THE APPLICATION

[1] The applicants Mu Cai Bao (“Bao”) and Kevin Hui (“Hui”) apply for an order in the nature of certiorari requesting that their committal to stand trial made on November 25, 2010 by The Honourable Justice J.F. Kenkel be set aside and that they be discharged in relation to the charge of production of Ephedrine.

[2] The grounds of the application are as follows:

The learned preliminary hearing judge exceeded his jurisdiction in finding that the offence of production of Ephedrine is an indictable offence in respect of the same transaction as the offences of selling or providing Ephedrine, possession of Ephedrine for the purpose of production and transporting Ephedrine thereby ordering the applicants to stand trial; and
The learned preliminary hearing judge exceeded his jurisdiction in finding that there was evidence upon which a properly instructed jury could convict the applicants of production of Ephedrine thereby committing them to stand trial.

THE PRELIMINARY HEARING

[3] Mr. Bao and Mr. Hui along with their co-accused Mr. Wu, Mr. Kong and Mr. Law were charged with offences related to the production, possession and trafficking of controlled substances. A preliminary hearing before Kenkel J. was held on July 14, 16, 22, 23, August 25, September 10, October 21, November 5 and 25, 2010.

[4] Although a number of Informations were before the court, the Crown proceeded only on some counts that were contained on two separate Informations. Mr. Bao and Mr. Hui and their co-defendants consented to a single proceeding in respect of all counts on both Informations.

[5] Mr. Bao and Mr. Hui faced the following three counts in Information 09-08189, all of which they stood co-accused with Mr. Wu, Mr. Kong, Mr. Law:

Count 2

On or about the 28^th of June in the year 2009 at the City of Toronto in the Province of Ontario and elsewhere in the province of Ontario did unlawfully sell or provide a Class A precursor listed in Schedule VI on the Controlled Drugs and Substances Act, to wit: ephedrine, to Sun Wu YEH, contrary to 6(1)(c) of the Precursor Control Regulations, and did thereby commit an offence contrary to section 46 of the Controlled Drugs and Substances Act.

Count 3

On or about the 28^th day of June in the year 2009 at the City of Vaughan in the Regional Municipality of York and elsewhere in the province of Ontario did unlawfully possess a Class A precursor listed in Schedule VI of the Controlled Drugs and Substances Act, to wit: ephedrine, for the purpose of production, contrary to section 6(2) of the Precursor Control Regulations, and did thereby commit an offence contrary to section 46 of the Controlled Drugs and Substances Act.

Count 4

On or about the 28^th day of June in the year 2009 at the City of Vaughan in the Regional Municipality of York and elsewhere in the province of Ontario did unlawfully transport a Class A precursor listed in Schedule VI of the Controlled Drugs and Substances Act, to wit: ephedrine, contrary to section 9(1) of the Precursor Control Regulations, and did thereby commit an offence contrary to section 46 of the Controlled Drugs and Substances Act.

[6] At the preliminary hearing, the Crown submitted that the evidence proved that all five accused men were acting jointly to produce and distribute MDMA/Ecstasy and Ephedrine.

[7] During the course of submissions at the conclusion of the preliminary hearing, the Crown’s position with respect to committal on certain counts changed in response in part to points made by defence counsel. After oral submissions, the court adjourned and then later called upon the parties to clarify their arguments by delivering written submissions. That process brought further focus on the Crown’s part such that for three of the four accused, the Crown sought committal on only one count.[^1]

[8] Because it was too late for the Crown to seek an amendment to count three of the CDSA Information No. 09-8189, committal on a new count of Ephedrine production could only be based on s. 548(1)(a) of the Criminal Code which permitted a justice presiding at a preliminary hearing to order the accused to stand trial on “any other indictable offence in respect of the same transaction”.

[9] The Crown submitted that, pursuant to s. 548(1)(a) of the Criminal Code, Mr. Bao, Mr. Hui and their co-accused ought to be committed to stand trial on the following added count of production of Ephedrine which, according to the Crown was an offence arising out of the same transaction:

Mu Cai Bao, Kevin Hui, Zhi Bin Wu, Wai Loon Kong and Denny Law between the 16^th day of April, 2009 and the 28^th day of June, in the year 2009, at the City of Vaughan, in the Regional Municipality of York and elsewhere in the Province of Ontario did unlawfully produce a Class A precursor listed in Schedule VI of the Controlled Drugs and Substances Act, to wit: ephedrine, contrary to section 6(2) of the Precursor Control Regulations, and did thereby commit an offence contrary to section 46 of the Controlled Drugs and Substances Act.[^2]

[10] All defence counsel submitted that the proposed new count (the added count) did not arise from the same transaction as the original charges. Each counsel further submitted that the Crown had not called sufficient evidence to justify committal on the count or counts their clients faced. Mr. Kong conceded committal on one count.

[11] Kenkel J. reviewed the test for committal, considered the test regarding an offence arising from the same transaction pursuant to s. 548(1)(a) of the Criminal Code and also considered whether the Crown had proved that there was sufficient evidence on the tests referred to in his reasons to justify committal of any of the parties on the new count. He also considered whether the Crown had proved that there was sufficient evidence to commit Mr. Kong to stand trial on the further counts which he faced.

[12] Ultimately, Kenkel J. ruled that the new added charge was closely interwoven and connected with the original charges such that it met the “same transaction” requirement under s. 548. He went on to further conclude that there was sufficient evidence on which a trier of fact could reasonably find that both Mr. Bao and Mr. Hui were parties to the production of Ephedrine. He made similar findings in respect of Mr. Wu and Mr. Kong.[^3]

[13] In conclusion, Kenkel J. ruled that all accused would be discharged on counts 1, 2 and 3 of Information 09-8189 at the request of the Crown. All accused would be committed to stand trial on one count arising out of the same transaction alleging that they were parties to Ephedrine production contrary to s. 46 of the CDSA. In addition, Mr. Kong was committed to stand trial on other counts of the CDSA Information 09-8189 and he was committed to stand trial on all counts in the conspiracy Information 09-8188.[^4]

OVERVIEW

[14] A concise overview can be found in the applicants’ factum at paragraph 7 as follows:

In the spring of 2009, Detective Constable Lawrence Lee of the Intelligence Bureau of York Regional Police Service (YRP) commenced an investigation into the activities of Kong. The investigation was surveillance-driven and members of YRP conducted observations on numerous targets on various dates between April 16^th and June 28^th 2009. In the latter stages of the investigation, observations focused on a warehouse located at 180 Winges Road, Unit #22, Vaughan (180 Winges), which the investigators suspected to be a drug lab. The Applicants were both observed meeting with their co-defendants and attending 180 Winges on numerous occasions. On June 28^th 2009, activity at 180 Winges suggested that the suspected drug lab was being dismantled. Numerous individuals were observed removing items from the unit into two separate rental vans at different times. In particular, a heavy item was placed in a U-Haul or Budget rental van which was followed to the Alton Towers Plaza in Scarborough. Bao and Wu then boarded the U-Haul rental van and drove it to 4080 Sheppard Avenue East where they unloaded a single heavy item. A Budget cube van was later observed backed up to the bay door of 180 Winges. It too was followed as it travelled away. The Budget cube van was stopped and subsequently searched. Following these observations, all accused were arrested and warrants to search were executed on various locations including 180 Winges and 4080 Sheppard Avenue. Items consistent with a “dismantled lab” were located at 180 Winges. Four reaction vessels were located at 4080 Sheppard Avenue, two of which contained ephedrine weighing 119.1 kilograms and two of which contained I-PAC, a chemical used in the production of ephedrine. Chemicals were located in the Budget cube van, although, with the exception of a precursor to MDMA called MDP-2-P, no controlled substances were found.

[15] Further, Mr. Bao and Mr. Hui in their factum at paragraphs 8 to 22 reviewed the evidence on the preliminary hearing.

[16] Likewise, the circumstances of the case are outlined in the respondent’s factum at paragraphs 3 to 21.

[17] The police investigation consisted mostly of surveillance. The two primary targets were Mr. Kong and Mr. Law. The surveillance related to a number of locations such as 180 Winges Road, Alton Towers Plaza, 4080 Sheppard Avenue East, T & T Supermarket and a number of residences. The investigation also related to two rental vehicles, a U-Haul van and Budget van. The surveillance involved the applicants Bao and Hui along with a number of their co-accused.

[18] The circumstances of the case set out in the respondent’s factum at paragraphs 3 to 21 are as follows.

[3] The applicants’ co-accused, Wai Loon Kong met with Denny Law on April 16, 2009, May 12, 2009, May 15 and 26, 2009, June 8, 9, 10, 11, 12, 22 and 23, 2009.

[4] On May 12, 2009, Mr. Kong was at Mr. Law’s residence at 16 Houndsbrook Crescent. After Mr. Kong left, Mr. Law drove a Budget Truck to a plaza at 8390 Kennedy Road and dropped off a wooden crate in a lot. The crate contained scented paper which gave rise to an inference that the parties were trying to mask the smell of whatever was contained in the container. In addition, a rental vehicle was used on June 24, 2009 and June 28, 2009, suggesting a pattern of conduct identified in the opinion of Sgt. Doug Culver as a means to make the identification of the driver and passengers even more difficult.

[5] On June 8, 2009, Mr. Kong and Mr. Law attended at A-K Petro Chem at 316 Edgeley Blvd. On June 29, 2009, a search warrant was executed at Mr. Law’s residence at 16 Houndsbrook Crescent, and among the items located were receipts from A & K Finechem Inc. at 316 Edgeley Blvd. None of the receipts were dated for June 8, 2009, however, the items set out in the receipts included Acetone, Hydrochloric Acid, Methylene Chloride or Dichloromethane, Methanol and Sodium Borohydride. A search of Mr. Kong’s residence at 243 Mingay Avenue on June 29, 2009, revealed a number of documents that listed various chemicals. Some of the items and chemicals listed were Silica Gel, Sodium Borohydride, Anhydrous Methanol, Methaylamine Anhydrous Cylinder, Acetone, Hydrochloric Acid. One of the pages in these documents was a hand written list of documents with the words “AK Petrochem.com”. Hydrochloric Acid, Methaylamine Anhydrous, Methylene Chloride, Dicholomethane, Silica Gel and Sodium borohydride were found in the Budge Van observed leaving 180 Winges Road, Unit 22 on June 28, 2009. The Opinion Evidence of Health Canada scientist Linda Chee-Chue identified the chemicals found in the Budget Van seen leaving 180 Winges Road as being consistent with the production of Ephedrine.

[6] A map to 180 Winges Road was found in Mr. Kong’s residence of 243 Mingay Avenue.

[7] The Opinion Evidence of Linda Chee-Chue identified Ephedrine as being the most likely item being produced at 180 Winges Road.

[8] Amongst the items found at 180 Winges Road, Unit 22, were a mag light flashlight, Survive Airbrand air filtration mask, compact infrared thermometers, outdoor cookers, turbo air industrial fan, foodsaver vacuum sealer, and Flexmaster 100 device. Amongst the documents found at Mr. Kong’s residences were pages that make reference to Air Cleaning System, Packing machine and Bags, Mask & Filters and Buckets.

[9] Sgt. Doug Culver confirmed that the items found at 180 Winges Road were consistent with the basic equipment frequently encountered at MDMA production sites. It was inferred that while 180 Winges Road was most recently used for the production of ephedrine, it could also have been used for the production of 14.223 kgs of MDMA that was found at 555 Edwards Street, in respect of which Denny Law was implicated. This inference was corroborated by the traces of MDMA found in the garbage that emanated from 180 Winges Road and that was thrown in the dumpster by Mr. Denny Law and Mr. Kevin Hui on June 24, 2009.

[10] The search of Denny Law’s address of 16 Houndsbrook Crescent revealed a large amount of MDMA, information and items consistent with trafficking and production of MDMA and precursors for the production of MDMA.

Mu Cai Bao

[11] Mu Cai Bao met with Mr. Kong and/or Mr. Law on June 23, 26 and 28, 2009.

[12] On June 23, 2009, Mr. Bao placed items in a vehicle with Mr. Law and Mr. Wu. Home Depot buckets, similar to the ones placed in the vehicle were found in the Budget Van on June 28, 2009. The other items like the scale and valve could be used in the production of ephedrine and a scale was found at 180 Winges Road, Unit 22.

[13] Mr. Bao attended at 180 Winges Road, Unit 22, on June 24, 26 and 28, 2009. Bao’s vehicle was seen parked at 180 Winges Road on June 25, 2009, although he was not seen.

[14] On June 28, 2009, a U-Haul rental van attended 180 Winges Road. Something heavy was lifted into the rear of the van. The U-Haul was followed to Alton Towers plaza. A Budget rental truck arrived. Mr. Bao and Mr. Wu then boarded the U-Haul van and drove it to 4080 Sheppard Avenue and unloaded a heavy item inside.

[15] On June 28, 2009, Mr. Bao and Mr. Wu met Mr. Kong along with other individuals at 88 Pho Restaurant.

[16] On June 29, 2009 at 4:00 a.m. a search warrant was executed at 4080 Sheppard Avenue and 4 reaction vessels were located. Two of them contained ephedrine with a total weight of 119.1 kilograms and two of them contained I-PAC which is a compound used in the production of ephedrine.

[17] Mr. Bao was at 180 Winges Road on at least three occasions, on June 23, 2009. He was helping Mr. Law place items in a vehicle that could be used in the production of ephedrine, and was moving something on June 28, 2009, using a rental vehicle, just like other movements of chemicals or items from this site.

Kevin Hui

[18] Kevin Hui met with Mr. Kong and/or Mr. Law on June 11, 12, 24, 25 and 26, 2009. The Toyota Highlander with licence plate ATDR618 driven by Mr. Hui on other occasions was seen parked outside 40 Bianca on the same day that Mr. Kong and Mr. Law were seen at that residence.

[19] Kevin Hui attended at 180 Winges Road, on June 24, 25 and 26, 2009.

[20] On June 24, 2009, a Discount Rental van was observed leaving 180 Winges Road, Unit 22 and travelling to a dumpster at the rear of T & T Supermarket at Warden and Steeles. The driver of the van was Mr. Law and the passenger was Mr. Hui. Both individuals were seen throwing approximately 10 garbage bags into the dumpster. A search of the dumpster by police officers revealed that amongst the items found were rags, paper towels and measuring cup that test positive for MDMA (ecstasy). In addition packaging for a mag light flashlight, Survive Airbrand air filtration mask, compact infrared thermometers, outdoor cookers, turbo air industrial fan, foodsaver vacuum sealer, and Flexmaster 100 device were found. Items matching this packaging were found at 180 Winges Road on June 28, 2009.

[21] Mr. Hui met one or both of the co-accused with the strongest ties to 180 Winges Road a number of times in the same month and attended at 180 Winges Road, three days in a row and worked with Mr. Law in disposing of packaging of materials from 180 Winges Road, a site in the opinion of the experts, that was used for the production of ephedrine.

THE RULING ON COMMITTAL

[19] Kenkel J. held that it was “too late for the Crown to seek to amend count 3…particularly where the change requested charges a different offence”. Kenkel J. further held that committal on a new count could only be based on s. 548(1)(a) “which permits a justice presiding at a preliminary hearing to order the accused to stand trial on ‘any other indictable offence’ in respect of the same transaction”.[^5]

[20] Kenkel J. considered the evidence and in so doing also stated the test for committal in the context of circumstantial evidence.[^6]

[21] He explained the scope of the same transaction rule as set out in R. v. Goldstein[^7] and gave the following rationale for finding that the charge upon which the applicants were committed was a “connected occurrence”[^8]. At paragraph 13, he found the following:

Considering all the evidence I find that the new charge is a connected occurrence that relates directly to the original offences charged. The new charge alleges that the four accused are party to the production of the same ephedrine that the original counts alleged they sold, transported and possessed for the purpose of trafficking. While production is a different offence, the focus of the analysis is on the transaction. “Goldstein makes it clear that, for the purposes of s. 548(1)(a), the examination of the evidence should not focus on the offence charged, but rather on the transaction – that series of connected occurrences that relate to the offence charged. The “other offence” contemplated by s. 548(1)(a) must be a component part of the series of connected occurrences or events that relate to the offence charged…”. R. v. Panzevecchia [1979] O.J. No. 1454 (C.A.) at para. 11. I find that the new proposed charge is closely interwoven and connected with the original charges such that it meets the “same transaction” requirements under s. 548.

[22] In finding that there was sufficient evidence to commit Mr. Bao to stand trial on the added count, Kenkel J. held:

On June 28^th a U Haul van went to 180 Winges Road and something heavy was lifted into the van. That van was followed to Alton Towers where Mr. Bao and Mr. Wu got into the van. Mr. Bao then drove the van to 4080 Sheppard Avenue and they unloaded a heavy item. At 4 am on June 29^th a search warrant was executed at 4080 Sheppard Avenue and police seized 4 chemical reaction vessels. Two of the vessels contained ephedrine with a total weight of 119.1 [kilo]grams. The other two vessels contained a compound used in the production of ephedrine.
There’s ample evidence from which a trier of fact could reasonably infer that the unit at 180 Winges Road was a clandestine drug laboratory used to produce Ephedrine and MDMA. Given the value of the products and the illegal nature of the operation, it would be logical to infer that access to such an operation is restricted to those few persons intimately involved with the drug production operation. That inference is supported in this case by the opinion of Detective Sgt. Culver.
Considering their association with Mr. Kong and Mr. Law, their multiple attendances at the Winges Road drug lab, and their participation in the transport of items from the Winges Road location which a trier of fact could reasonably infer contained ephedrine and/or a related compound, I find that a trier of fact could reasonably find that both Mr. Bao and Mr. Wu were parties to the production of ephedrine as alleged.[^9]

[23] In finding that there was sufficient evidence to commit Mr. Hui to stand trial on the added count, Kenkel J. held:

He’s seen at the 180 Winges Road drug lab on three consecutive days. It’s highly unlikely that anyone not directly involved in the production and distribution of drugs would be permitted access to that location. Surveillance evidence also links Mr. Hui and Mr. Law and Mr. Kong, two parties central to the drug production at Winges Road.
Mr. Hui was present in a rental van driven by Mr. Law that left the 180 Winges Road location. He later was observed throwing 10 garbage bags into a dumpster at another location. Among that garbage discarded by Mr. Hui was packaging for items later found inside Winges Road including packaging for an air filtration mask, compact infrared thermometers, outdoor cookers, a turbo air industrial fan and a foodsaver vacuum sealer. The police also found in that garbage disposed of by Mr. Hui and Mr. Law a measuring cup that later tested positive for MDMA.
From his presence at Winges Road and his clandestine disposal of items from that location it would be reasonable for a trier of fact to infer that Mr. Hui was actively assisting the drug production at Winges Road.
I find that there’s sufficient evidence upon which a trier of fact could reasonably infer that Mr. Hui was a party to the drug production at 180 Winges Road.[^10]

ISSUES

[24] On this application there are two issues:

a. Did the learned preliminary hearing judge exceed his jurisdiction in committing the applicants to stand trial on the added count pursuant to s. 548(1)(a) of the Criminal Code? and

b. Did the learned preliminary hearing judge exceed his jurisdiction in finding that there was some evidence upon which a reasonable jury properly instructed could convict the applicants on the added count?

POSITION OF THE PARTIES

Position of the Applicants Bao and Hui

[25] The applicants Bao and Hui submit that the preliminary hearing judge exceeded his jurisdiction in respect of both issues. Regarding s. 548(1)(a) of the Criminal Code, it is asserted that the learned preliminary hearing judge fell into jurisdictional error in finding that the added count was in respect of the same transaction as Count 3. Count 3 is a post-production charge in the sense that the substance must exist before the act giving rise to the charge can take place. One cannot possess an item unless that item exists. It is submitted that Count 3, a post-production charge, cannot be in respect of the same transaction as the added count, a production charge, as the delict is so fundamentally different.

[26] Mr. Bao and Mr. Hui further submit that the offence and the added charge span over two months whereas Count 3 alleges an offence on or about June 28, 2009. The timeframes are so divergent in this case being insufficient to amount to a same transaction for the purpose of s. 548(1)(a). There is no evidence that Ephedrine was produced on June 28, 2009 per the timeframe in Count 3 as the alleged production facility at 180 Winges was inactive.

[27] Further, Mr. Bao and Mr. Hui submit that the added charge is neither a component part of the offence charged, nor is it closely interwoven with the offence charged. It is submitted that a committal on the added charge was simply not permissible under s. 548(1)(a).

[28] In respect of the second issue, they submit that there was the absence of any critical connection between the Ephedrine and 180 Winges and that the expert opinion evidence of Linda Chee-Chue cannot stand. It is submitted that there was no evidence that the Ephedrine seized from 4080 Sheppard Avenue came from 180 Winges. Thus, there was no evidentiary basis for Ms. Chee-Chue’s opinion and the preliminary hearing judge erred in attaching any weight to it.

[29] It is further submitted that there is no evidence that any of the four reaction vessels located at 4080 Sheppard Avenue were delivered there on June 28, 2009 by Mr. Bao and Mr. Hui. In turn, there was no evidence that the reaction vessels came from 180 Winges. Without the critical link between the four reaction vessels at 4080 Sheppard Avenue and 180 Winges, there was no evidence capable of supporting a reasonable inference that Mr. Bao and Mr. Hui were any way involved in the production of Ephedrine. It is submitted that the committal to stand trial on the added count should be quashed and that the Mr. Bao and Mr. Hui should be accordingly discharged.

Position of the Crown

[30] The Crown submits that the preliminary hearing judge correctly applied the law in regard to the “same transaction” rule when reviewing the conduct of the applicants Bao and Hui and their co-accused. The circumstances of production of Ephedrine and/or MDMA (ecstasy) were evidenced by a series of “closely connected” and “interwoven occurrences” that lead to the original charges before the preliminary hearing judge. In considering the close proximity in time, place and action of the applicants and their co-accused Kong, Law and Wu, the preliminary hearing judge operated well within the jurisdiction of the court in committing them on the new charge.

[31] The Crown submits that certiorari is available only to cure jurisdictional errors. Absent that, rulings regarding sufficiency of evidence, limited weighing up of circumstantial evidence and factual findings are not jurisdictional in nature and are therefore not subject to judicial review. The Crown submits that this Application merely reargues the position of Mr. Bao and Mr. Hui before the preliminary hearing judge. That is not the function of judicial review. The preliminary hearing judge took a different view of the evidence as was his prerogative. His conclusions were reasonable, supported by the record and not subject to review. He stated the test for committal correctly in the context of circumstantial evidence. He explained the scope of the same transaction rule as set out in R. v. Goldstein. In determining whether there was sufficient evidence to commit, he carefully reviewed the evidence in his ruling that had been tendered against the applicants.

[32] The Crown submits that the preliminary hearing judge correctly stated the law and applied it to the facts in a proper manner (see paragraphs 12 and 13 of the ruling). The preliminary hearing judge was correct in his assessment of the facts. There was sufficient evidence adduced at the preliminary hearing to support a committal for trial. The Crown submits that the remedy of certiorari should not be granted to these applicants and accordingly, the application should be dismissed.

ANALYSIS

The Test for Committal

[33] In order to commit an accused for trial on a charge, a preliminary hearing judge must find evidence on all of the essential elements of the offence, which, if believed by a properly instructed jury, could result in conviction. The preliminary hearing judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. However, the preliminary hearing judge may not speculate in determining the sufficiency of the evidence.[^11]

[34] Under s. 548(1) of the Criminal Code, the question to be asked by a preliminary hearing judge is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely:

Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.[^12]

[35] Under this test, the preliminary hearing judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. Shephard at p. 1080.[^13]

[36] In his ruling, Kenkel J. at para. 7 properly recites the test for committal as follows:

The general test for committal was set out by Supreme Court of Canada in R. v. Shephard 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067. Here the Crown’s case against all five accuseds rests on circumstantial evidence. At a preliminary hearing, circumstantial evidence must be assessed according to the test set out in R. v. Arcuri 2001 SCC 54, [2001] S.C.J. No. 52.

[37] In R. v. Arcuri, at para. 23McLachlin C.J., in discussing the role of the preliminary hearing judge when the Crown relies on circumstantial evidence on one of more elements of the offence charged, held:

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: se Watt’s Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of any eyewitness to a material fact. It is any fact from the existence of which the trier of fact my infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp.641-42 (“[c]ircumstantial evidence…may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[38] Kenkel J. was well aware of the principles set out in R. v. Shephard and R. v. Arcuri regarding the test for committal and the role of the preliminary hearing judge engaged in the assessment of circumstantial evidence. Upon review of his Ruling, I find that Kenkel J. made no error in respect of citing and applying to the facts the appropriate test for committal.

The “Same Transaction” Rule-Section 548(1)(a) of the Criminal Code

[39] Section 548(1)(a) of the Criminal Code provides:

548.(1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused to trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial.

[40] In his Ruling at paras. 8 through to 13 inclusive, Kenkel J. considered the question of whether the new or added count was an offence arising out of the same transaction.

[41] At para. 8, Kenkel J. sets out the new count which speaks to the production of Ephedrine between April 16, 2009 and June 28, 2009.

[42] At para. 8, he reviewed the original CDSA information number 09-8189 counts 2, 3 and 4 where the applicants and other parties were charged with the sale of Ephedrine, possession of Ephedrine for the purposes of trafficking and transportation of Ephedrine.

[43] At para. 10, Kenkel J. cited the Ontario Court of Appeal decision in R. v. Goldstein [1988] O.J. No. 549 (C.A.), leave refused, [1988] S.C.C.A. No. 286 wherein the court explained the scope of the “same transaction” requirement. Kenkel J. held:

The words “the same transaction”, in my opinion mean the series of connected acts extending over a period of time which, the Crown alleges, prove the commission of the offence charged in the information. The participation of the accused in this series of connected acts or activity may be sufficient to permit the justice to put the accused on trial for the offence charged, or it may not. In addition, it may be sufficient to permit the justice to put the accused on trial for some other indictable offence. If it is, the other offence will, of necessity, be closely interwoven with or related to the offence charged in the information.

[44] Kenkel J. went on at para. 11 to state that a connection in time and location is not sufficient to engage s. 548. See: R. v. Stewart [1988] O.J. No. 1699 (C.A.).

[45] The law governing what amounts to “any other indictable offence in respect of the same transaction” is well established in appellate and superior court authority:

…the participation of the accused in this series of connected acts or activity…may be sufficient to permit the justice to put the accused on trial for some other indictable offence. If it is, the other offence will, of necessity, be closely interwoven with or related to the offence charged in the information.[^14]

Goldstein makes it clear that for the purposes of s. 548(1)(a), the examination of the evidence should not focus on the offence charged, but rather on the transaction – that series of connected occurrences that relate to the offence charged. The “other offence” contemplated by s. 548(1)(a) must be a component part of the series of connected occurrences or events that relate to the offence charged…[^15]

[14] “Transaction” as contained in s. 548(1)(a) and (b) of the Criminal Code is defined as “a series of connected acts extending over a period of time”. An offence revealed by the evidence respecting the same transaction as an offence with which the accused is charged at a preliminary inquiry need not be an included offence.

[15] The participation of an accused in a series of connected acts or activities may be sufficient to permit the justice to put the accused on trial for the offence charged or some other indictable offence revealed by the evidence of these connected acts or activities. If it is the latter, the other offence will, of necessity, be closely interwoven with or related to the offence charged in the information.[^16]

[46] The court is not bound to commit on an offence that is an included offence or even one that shares the same legal elements. It is to be an offence founded upon the same series of events or occurrences that are bound together in time and space and action.

[47] At para. 12 of his Ruling, Kenkel J. stated that the theory of the Crown in this case was that all four accused were acting in concert to produce, transport and traffic in Ephedrine and/or MDMA. The original charges were dated June 28, 2009 to reflect the date when warrants were executed and arrests began, “but the Crown’s case includes evidence from the investigation that led up to those events”.

[48] Kenkel J. considered the totality of the evidence and upon doing so found that the new charge or added charge was a connected occurrence that related directly to the original offences charged. At para. 13, he correctly held that the new charge alleged that the four accused which included Mr. Bao and Mr. Hui were party to the production of the same Ephedrine that the original counts alleged they sold, transported and possessed for the purpose of trafficking. While Kenkel J. acknowledged that production is a different offence, the focus of the analysis was on the transaction – that series of connected occurrences that relate to the offence charged. He correctly considered and applied the principles in Goldstein and Panzevecchia at para. 11. Kenkel J. concluded “I find that the new proposed charge is closely interwoven and connected with the original charges such that it meets the ‘same transaction’ requirement under s. 548.”

[49] Present before Kenkel J. as part of the Crown’s case was evidence of closely connected events that led from the production site to the dismantling and disposal of production paraphernalia and the storing of certain products consistent with evidencing the process of production of Ephedrine and/or MDMA (Ecstasy).

[50] I find the preliminary hearing judge correctly stated the law and applied it to the facts in a proper manner as evidenced by his reasons at paras. 12 and 13 of his Ruling. He did not confine his analysis only to the events which took place on June 28, 2009. He was entitled to consider all the evidence regarding the added charge and properly concluded that it was a connected occurrence that related directly to the original offences charged. The focus of his analysis was on the transaction. It was the same Ephedrine which was being sold, transported and possessed for the purposes of trafficking. He correctly found that the new proposed charge was closely interwoven and connected with the original charges such that it met the “same transaction” requirement under s. 548. In so doing, he correctly stated the law and applied it to the facts in a proper manner. Insofar as the first issue is concerned, I find the preliminary hearing judge did not exceed his jurisdiction in committing Mr. Bao and Mr. Hui to stand trial on the added count pursuant to s. 548(1)(a) of the Criminal Code.

Sufficiency of Evidence

[51] The preliminary hearing judge went on to consider whether there was sufficient evidence on the tests he referred to in his Ruling to justify committal of any of the parties on the new count (added count). He was fully aware of the question before him as evidenced by his reasons. He carefully considered the evidence before him as it related to Mr. Bao, Mr. Wu, Mr. Hui, Mr. Kong and Mr. Law.

[52] At paras. 15 to 22 of his reasons, Kenkel J. considered the evidence regarding Mr. Bao and Mr. Wu. As for Mr. Bao and Mr. Wu, the Crown sought committal on only the one new charge arising out of the same transaction as the original charges (counts 2, 3 and 4, sale, possession for the purpose of production and transportation of Ephedrine). The new count alleged that both Mr. Bao and Mr. Wu with others were parties to Ephedrine production.

[53] Kenkel J. proceeded then to review the evidence involving Mr. Bao and Mr. Wu and their meetings on multiple occasions with Mr. Kong and/or Mr. Law. Mr. Bao was observed meeting with Mr. Kong and/or Mr. Law on June 23, 26 and 28, 2009.[^17] Mr. Wu and Mr. Bao were both observed attending 180 Winges Road, Unit 22. Mr. Bao was observed at that location on June 24, 26 and 28, 2009. His car was observed parked there on June 25, 2009.[^18]

[54] Kenkel J. went on to find that on June 23, Mr. Bao assisted Mr. Law and Mr. Wu in placing Home Depot buckets and other items into a vehicle. Similar buckets were found in a rental van that attended Winges Road on June 28. Other items included a scale and a valve.[^19]

[55] At para. 20, he went on to find:

On June 28^th a U Haul van went to 180 Winges Road and something heavy was lifted into the van. That van was followed to Alton Towers where Mr. Bao and Mr. Wu got into the van. Mr. Bao then drove the van to 4080 Sheppard Avenue and they unloaded a heavy item. At 4 am on June 29^th a search warrant was executed at 4080 Sheppard Avenue and police seized 4 chemical reaction vessels. Two of the vessels contained ephedrine with a total weight of 119.1 [kilo]grams. The other vessels contained a compound used in the production of ephedrine.

[56] At para. 21 of his ruling, Kenkel J. held:

There’s ample evidence from which a trier of fact could reasonably infer that the unit at 180 Winges Road was a clandestine drug laboratory used to produce Ephedrine and MDMA. Given the value of the products and the illegal nature of the operation, it would be logical to infer that access to such an operation is restricted to those few persons intimately involved with the drug production operation. That inference is supported in this case by the opinion evidence of Detective Sgt. Culver.

[57] At para. 22 of his ruling, Kenkel J. concluded:

Considering their association with Mr. Kong and Mr. Law, their multiple attendances at the Winges Road drug lab, and their participation in the transport of items from the Winges Road location which a trier of fact could reasonably infer contained ephedrine and/or a related compound, I find that a trier of fact could reasonably find that both Mr. Bao and Mr. Wu were parties to the production of ephedrine as alleged.

[58] The preliminary hearing judge went on to consider the evidence in respect of Mr. Hui. Again Mr. Hui was charged with the three counts, counts 2, 3 and 4 on Information 09-8189 (sale, possession for the purpose of production and transportation of Ephedrine). Once again, the Crown sought committal only on a charge arising out of the same transaction as in count number 3. The new count (added count) alleged that Mr. Hui was a party to Ephedrine production.

[59] Kenkel J. reviewed the evidence and made findings at paras. 25, 26 and 27 of his Ruling.

[60] At para. 25 he found:

He’s seen at the 180 Winges road drug lab on three consecutive days. It’s highly unlikely that anyone not directly involved in the production and distribution of drugs would be permitted access to that location. Surveillance evidence also links Mr. Hui to Mr. Law and Mr. Kong, two parties central to the drug production at Winges Road.

[61] At para. 26 of his ruling, Kenkel J. found:

Mr. Hui was present in a rental van driven by Mr. Law that left the 180 Winges Road location. He later was observed throwing 10 garbage bags into a dumpster at another location. Among that garbage discarded by Mr. Hui was packaging for items later found inside Winges Road including packaging for an air filtration mask, compact infrared thermometers, outdoor cookers, a turbo air industrial fan and a foodsaver vacuum sealer. The police found in that garbage disposed of by Mr. Hui and Mr. Law a measuring cup that later tested positive for MDMA.

[62] The preliminary hearing judge went on to find at para. 27:

From his presence at Winges Road and his clandestine disposal of items from that location it would be reasonable for a trier of fact to infer that Mr. Hui was actively assisting the drug production at Winges Road.

[63] Finally, at para. 28, Kenkel J. concluded:

I find that there’s sufficient evidence upon which a trier of fact could reasonably infer that Mr. Hui was a party to the drug production at 180 Winges Road.

[64] At paras. 29 through to 39, Kenkel J. considered the evidence against Mr. Kong and Mr. Law. Documents were seized at Mr. Kong’s home which showed the purchase of various chemicals. Mr. Kong and Mr. Law were observed attending the premises of A-K Pro Chem Ltd. Later, documents were found in Mr. Law’s home one of which contained a list of items purchased from that chemical company. On one paper, the words “A-K Petrochem.com” was written.

[65] At para. 34 of his Ruling, Kenkel J. went on to find that a number of the chemicals listed in the documents in Mr. Kong’s home were found in the rental van that was observed leaving the drug lab at 180 Winges Road, Unit 22 on June 28, 2009. The opinion evidence of Ms. Chee-Chue identifies those chemicals as consistent with the production of MDMA or Ephedrine.

[66] A map to 180 Winges Road was found in Mr. Kong’s house in addition to his connection with Mr. Law and the chemicals related to drug production listed in his house. Kenkel J. concluded that these factors reasonably linked Mr. Kong to the particular drug operation at 180 Winges Road. Also found in Mr. Kong’s home was a list of items including an air cleaning system, packing machine and bags, masks and filter, and buckets that are similar to the items found at Unit 22, 180 Winges Road. The police also seized a quantity of cash in Canadian and US funds from Mr. Kong’s residence. His income tax returns for 2004 to 2008 showed no income that could reasonably explain his possession of such a large amount of money in cash.[^20]

[67] Insofar as Mr. Kong was concerned, the preliminary hearing judge concluded that a properly instructed trier of fact, drawing reasonably inferences from all of the evidence at trial could reasonably find that Mr. Kong was a party to the production of Ephedrine as alleged in the count arising from the same transaction. He also found that there was sufficient evidence upon which a trier of fact, properly instructed, drawing reasonable inferences from circumstantial evidence could find Mr. Kong guilty on counts relating to the Conspiracy Information 09-8188.[^21]

[68] Kenkel J. concluded that all accuseds would be discharged on counts 1, 2 and 3 on Information 09-8189 at the request of the Crown. At para. 41 of his ruling, the preliminary hearing judge concluded:

All accuseds will be committed to stand trial on one count arising out of the same transaction alleging that they were parties to Ephedrine production contrary to s. 46 of the CDSA. In addition Mr. Kong will be committed to stand trial on counts 5, 6 and 7 of the CDSA Information 09-8189. He will also be committed to stand trial on all counts in the Conspiracy Information 09-8188.

[69] The applicants Bao and Hui argue that there was insufficient evidence to commit them to trial on the added charge. They assert the evidence that 180 Winges was at some point in time an Ephedrine production lab was entirely based on circumstantial evidence. At para. 53 of the applicants’ factum they submit the following:

…Critical to this chain of evidence was the expert opinion evidence of Linda Chee-Chue. Ms. Chee-Chue’s opinion, however, rested on an assumption that the significant quantity of ephedrine in two reaction vessels seized from 4080 Sheppard Avenue came from 180 Winges. Without this critical connection between the ephedrine and 180 Winges , Ms. Chee-Chue’s opinion that ephedrine was the substance that was likely produced at 180 Winges cannot stand. It is submitted that there was no evidence that the ephedrine seized from 4080 Sheppard Avenue came from 180 Winges. Thus, there was no evidentiary basis for Ms. Chee-Chue’s opinion and the preliminary hearing judge erred in attaching any weigh to it.

[70] I disagree. Quite to the contrary, I find that the preliminary hearing judge was correct in his determination that there was sufficient evidence to commit Mr. Bao and Mr. Hui to trial on the added charge.

[71] The preliminary hearing judge did not commit a jurisdictional error in committing Mr. Bao and Mr. Hui to trial on the added count. They maintain that there was absence of any admissible evidence that could support the inference that they were engaged in the production of Ephedrine at 180 Winges. It is further submitted that there was no evidence that any of the four reaction vessels located at 4080 Sheppard Avenue were delivered there on June 28, 2009 by Mr. Bao and Mr. Hui. Further, it is asserted that there is no evidence that the reaction vessels came from 180 Winges. They assert that without the critical link between the four reaction vessels at 4080 Sheppard Avenue and the 180 Winges, there was no evidence capable of supporting a reasonable inference that Mr. Bao and Mr. Hui were any way involved in the production of Ephedrine.

[72] Whether a judge correctly or incorrectly interprets circumstantial evidence and the potential inferences from the facts is a question of law and fact, not a question of jurisdiction. Further, in reaching his conclusions on circumstances, the judge’s assessment of the evidence that he saw and heard must be given due deference and provided he identified reasonably inferences from the circumstances, the fact that another reasonable tribunal might have taken a different view of the evidence is not a basis for review.[^22]

[73] Preliminary hearing judges, in determining whether there is sufficient evidence to commit for trial in a circumstantial case, must engage in a limited weighing of the evidence and must assess the reasonableness of the inferences that can be drawn from the facts.[^23]

[74] At para. 32 in R. v. Arcuri, the court held:

…whatever the evidence of the Crown and defence, the judge must consider “the whole of the evidence”, in the sense that she must consider whether the evidence, if believed, could reasonably support of finding of guilt. The question is the same whether the evidence of direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilty, the only remaining question being whether the evidence is to be believed, which is question for the jury.

[75] The preliminary hearing judge is entitled to assess whether the evidence is reasonably capable of supporting inferences that the Crown asks the jury to draw. It is not for the preliminary hearing judge to make conclusions on the facts or credibility of the information.[^24]

[76] The judge in considering the drawing of inferences accepts that the process of inductive reasoning lacks the same degree of “inescapable validity” as a deductive conclusion. The primary facts or premises allows therefore for a conclusion that follows with a degree of probability and not necessity.[^25]

[77] In the case, the preliminary hearing judge was correct in his assessment of the facts. By finding that the circumstances supported the inference of participation in production of Ephedrine, the preliminary hearing judge was simply assessing whether there was a scintilla of evidence to support by acknowledging and assessing recognized factors in that determination. He considered the totality of the evidence and correctly found that there was sufficient evidence for committal of both Mr. Bao and Mr. Hui. The preliminary hearing judge committed no jurisdictional errors in arriving at his conclusion.

CONCLUSION

[78] For the reasons given, this application is dismissed.

DiTOMASO J.

Delivered Orally May 2, 2012

[^1]: Ruling on committal, by Kenkel J. dated November 25, 2010 Applicants’ Application Record Volume 1 [^2]: The added count [^3]: Ruling on Committal, supra, paras. 13, 22, 28 [^4]: Ruling on Committal, supra, paras. 40 and 41 [^5]: Ruling on Committal, supra, para. 5 [^6]: Ruling on Committal, supra, at para. 7 [^7]: Ruling on Committal, supra, at paras. 10-11 [^8]: Ruling on Committal, supra, at paras. 12-14 [^9]: Ruling on Committal, supra, paras. 20 to 22 [^10]: Ruling on Committal, supra, paras. 25-28 [^11]: USA v. Shephard (1977), 1976 CanLII 8 (SCC), 30 C.C.C. (2nd) 424 (S.C.C.) [^12]: Shephard 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at p. 1080; see also R. v. Monteleone 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154 at p. 160 [^13]: R. v. Arcuri 2001 SCC 54, [2001] S.C.J. No. 52 (S.C.C.) at para. 21 [^14]: R. v. Goldstein, supra. [^15]: R. v. Panzevecchia (1997) O.J. No. 1454 (C.A.) at para. 11 [^16]: R. v. Do 2004 SKQB 395 at paras. 14 and 15 [^17]: Ruling on Committal, supra, at para. 17 [^18]: Ruling on Committal, supra, at para. 18 [^19]: Ruling on Committal, supra, at para. 19 [^20]: Ruling on Committal, supra, at para. 31 [^21]: Ruling on Committal, supra, at para. 39 [^22]: R. v. Mihalkov 2009 ONCA 154 at paras. 7-15, 33-34, 37-40 [^23]: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31-32 [^24]: R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70 at pars. 21-22 (Ont. Sup. Crt.) [^25]: R. v. Munoz, supra. at paras. 23-24

Her Majesty the Queen v. Mu Cai Bao & Kevin Hui, 2012 ONSC 2601

Case Summary

THE APPLICATION

THE PRELIMINARY HEARING

OVERVIEW

THE RULING ON COMMITTAL

ISSUES

POSITION OF THE PARTIES

ANALYSIS

CONCLUSION

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 1