabrication or obstruct justice charge.
[44] vi. Fred Williams
[45] Mr. Williams resides in Walpole Island. He is Aboriginal and holds Indian status. He testified that he has no ties to the Parry Sound District. He testified that he was approached by a friend of his, Mr. Harold Pinnace who asked him to meet another person. He identified this person as the accused Harry Duong. Mr. Williams testified that he met with the accused three times and that on one occasion they had lunch together in Toronto. He testified that during the lunch meeting, Mr. Duong asked him whether he would plead guilty to the drug offences, in return for a money payment. Mr. Williams testified that he traveled up to the property on a Sunday with Mr. Duong’s brother Simon. He, Simon and Mr. Pinnace attended at the property in March 2011. He testified that he met with a lawyer in Toronto and a typed memo or declaration was prepared by which he would indicate his guilt with respect to the charges presently before the court.
[46] Mr. Williams testified that he returned to Parry Sound in April of 2011 and turned himself into the O.P.P. Detachment. He testified that despite what he initially told Officer Marshall, he was not responsible at all for the drugs located on Mr. Duong’s property nor connected with them in any way. He testified that he served time after he pleaded guilty to the attempt obstruct justice and fabricate evidence charges and that he was released from custody on May 24, 2011. Mr. Williams testified that he stayed at the Comfort Inn in Parry Sound between April 3rd and 5th, 2011 and that he was to be paid $25,000.00 for pleading guilty to the drug offences and that he received some money from Mr. Duong for travel and motel expenses. A Comfort Inn receipt was filed as exhibit 14.
[47] Mr. Williams testified that he felt Officer Marshall understood that he was making a false statement during the course of his audio/video interview. He testified that when he gave his second statement to Officer Betts, he was telling the truth. He testified that he thought that Mr. Duong’s lawyer may have been listening to the statement. He testified that he met Mr. Duong at the lawyer’s office in Toronto where the typed memorandum was prepared. He was alone with the lawyer when the statement was finalized. The statutory declaration signed by Mr. Williams on March 16, 2011 was filed as exhibit 16.
[48] Under cross examination Mr. Williams confirmed that Mr. Duong was not in the lawyer’s office when he signed the statement. He testified that in his first interview with Officer Marshall that the whole operation was his and that Mr. Duong was coerced to help. He indicated that he was to receive $25,000.00 not $15,000.00 to plead guilty to the drug offences. He confirmed that he had a criminal record for drinking and driving and for failure to comply with a recognizance and failure to attend court. The record is dated 1988, 1999 and 2003. Under re-examination Mr. Williams testified that he was provided $400.00 by Mr. Duong for travel and motel expenses. He acknowledged that he may have told police that the sum was $200.00. He testified that Mr. Duong’s wife brought the $400.00 to the restaurant.
PART D: SUMMARY OF DEFENCE EVIDENCE
[49] Mr. Duong was born on April 7, 1957 and he is a Canadian citizen. He worked in construction in the past and is presently in the renovation business. He has no Canadian criminal convictions.
[50] He bought his Carling Township property in 2007 and built a cottage there. It is not finished and it does not have hydro.
[51] He testified that he used the steel container to put solar panels on the top. He lives in his house trailer as his cottage is not finished. He uses his two canoes for fishing.
[52] Mr. Duong testified that he came to his property on October 9th at approximately 3:00-4:00 p.m. He was working inside the cottage when two people appeared. They had a knife and a gun. They came towards him and slapped him twice. They asked for a key to open his truck and the six wheeler.
[53] He testified that they tied him to a 2 x 6 wall inside his cottage with rope. He heard them turn his ATV and truck on. He testified that they went to his trailer and took his gun and that 30 minutes later they returned and asked for ammunition.
[54] He directed them to a cabinet in the trailer and they returned with the ammunition and ordered him to listen. They told him that his life and his family would be in danger and his cottage would be burned down in one night.
[55] He testified that they provided the following instructions and information to him:
i. He could not call the police.
ii. He was to listen to them.
iii. He must attend wherever they asked.
iv. They ordered him not to escape.
v. They had details of his information.
vi. He could not say anything to anyone.
[56] Mr. Duong testified that the two men stopped talking and untied him and ordered him back to his house trailer. They drove his truck back to the trailer to watch him as he was inside.
[57] He testified that at 10:00 p.m. that evening they asked him to drive to Sutton to a farm. They blindfolded his eyes, put him into a backseat and drove to a large warehouse. They tied him in the truck and left him there for 6 hours. The next morning they returned and he was still blindfolded.
[58] Mr. Duong testified that the truck was driven to a small lakeside restaurant and untied the blindfold. One person entered the restaurant for 30 minutes and when he returned they all drove back to Mr. Duong’s cottage.
[59] Upon returning, Mr. Duong was returned to his house trailer. He testified that at 8:00 or 9:00 the two men requested him to drive with them to Barrie. He was requested to turn right onto the road leading to Angus and the two men entered another place to meet with other people. He testified that the men brought a large bag of food and a water container and the three of them returned to the cottage. Mr. Duong testified that on the morning of October 11th the two men asked him to drive to Orillia. They were there until the afternoon. The three then returned to his cottage. He testified that on October 12th they did not drive away from the property.
[60] Mr. Duong testified that the men asked him to go out and cut wood. At 6:00 a.m. on October 13th they requested him to put wood on the top of his dump trailer. They watched as he moved the wood. Mr. Duong was preparing to leave the driveway and make a u-turn to return to the cottage when the police arrived. At this point, the two men disappeared.
[61] Mr. Duong testified that the two men had arrived at his place with their own canoes. He testified that they must have placed the cannabis marihuana in the steel container and in the other locations. He testified that there was no marihuana in any of these locations before October 9th.
[62] He testified that he didn’t know where the marihuana came from and that there was no marihuana growing on his property. He did not know that a loaded rifle was in the cap portion of his truck. He had been requested to put his dogs in the back of the truck every night.
[63] He testified that he gave the false statement of admission to the police because the two men had requested him to admit that the marihuana was grown on his property. Mr. Duong testified that he had not slept for 4 nights and that he was under extreme stress.
[64] He testified that felt a need to protect his family, his life and his cottage and that he had no choice but to give the video/audio statement to the police. He testified that the men told him that if anything went wrong he was not allowed to tell the police that the marihuana had been transported from another location to his property location. He believed the marihuana was transported to his place by canoes and not by road.
[65] Mr. Duong was questioned about his connection to Mr. Williams. He testified that he first met and saw Mr. Williams inside his cottage on October 9, 2009, clarifying the earlier date he may have given of October 10, 2009. He testified that Bruno and Mr. Williams were the two men that he referred to who had threatened him. He testified that he had heard Mr. Williams describe his cell number and that he telephoned him after his release. He received no response. He called again in January 2011 and someone answered. He tried to make an appointment to meet Mr. Williams for January 12, 2011 but no one showed up.
[66] He called again on February 6th and it was agreed that he would meet Mr. Williams at a supermarket in Chatham. He testified that he was still worried about his safety and wanted to meet Mr. Williams where other people would be present. He testified that Mr. Williams arrived and that he gave him two choices - either Mr. Williams turn himself in or Mr. Duong would call the police. Mr. Williams chose to surrender himself. He provided Mr. Williams with the name and telephone number of his lawyer.
[67] He testified that Mr. Williams wrote a cell number or phone number on the back of this blank card. Mr. Duong testified that he left the meeting on February 8th and next saw Mr. Williams in March 2011. He called Mr. Williams on March 10th or 11th and Mr. Williams told him that he had not turned himself in as he could not find a lawyer. He testified that Mr. Williams requested to attend with Mr. Duong at Mr. Duong’s lawyer’s office. They met at a small plaza near the lawyer’s office on March 15th and together they attended at Mr. Duong’s lawyer’s office. Mr. Williams met inside while Mr. Duong waited. Mr. Duong testified that he never saw Mr. Williams after that date until court in Parry Sound on March 12, 2012.
[68] Mr. Duong testified that he did not know Harold Pinnance. He denied that he tried to hire Mr. Williams through Mr. Pinnance to plead guilty in return for a money payment. He denied providing any motel fees or travel monies to Mr. Williams.
[69] Under cross examination Mr. Duong said that he could not drive away just before the police arrived because the two men were still nearby. He feared telling the police that they had been on his property. He reiterated that he had not slept for 4 nights and they he was under tremendous pressure. He was asked why he met with Mr. Williams in Chatham and he stated that the pressure on him had subsided and that he felt that he needed to take care of himself at this time. He confirmed the details in court were the first occasion that he had provided this story to a court or to persons in authority.
[70] He again confirmed that before he gave the audio/video statement, he spoke with two lawyers by telephone.
[71] Mr. Duong confirmed that when he was arrested in October 2011 on charges of attempt to obstruct justice and fabricate evidence, he advised the police that Fred Williams was responsible for the grow operation.
[72] Mr. Duong denied knowing that a loaded rifle was in the cap of his truck. He testified that the two men slept in his truck every night. He said that they permitted him to call family and friends in a normal matter to keep in contact. He testified that he did not dare to speak to friends or family in Cantonese as he feared for his safety.
[73] He confirmed that he arrived on his property on October 9th, 2011. He confirmed that he gave the statement to Officer Betts that was played and shown in court.
[74] He denied knowing Mr. Pinnance or the details of any U.S. extradition arrest of him. He testified that he noticed the false bottom on the trailer when he was loading it. He indicated that he saw no signs of fresh cuts on the plywood or the portions of the plywood shown in court. He said that some of the plywood was old and some was newly cut and he confirmed that the plywood portions shown in court were not freshly cut.
PART E: ANALYSIS AND CONCLUSION
i. Drug Charges
[75] In her legal submissions, counsel for the accused reiterated the importance of the W.(D.) Framework. She submitted that the accused was unshaken in cross examination, gave his evidence in a detailed fashion, and stood before the court as a person without a criminal record.
[76] She submitted that the amount of dried cannabis marihuana seized far exceeded the planting of 250 marihuana plants and that there was no independent evidence before the court indicating that the cannabis marihuana was grown on the accused’s property.
[77] Defence counsel also submitted that several details in Mr. Duong’s statement to the police on October 13, 2010 made little sense, including his statement that he would travel to Barrie to find a market for his dried marihuana.
[78] As to the Crown evidence, Defence counsel submitted that Mr. Williams was an unreliable witness who gave some internally inconsistent evidence with respect to:
i. Meeting with Mr. Duong’s lawyer.
ii. Presence of Mr. Duong’s lawyer on the phone or in the police interview room.
iii. The amount of the payment to be made by Mr. Duong ($25,000.00 or $15,000.00)
iv. The amount of money paid for travel and motel expenses.
v. The various opportunities that Mr. Williams had to “do the right thing” by indicating to the police that he was not responsible for the marihuana found on Mr. Duong’s property.
[79] Counsel submitted that when the interview tape was turned off Mr. Williams was weighing the more serious of two charges and the penalties for such charges.
[80] Counsel also submitted that the court ought to be slow to gauge the appearance of Mr. Duong, or the way that a person in his situation might react to stress and fear. Counsel submitted that the above factors raised a reasonable doubt on the evidence and ought to entitle Mr. Duong to an acquittal.
[81] I reiterate the importance of the W.(D.) Framework. Further, I bear in mind that I am not restricted to simply choosing whether I accept the evidence and theory of the Prosecution or the evidence and theory of the Defence. Rejection of one version does not equate to acceptance of the other. The stark alternative to the either believing Crown evidence or Defence evidence excludes the legitimate possibility of being unable to resolve conflicting evidence and accordingly, being left in a state of reasonable doubt on whether the Crown has proved its case.
[82] The evidence of the accused, carefully considered and weighed, in the context of all of the trial evidence, raises a considerable number of points that damage the accused’s credibility and severely called it into question. I point to the following:
i. The accused stated that he was threatened with his own rifle and the ammunition that he had stored in the cabinet in the house trailer. But he had already been approached earlier by two people one carrying a knife and one holding a gun. Yet he testified that he was not threatened until the rifle was retrieved and the ammunition was located in the house trailer cabinet.
ii. The accused drove his truck with the other two men to Sutton. He was taken to a large warehouse and blindfolded and he remained in the truck for 6 hours. The accused offered no evidence as to whether anything was taken in the truck to the warehouse or whether any materials were taken from the warehouse and returned to the truck. The accused was alone in the truck and blindfolded for 6 hours. He testified that he was tied in the truck but he gave no evidence as to what efforts, if any, he made to escape during the 6 hour period.
iii. On the second evening, at approximately 8:00 to 9:00 p.m. the accused drove the two men to Barrie and down a road that traveled toward Angus. The accused did not testify that he was blindfolded or tied on this trip. He testified that the two men went to another place to see other people and that they talked. He offered no information as to what efforts, if any, he utilized to escape or to seek help.
iv. On the following morning, the accused testified that he and the two men drove to Orillia, returning in the afternoon. But he did not offer or explain what happened in Orillia, where in Orillia the two men went to, and what they did when they arrived there.
v. The accused testified that just as the police arrived on the morning of October 13th the two men disappeared. The accused in no way indicated to the police that he had been a captive for four days nor did he seek to explain to them, when he was placed under arrest, that the responsibility for the marihuana operation rested with two men who had been on his property for 5 days and who had just left. The accused did not explain or offer to the court where the men went to when the police arrived.
vi. The cap of the truck had windows but the accused testified that he did not see his rifle in the back of the truck, under the cap.
vii. The accused testified that he was under great stress and fear when he gave his police statement on the day that he was arrested. Yet in his police statement, he was able to provide considerable detail with respect to the grow operation including drawing a sketch of where the marihuana plants were growing, the number of plants that he grew, the amount of his start up costs, the fact that he purchased potting soil and fertilizer at Canadian Tire and the fact that he could see the plants from a location in his cottage.
viii. The accused conceded that he was at liberty to telephone family and friends when he was a captive and that he was able to speak in Cantonese. Yet despite this freedom he asked no family member or friend to assist him in his predicament or to contact the police.
ix. The accused testified that an appointment was initially made with Mr. Williams on January 12, 2011 but that Mr. Williams did not show up. The accused offered no details as to where the meeting was to take place, or the details with respect to the planned meeting.
x. The accused testified that he gave an ultimatum to Mr. Williams in Chatham. But he didn’t explain why he travelled for more than 5 hours to deliver the ultimatum when he could have delivered the ultimatum to Mr. Williams when he spoke to him on the phone on February 6, 2011. Nor did he explain why Mr. Williams, who he acknowledged he still feared to a certain extent, would so readily turn himself in to the police when he had not done so between October of 2010 and February 2011. If Bruno and Mr. Williams had physically assaulted, threatened and forcibly confined Mr. Duong, as he testified, over a period of 5 days, why would Mr. Williams so readily, and without further threats or actions agree at the meeting in Chatham to turn himself in to the police.
xi. The accused testified that Mr. Williams delayed turning himself in because he couldn’t find a lawyer and that he needed the name of Mr. Duong’s lawyer. Yet the information before the court confirms that Mr. Williams met with another lawyer and made necessary arrangements to prepare the statutory declaration through that lawyers office.
xii. The accused testified that some of the ply wood was freshly cut and that he noticed this on the trailer, yet in the picture placed before the court he was unable to point out any signs of newly cut plywood.
xiii. Why would the accused locate a shipping container on his property when solar panels could be mounted to a shed, his cottage roof or to a mounting pole?
xiv. Mr. Duong detailed the movements of Bruno and Mr. Williams between October 9th and October 13th, but he did not explain how, or when, in this time frame, the two men harvested, transported and set out the plants for drying.
xv. Mr. Duong did not explain why he only expected Mr. Williams and not Bruno to plead guilty and he did not mention Bruno to the police when he was arrested a second time in October of 2011.
[83] Mr. Duong had many opportunities to go to the police, after his fear of Bruno and Mr. Williams subsided. Yet he chose to travel all the way to Chatham to speak briefly with Mr. Williams, face to face, to deliver his ultimatum.
[84] It is true that there were some inconsistencies or variations in Mr. Williams’ testimony. Mr. Williams expressed some confusion about the lawyer’s office or building in Toronto, the amount of cash Mr. Duong gave to him for expenses, and whether Mr. Duong’s lawyer was in the O.P.P. Detachment or listening by telephone. On the whole, I view these as minor inconsistencies. And in the witness stand, after seeing and hearing other evidence, Mr. Williams did clarify his evidence around these points.
[85] It is also true that he may have said he was to be paid $15,000.00 for pleading guilty. But he clarified later that the sum was $25,000.00 and the important point here is that the payment represents a substantial money amount for pleading guilty on behalf of another. On the whole, however, I am not able to conclude that these variations or inconsistencies seriously damage or erode Mr. Williams’ credibility, or call it into account.
[86] Mr. Williams served a period of pre-trial incarceration and a period of incarceration after he pleaded guilty to the offences contrary to s. 137 and s. 139(2) of the Criminal Code of Canada. He produced evidence to the court consistent with him travelling to Parry Sound, staying in a motel where he paid cash, and traveling to the police detachment to initially take the blame for the cannabis marihuana grow operation.
[87] There is no evidence before the court to suggest that Mr. Williams has or had a connection with the Carling Township property, other than the accused’s testimony that he was responsible for the grow operation. Mr. Williams resides at considerable distance from Carling Township and there is no evidence that he owned, rented or controlled property in Carling Township. There is no evidence establishing or pointing to where Mr. Williams and Bruno lived as they grew and watched over the cannabis marihuana plants.
[88] The evidence, viewed in its totality, is consistent with Mr. Duong owning and controlling his property and planting cannabis marihuana in the locations he sketched out for the police. I need not decide whether in other locations on either side of the river Mr. Duong also planted and grew additional cannabis marihuana.
[89] It strains credulity to suggest that Mr. Duong would not have attempted to seek help, escape, call for help or immediately or thereafter spoken to the police to advise them of the role played by Bruno and Mr. Williams in the grow operation. Accordingly, I am unable to accept Mr. Duong’s evidence and I discount most of it, except the statement which he gave to Officer Betts on October 13th, 2010.
[90] I bear in mind the W.(D.) Framework earlier set out in these reasons. Except for his October 2010 statement to Officer Betts, I do not accept or believe the testimony of the accused denying his involvement in the grow operation or his evidence that he was forced out of necessity and fear of Bruno and Fred Williams, to load the wood trailer. Nor do I accept that he did not know of the trailer’s hidden compartment and that he did not himself load cannabis marihuana in to this compartment or indeed place cannabis marihuana in the shed and the steel container. Mr. Duong was found alone, in sole occupation and use of his premises and in control of the marihuana located on his property. The evidence that Mr. Williams was in fact:
a. A principal in the grow operation
b. that he threatened Mr. Duong with a gun or a knife
c. that he forced Mr. Duong to take responsibility for the cannabis marihuana located on his property, out of fear for his family and his life and,
d. that he so readily thereafter, within a few short months, agreed to turn himself in to the police and accept full responsibility for his actions, is not consistent with the points of evidence that I have reviewed above. In the context within which I have examined and analyzed it, Mr. Duong’s evidence is not credible or believable. Nor am I left in any reasonable doubt by the evidence of the accused. On the basis of the evidence which I accept, including:
i. Mr. Williams’ trial evidence,
ii. His evidence of meetings with Mr. Duong in Toronto,
iii. The evidence surrounding the giving of his second statement to Officer Betts at the Parry Sound Detachment,
iv. The evidence that Mr. Duong was the sole owner and sole occupant found at his property on October 13, 2010 and in the process of driving away a dump trailer with a hidden compartment with dried cannabis marihuana,
v. That cannabis marihuana was also located in the accused’s shed and storage container and,
vi. Mr. Duong’s October 2010 statement to Officer Betts, I conclude that the Crown has proved the guilt of the accused beyond a reasonable doubt.
ii. Firearm Charges
[91] Mr. Duong was the owner of a Firearms Possession and Acquisition Licence. Exhibit 2 is a Firearm Registration Certificate for the Browning rifle found under his truck cap.
[92] The accused, however, was not in possession of an outdoors card. Although he testified about fishing, he provided few if any details about using the rifle for legitimate hunting purposes.
[93] Mr. Duong has been found guilty of the drug offences outlined in the Indictment filed with this court. He was also found in control and in possession of a Browning rifle in which there was a magazine containing live ammunition. There was no trigger lock on the rifle and the gun case within which the rifle was located was not locked.
[94] Accordingly, I conclude that the Crown has proved beyond a reasonable doubt the guilt of Mr. Duong with respect to count #6.
[95] As to count #5, I can come to no other conclusion on the evidence but that Mr. Duong had the Browning rifle in his possession for a purpose dangerous to the public peace. Mr. Duong has been found guilty of possession, unlawfully producing, and trafficking in a substantial amount of cannabis marihuana. The loaded Browning rifle was under the truck cap in the vicinity of hidden cannabis marihuana in the trailers compartment. Mr. Duong was involved in illegal drug activity and it is reasonable to conclude that he would require a loaded firearm readily available to defend himself in the context of this illegal and potentially highly dangerous activity. No other evidence was placed before the court indicating any legitimate reason for possession of the loaded Browning rifle in this fashion. Mr. Duong led no evidence to suggest the need for a rifle for legitimate protection purposes, in relation to his security of person, and his security of property either in Carling Township or in the Toronto area. Mr. Duong does not have an outdoors card.
[96] For these reasons, bearing in mind my findings with respect to the drug counts, and the conclusions which I have reached with respect to Mr. Duong’s credibility, I conclude that the Crown has proved the guilt of the accused beyond a reasonable doubt with respect to count #5.
[97] Accordingly I have endorsed the Indictment filed with the court as follows: [read endorsement]
Justice J.S. O’Neill
Released: March 16, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Hau Duong
REASONS FOR JUDGMENT
J.S. O’NEILL
Released: March 16, 2012