ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 12580-20
Date: 2012-06-12

Between:

HER MAJESTY THE QUEEN – and – CHARLETON CHUNGKUONG Defendant

James Clark and Rick Visca for the Crown

Najma Jamaldin and Paul Genua, for the Defendant

Heard: June 12, 2012

ruling on THIRD PARTY SUSPECT APPLICATION

boswell j.

[ 1 ] The accused faces one count of possession of cocaine for the purpose of trafficking.

[ 2 ] The charge arose out of an investigation known as Project Isis. As part of the investigation, Durham Region Police obtained judicial authorizations to intercept communications between a number of individuals believed to be involved in the trafficking of cocaine. One of the principal suspects involved was identified as Thanh “Jimmy” Ngo. The police believed that Mr. Ngo was being supplied with cocaine by an individual named Khanh Mac as well as another, unidentified, person connected to a residence municipally known as 71 Stotts Crescent in Markham (“71 Stotts”).

[ 3 ] In the very early morning hours of August 7, 2009, members of the York Region Police Service (“YRPS”) Tactical Team, along with drug enforcement officers from both Durham and York Region Police Services executed a search warrant at 71 Stotts. YRPS Constable Adam Ford participated in the search. Once inside the residence he entered the kitchen. The first thing he searched was a Kleenex box that he saw sitting on top of a fish tank. He pulled some of tissues out of the box and found approximately one-half of a kilogram of cocaine hidden in the box, wrapped in grey plastic.

[ 4 ] A theory of the defence is that the cocaine found at 71 Stotts was placed there, without the knowledge or consent of the accused, by Mr. Ngo. The accused accordingly seeks leave to adduce evidence tending to show that Mr. Ngo committed the crime for which the accused was charged.

The Governing Test:

[ 5 ] The test for admission of third party suspect evidence is straightforward and not in dispute. Evidence of the potential involvement of a third party in the commission of an offence is admissible provided it meets the test of relevancy and has sufficient probative value to justify its reception: R v. Grandinetti, 2005 SCC 5 (“ Grandinetti ”).

[ 6 ] In Grandinetti , Abella J. described the threshold test to be met by the accused as follows, at paras. 47-48:

47 The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine , [2004] 1 S.C.R. 702, 2004 SCC 27 , at para. 70 . If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous , [2002] 2 S.C.R. 3, 2002 SCC 29 .

[ 7 ] While the parties are not in disagreement about the proper test to be applied, they have opposite views as to whether the test has been met in this case.

Positions of the Parties:

Position of the Accused

[ 8 ] The accused asserts that there is an ample evidentiary foundation to allow him to adduce evidence tending to show that Mr. Ngo committed the offence charged. He points, most notably, to the following:

(i) Mr. Ngo was known to the police as a trafficker in cocaine;

(ii) The police had Mr. Ngo under surveillance. In the evening of August 6, 2009, Mr. Ngo was followed to a residence in Toronto. Sometime after 11:00 p.m., Mr. Ngo was observed to leave the Toronto address. YRPS Detective Nicholas Ibbott, who participated in the surveillance of Mr. Ngo, made the following note after 11:10 p.m.:

A male believed to be Ngo travelled in Acura to area of McCowan Rd/Castlemaore. He drove around streets and was let run in the area.

(iii) Sometime later, Mr. Ngo’s vehicle was observed at 71 Stotts;

(iv) At 12:45 a.m., Mr. Ngo’s vehicle left 71 Stotts and travelled at a very high rate of speed southbound on McCowen Road. Police pursued Mr. Ngo and he eventually crashed his vehicle into a tree. He then attempted, unsuccessfully, to flee on foot;

(v) Mr. Ngo was found to have a very large sum of money in the trunk of his car at the time of his arrest;

(vi) Officers searched Mr. Ngo’s home pursuant to a search warrant and found cocaine concealed in two plastic packages inside a central vacuum canister in his garage.

[ 9 ] Counsel for the accused summarized the evidence by noting that Mr. Ngo had an opportunity to place the cocaine inside 71 Stotts (he was present at the scene just before cocaine was found), his conduct before and after he left 71 Stotts was consistent with a state of awareness that he was under police surveillance, cocaine was found in his garage and a large sum of money was found in his car.

Position of the Crown

[ 10 ] The Crown argues that the evidence highlighted by the accused is not sufficient to meet the evidentiary burden required before third party suspect evidence may be adduced. In the Crown’s submission, the defence theory is conjectural and the evidence consists of nothing more than a series of conjectural components. It is nothing more, according to the Crown, than “a chain of speculation joined by gossamer links” ( Grandinetti , para. 48 ).

[ 11 ] The Crown argues that the evidence involving Mr. Ngo is equivocal and not reasonably capable of supporting the inferences suggested by the accused.

[ 12 ] To illustrate its position, Crown counsel pointed out that Mr. Ngo is a drug dealer. As such, a reasonable inference may be drawn that he is, at all times, concerned about the possibility of police surveillance. In other words, the evidence relating to the manner of his driving both before and after his attendance at 71 Stotts on August 6-7, 2009 is consistent with his general conduct and does not give rise to a reasonable inference that he had any heightened awareness of being followed on the night in question. Any such an inference would be purely conjectural.

[ 13 ] Further, there are no marked or significant similarities between the packaging of the cocaine found in Mr. Ngo’s garage and the cocaine found at 71 Stotts. There is nothing in the evidence to mark the cocaine at 71 Stotts as belonging to Mr. Ngo. It is pure speculation that Mr. Ngo left any cocaine at 71 Stotts.

[ 14 ] There was, moreover, evidence found in the home and garage of the accused that supports a finding that the accused was involved in drug dealing. For instance, drug paraphernalia was found in the trunk of a car parked inside the garage at 71 Stotts and counterfeit money was found inside the house. The Crown submits that a more reasonable inference is that the accused was dealing drugs, was in control of his residence when Mr. Ngo came by and was with Mr. Ngo during the period of time that Mr. Ngo was present in the residence on August 6-7, 2009.

[ 15 ] Finally, the Crown urged the Court to consider the prejudicial effect of the evidence sought to be adduced by the accused and to come to the conclusion that the prejudice that will result from the admission of the evidence will outweigh its probative value. The prejudice adverted to was the risk of prolonging the trial and introducing an element of confusion into it.

Discussion:

[ 16 ] I agree with the submissions of counsel for the accused.

[ 17 ] It is important to recall the distinction between evidential and persuasive burdens, which was well canvassed by Fish J. in R. v. Fontaine , as above. “An ‘evidential burden’ is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the ‘persuasive burden’ determines how the issue should be determined.” ( Fontaine , para. 11 ).

[ 18 ] The accused has an evidential burden to meet before third party suspect evidence may be adduced. He must establish that the evidence is relevant and probative, by demonstrating a sufficient connection between the third party and the crime. He must show that there is some basis upon which a reasonable, properly instructed trier of fact could acquit based on the defence. This is not a persuasive burden, at least not at this stage. He need not establish that the defence is somewhat likely, likely, or very likely to succeed at the end of the day: R. v Cinous , as above, at para. 54 . It is not necessary, therefore, that evidence pointed to by the accused be unequivocal, or that suggested inferences be the only available inferences. It is necessary only that the inferences be available and reasonable and not based on speculation: Grandinetti, as above.

[ 19 ] In my view, there is sufficient evidence connecting Mr. Ngo to the crime, both directly and inferentially, to justify the granting of leave to adduce third party suspect evidence. The Crown’s arguments about the unequivocal and unconvincing nature of the evidence may ultimately win the day, or they may not. They do tend, in my view, to address the persuasive burden more than the evidentiary burden that must be met by the accused.

[ 20 ] There is no dispute that Mr. Ngo was a known cocaine dealer. At the time of his arrest he was found with a very large sum of money in his vehicle. Cocaine was located in his garage. He attended at 71 Stotts just hours before the execution of a search warrant that resulted in the police locating half a kilogram of cocaine at that location. His driving both before and after his arrival at 71 Stotts gives rise to a reasonable inference – though not the only inference – that he was aware he was under surveillance by police and he was taking steps to elude such surveillance.

[ 21 ] The court does not yet have a fulsome view of the defence case. It may be that further evidence will strengthen or, perhaps, weaken the inferences suggested by the accused. But from the court’s current vantage point, it is not unreasonable to suggest that Mr. Ngo’s background and his conduct on the night in question, give rise to the reasonable inference that he was concerned about being pursued by the police and he deposited cocaine at 71 Stott to avoid being caught with it in his possession. The evidence pointed to by the accused may not ultimately raise a reasonable doubt about his culpability, but it is more than merely stochastic in nature. It meets the requisite evidentiary burden at this stage.

[ 22 ] I am furthermore not persuaded that there will be any undue prejudice to the trial by admitting the evidence. It is not complex evidence. It is straightforward and simple. It will not require significant amounts of trial time to pursue or argue.

[ 23 ] In the result, the application for leave to adduce third party suspect evidence is granted.

Boswell J.

Boswell J.

Released: June 12, 2012