ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12580-20
DATE: 20120621

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 11-19, 2012

J U D G M E N T

boswell j.

[ 1 ] At 3:22 a.m. on August 7, 2009, police officers from York Region and Durham Region executed a search warrant at 71 Stotts Crescent in Markham. They found 505 grams of cocaine hidden inside a box of Kleenex tissues. Mr. Chungkuong, one of the residents of 71 Stotts, was arrested and charged with one count of possession of cocaine for the purpose of trafficking.

[ 2 ] At the time of his arrest, Mr. Chungkuong lived at 71 Stotts with his common law wife, Linda Au, and their two year old son, Ethan. There is no dispute that cocaine was found in the residence. There is also no dispute that the amount of cocaine, at 505 grams, supports the conclusion that its purpose was for trafficking. The issue for trial was whether the Crown could prove, beyond a reasonable doubt, that Mr. Chungkuong possessed the cocaine.

The Essential Elements of the Offence

[ 3 ] To establish Mr. Chungkuong’s guilt on a charge of possession of cocaine for the purpose of trafficking, the Crown must prove the following essential elements beyond a reasonable doubt:

(i) that the accused was in possession of cocaine;

(ii) that the accused knew that the substance was cocaine; and

(iii) that the accused had possession of cocaine for the purpose of trafficking in it.

[ 4 ] The trial focussed on the first of these essential elements. Mr. Chungkuong asserts that the Crown has not established, beyond a reasonable doubt, that he possessed the cocaine in issue or that he even knew that there was cocaine hidden in his residence. Though he is under no obligation to explain how cocaine ended up in his home, he suggests that it was hidden there, without his knowledge or consent, by a third party, Thanh Ngo.

Fundamental Principles

[ 5 ] It is important to remember that from start to finish the Crown bears the burden of proving the essential elements of the offence. Mr. Chungkuong has no burden of proving anything in this case, including the suggestion that cocaine was hidden at 71 Stotts by Mr. Ngo. When considering and weighing the theory of the defence and any evidence that supports it, the Court is not assessing whether the accused has met any particular burden or onus. Instead, the Court considers only whether, on all the evidence, a reasonable doubt exists with respect to one or more of the essential elements of the offence charged.

[ 6 ] Mr. Chungkuong elected to testify in his own defence. He denied having any knowledge of the cocaine found in his home, denied that it was his, and denied having any control over it. When an accused elects to testify and denies culpability for an offence charged, the Court is directed to consider and weigh his testimony within the analytical framework described by the Supreme Court in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (“ W.D .”). While there is no magic to the wording of the formula set out in W.D. , it is important that its principles be applied: R. v. Paul, 2010 ONCA 151. In particular, it is important to recognize that this isn’t simply a credibility contest between two versions of events.

[ 7 ] The accused starts with the presumption of innocence and that presumption is only discharged if and when the Crown proves, beyond a reasonable doubt, that he is guilty of the offence charged. The concept of reasonable doubt is critical to the analysis of the evidence of Mr. Chungkuong. As with any other witness, it is open to the Court to accept some, all, or none his testimony.

[ 8 ] Ultimately, if I believe Mr. Chungkuong’s denial of any knowledge of the cocaine found in his home, then he must be acquitted. Even if I do not believe his evidence, however, I must still acquit him if his evidence leaves me in a state of reasonable doubt about his guilt. Finally, even if I am not left in doubt by Mr. Chungkuong’s evidence, I must still be satisfied that the evidence I do accept and rely on, is satisfactory to prove his guilt of the offence beyond a reasonable doubt. To put the concept into more concrete terms specific to the case at bar, a failure by Mr. Chungkuong to prove that Mr. Ngo hid the subject cocaine at 71 Stotts does not equate to a finding of guilt against him. Even if all of the evidence of the accused is rejected and/or otherwise fails to raise a reasonable doubt about his guilt, the Crown must still establish his guilt beyond a reasonable doubt on evidence the Court finds to be credible and reliable.

The Evidence of the Accused

[ 9 ] Though it is not strictly speaking necessary, within the W.D. framework, to begin with an analysis of the evidence of the accused, it is probably preferable. I intend to do so, subject only to a brief review of the police investigation that forms the backdrop to the charge now before the Court. To be clear, the following review of Mr. Chungkuong’s evidence is meant only to canvass his testimony. I will set out the relevant facts, as I find them to be on my review of all the evidence, later in these reasons.

[10] The arrest of Mr. Chungkuong, and several others, on August 7, 2009, represented the culmination of an investigation by drug enforcement officers of the Durham Regional Police Service known as Project Isis. It began as a street level investigation of a man named Michael Patrick who sold cocaine to an undercover officer on a number of occasions. Durham Police determined, through surveillance and wiretap evidence, that one of Mr. Patrick’s suppliers was Thanh Ngo.

[11] Mr. Chungkuong showed up on police radar on June 30, 2009 when he arrived at Mr. Ngo’s residence while it was under surveillance. He pulled into Mr. Ngo’s driveway in a black Mercedes (later determined to be registered to his mother). He took a black bag out of his trunk and took it into Mr. Ngo’s residence. Thirty minutes later, he came back outside to his car and put the black bag back into his trunk. He retrieved a second black bag from his trunk and took that inside. A short time later he left Mr. Ngo’s residence and returned to his house at 71 Stotts.

[12] Subsequently, the police saw Mr. Ngo come and go from 71 Stotts on other occasions. This surveillance combined with wiretap evidence gave the police the reasonable grounds they needed to obtain the warrant to search 71 Stotts. The validity of the warrant was not challenged, though the manner of its execution was the subject of a Charter application which was heard and dismissed, with written reasons reported at 2012 ONSC 3488 . The search, as indicated, yielded a find of over 500 grams of cocaine hidden in a box of tissues, sitting on top of a fish tank in the kitchen of the home.

[13] Mr. Chungkuong testified that the first time he learned that there was cocaine hidden in his house was when he was arrested. He said that prior to his arrest he had no knowledge of it. He suggested that the cocaine was hidden there by Mr. Ngo.

[14] Mr. Chungkoung described in some detail the history of his relationship with Mr. Ngo. They first met in grade 9 when they attended the same high school in Toronto. They appear to have bonded over a mutual fondness for videogames. Mr. Ngo was, according to Mr. Chungkuong, a bit of a wanderer. Not homeless, exactly, but perhaps aimless. He never appeared to attend classes and did not have a stable home life. He briefly lived with Mr. Chungkuong and his father on two separate occasions during a period spanning 2002-03. They fell out of touch when Mr. Chungkuong moved in with his mother later in 2003.

[15] By 2008, Mr. Chungkuong was living at 71 Stotts in Markham with his spouse and child. He was contacted by Mr. Ngo out of the blue. It happened that Mr. Ngo lived in Markham as well, and not far from 71 Stotts. They began to spend time together, primarily to play videogames, according to Mr. Chungkuong.

[16] In early July 2009, Mr. Ngo came to stay at 71 Stotts for about a week and a half. He was having troubles in his marriage and needed a place to stay. Mr. Chungkuong said he gave Mr. Ngo a key to the home so that he could come and go as he saw fit. Mr. Ngo apparently led a lifestyle where he was up most of the night and slept most of the day. He did not work. Mr. Chungkuong did not know of any time that Mr. Ngo had worked. He suspected that Mr. Ngo was earning his living through illegal means, but did not know for sure. He had heard rumours that Mr. Ngo attended nightclubs with certain individuals associated with illegal activities. He said he never personally saw Mr. Ngo engage in criminal activity, other than smoking marijuana.

[17] On the night of August 6, 2009, Mr. Ngo was no longer staying at 71 Stotts. He was, however, under almost continuous police surveillance. That night he was observed to be in the area of Symington Avenue in Toronto. He left Symington Avenue at about 11:12 p.m. He travelled ultimately to 71 Stotts, arriving there at approximately 11:55 p.m. It is agreed that between Symington and Stotts, Mr. Ngo drove his vehicle in a manner that was consistent with his being aware that he was under surveillance.

[18] Mr. Chungkuong testified that Mr. Ngo text messaged him at home late in the evening of August 6, 2009, inquiring if he was still awake. Mr. Ngo indicated that he would like to come over to “hang out”. Mr. Chungkuong was in the family room on the upper floor of 71 Stotts when he received the text. A few minutes after the text, Mr. Chungkuong heard the front door open and he went downstairs to confirm that it was Mr. Ngo entering the home. They had a very short interaction, consisting, according to Mr. Chungkuong, of him saying “hey” to Mr. Ngo and then returning upstairs. Mr. Ngo then used the main floor bathroom and within about one minute, joined Mr. Chungkuong in the family room, where they played videogames.

[19] When Mr. Ngo arrived, he was wearing a black hoodie. He did not appear to be carrying anything. There was nothing remarkable about Mr. Ngo’s demeanour.

[20] After playing videogames for about 40-45 minutes, Mr. Ngo announced that he was leaving. He showed himself out. It was an unremarkable visit. The only other feature of any significance was that Mr. Ngo went to the bathroom on the main floor one further time during the visit. The fish tank where the tissue box containing cocaine was found was located in the kitchen area on the main floor. The bathroom used twice by Mr. Ngo was located just around a corner from the kitchen.

[21] At this point, I will step out of my review of Mr. Chungkuong’s evidence and review the evidence of police officers who testified about what happened with Mr. Ngo after he left 71 Stotts. I will come back to Mr. Chungkuong’s evidence in a moment, but this is an appropriate point to complete the evidence adduced during the trial regarding Mr. Ngo’s activities on the night in issue.

[22] Surveillance of Mr. Ngo was picked up again almost immediately after he left 71 Stotts. In fact, officers involved in Project Isis were instructed to stop Mr. Ngo’s vehicle if it was spotted and to arrest Mr. Ngo for possession of cocaine for the purpose of trafficking. Detective Constable Milliard testified that he observed Mr. Ngo’s Acura travelling westbound on Major MacKenzie Drive near McCowan Road. At a set of lights, he attempted to stop the vehicle by pulling in front of it with his unmarked car. He got out of his vehicle and approached Mr. Ngo’s vehicle. He was wearing a vest marked “police”. He made eye contact with Mr. Ngo. Mr. Ngo sped away at a high rate of speed and headed southbound on McCowan Road.

[23] By this point another member of the surveillance team, Detective Constable Salhia was approaching the area. He testified that he witnessed Mr. Ngo speed away from D/C Milliard and he followed him. The time was about 12:45 a.m. Mr. Ngo crashed his vehicle as he attempted to negotiate a right hand turn onto 16 th Avenue. He got out of the car and attempted to flee on foot, but was apprehended by D/C Salhia. At the time of his arrest, he was found to be in possession – on his person and in his vehicle – of $235,000 in cash.

[24] A search warrant was executed on Mr. Ngo’s residence within an hour of his arrest. During the search, two ziplock plastic bags containing approximately 9 oz. of cocaine (approximately ¼ of a kilogram) were found in a central vacuum canister in the garage.

[25] I return to Mr. Chungkuong’s evidence.

[26] Mr. Chungkuong admitted in his testimony that he got involved in the trafficking of marijuana in late 2008. At that time he was attending an adult learning centre in an effort to obtain his high school diploma. There he met an individual he identified only as “Ike”. He said Ike approached him on numerous occasions looking to acquire marijuana. His impression was that Ike approached him because he is Asian and Asians, he said, have a reputation for being able to supply drugs at cheaper rates than others. At any rate, he sourced out a supply for Ike. He identified his supplier as the older cousin of a friend. He did not identify the supplier by name because the supplier was a “good guy” and he did not want to get him in trouble.

[27] From late 2008 until the time of his arrest in August 2009, the accused sold marijuana to Ike – exclusively he said – which he obtained from his friend’s cousin. The amounts provided to Ike were significant: from a half pound to ten pounds at a time. But, he said, the sales were sporadic and he did not make much money. He made $50 for a half pound and $100 for a full pound.

[28] When the police searched Mr. Chungkuong’s home on August 7, 2009, they found a number of items in addition to the half kilogram of cocaine. In particular:

• In the walk-in closet of the master bedroom, they found two electronic money counters;

• There was also a small safe in the closet, inside of which they located $1,283 in Canadian funds and $792 in U.S. funds;

• $1,400 in counterfeit Canadian $100 bills was located in a desk drawer in the upstairs office;

• Three Blackberry phones, four LG cell phones and one Samsung cell phone were also found in the house;

• In the garage was a black Mercedes vehicle, registered to Mr. Chungkuong’s mother. It was locked, but the police were able to locate a key for it. Inside the trunk of the vehicle were two black bags. One bag smelled strongly of marijuana and contained marijuana residue. The other bag contained a scale, some duct tape and a 1 oz. weight. In addition, a shoe box was found in the trunk, inside of which there was a bowl containing a dusting of white powder, a fork, and a bottle of water.

[29] The accused offered explanations for all of the items located in his home.

[30] He said his friend’s cousin (i.e. his supplier) provided him with the scale and weight as well as one of the electronic money counters. The counter did not work so he purchased another for himself that he saw on sale in Costco.

[31] The Canadian money found in his safe was, he said, all collectible bills. The police witnesses who testified about the money – Officers Salhia and French – did not make notes of the denominations. The American money was simply funds he said he accumulated on trips to the U.S. The exchange rate was favourable so he did not want to convert it back to Canadian currency.

[32] The counterfeit money was admittedly part payment for a drug sale to Ike. The total sale was $8,300 for 4 lb. Ike paid this sum partly in counterfeit money. Mr. Chungkuong challenged Ike about the counterfeit money and was told it would be replaced.

[33] The accused said the cell phones and Blackberry devices were a mixture of old and current phones. He said he uses a Blackberry for texting. He uses a flip phone style of cell phone for making phone calls. He said a flip phone is better for telephone use as it is not susceptible to “pocket dialling”, by which he meant the inadvertent dialling of a number that sometimes occurs when a cell phone is placed in a pocket. His wife also had an active cell phone.

[34] The Crown’s evidence was unclear about how many of the Blackberry devices and cell phones were actually operational at the time of Mr. Chungkuong’s arrest.

[35] As for the items found in the trunk of the black Mercedes, the accused admitted that both black bags were his. He denied any knowledge of the shoebox containing the bowl.

[36] One of the two black bags was admittedly used for the purpose of transporting marijuana. The accused agreed that it gave off a strong smell of marijuana. The other bag was used to transport the scale.

[37] Mr. Chungkuong testified that he had transferred the two black bags into the trunk of his mother’s car a short time prior to his arrest. His own car was an older model Honda Civic. His mother had two Mercedes automobiles. She regularly made one of them available to Mr. Chungkuong and his wife. One of his mother’s Mercedes was involved in an accident in mid-July 2009. It was in the shop for several weeks. He assisted his mother in picking it up sometime around August 5, 2009. She drove it to his house and parked it in the garage. He had to move the Civic out of the garage to accommodate the Mercedes. He had his two black bags in the trunk of his Civic. He moved them over to the Mercedes and locked them in the trunk.

[38] During cross-examination, Mr. Chungkuong was pressed about why he didn’t just leave his black bags in the trunk of the Civic. He said he always kept his two black bags in the trunk of whatever car was locked in the garage. His reasoning for this was bizarre. He essentially claimed that he kept the bags in the locked trunk of whatever car was locked in the garage because he did not want them anywhere accessible to his two year old son, Ethan. He agreed, however, that the bags would have been equally inaccessible to Ethan if they had been left in the trunk of the Civic. I do not accept the explanation of the accused. These bags, and their contents, were evidence of his involvement in drug trafficking. I find that he kept them in a locked trunk inside a locked garage in order to best avoid their detection.

[39] Having set out Mr. Chungkuong’s evidence in summary fashion, I will now turn to an analysis of the case against him, considering whether, in the light of his evidence, the Crown has been able to make out the essential elements of the offence beyond a reasonable doubt.

Analysis:

[40] This really is a straightforward, one issue case: has the Crown established, beyond a reasonable doubt, that Mr. Chungkuong possessed the 505 grams of cocaine located during the search of 71 Stotts? If possession is established, the defence concedes that the amount of cocaine found supports a finding that it was for the purpose of trafficking.

[41] The term “possession” is defined in s. 4(3) of the Criminal Code of Canada , R.S.C. 1985 c. C-46 and incorporated by reference in s. 2 of the Controlled Drugs and Substances Act , S.C. 1996, c.19. Section 4(3) provides as follows:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[42] In this case, the Crown relies on personal possession as described in s. 4 (3) (a)(i). The onus is on the Crown to establish that Mr. Chungkuong had possession of the subject cocaine, beyond a reasonable doubt. To do so, the parties agree the Crown must prove that Mr. Chungkuong had knowledge of the presence of cocaine in his residence and that he had a measure of control over it: R. v. Grey , 1996 35 (ON CA), at para. 15. That said, this case really comes down to the issue of knowledge. If the Crown is able to establish that Mr. Chungkuong knew about the presence of cocaine in his residence, it will follow, in the circumstances of this case, that he had some measure of control over it, given his occupation of 71 Stotts.

[43] Knowledge is a state of mind – in this case, Mr. Chungkuong’s state of mind. Establishing the state of mind of an accused person typically requires a careful examination of all of the surrounding circumstances. State of mind evidence may be direct, but it is frequently indirect, or circumstantial. In this case, the Crown was unable to adduce direct evidence from any witness who could testify that the accused knew about the presence of cocaine in 71 Stotts. Direct evidence is not, however, essential. It is well settled that issues of fact in criminal proceedings may be established by circumstantial evidence: R. v. Pham , 2005 44671 (ON CA).

[44] Although the Crown did not adduce direct evidence of Mr. Chungkuong’s state of mind, the accused did provide his own direct evidence on the matter. He said he had no knowledge of the presence of cocaine in his home until it was located by the police. Obviously, and in accordance with the first branch of the W.D. analysis, if I believe his evidence in this respect, then I must acquit him, because the Crown will have failed to establish that he had the requisite knowledge and control.

[45] I do not, however, find Mr. Chungkuong’s evidence to be credible on this point. While I do not reject everything that he said in evidence by any means, I do have serious concerns about his credibility on drug-related matters. I find that Mr. Chungkuong seriously understated his involvement in drug trafficking. According to his evidence, he was only occasionally engaged, as a poorly compensated middle-man, facilitating access between an unknown supplier and a fellow student identified only as “Ike”. This description is simply implausible and I reject it for reasons that include the following:

(i) First, it is implausible that Mr. Chungkuong became engaged in drug dealing because a fellow student pestered him to find him a supply source. The purported student, Ike, was already known to Mr. Chungkuong as a user of marijuana, so he obviously already had a supply source. The notion that he approached Mr. Chungkuong because he is Asian and Asians are known to be able to obtain drugs cheaply is not believable.

(ii) Mr. Chungkuong’s entry into the drug trafficking trade appears to coincide with his reunion with Mr. Ngo. Mr. Ngo was clearly involved in drug trafficking. When the two friends reconnected, Mr. Chungkoung was not working. He had a spouse who was employed in an occupation that would have provided modest income at best. He had a child to support. Mr. Chungkuong admits that he began to traffic in marijuana in late 2008. I find that his connection with Mr. Ngo triggered his involvement in selling drugs and not any association with the purported fellow student, Ike.

(iii) Ike, in fact, was never fully identified. Moreover, the purported supplier of marijuana for Ike’s use was never identified, other than as “a cousin of a friend.” In my view, it is far more likely that the supply of drugs came through sources connected to Mr. Ngo.

(iv) Mr. Chungkuong said he supplied marijuana exclusively to Ike. He did not do so regularly, but only occasionally. He made only $100 per pound. He described one particular transaction where he supplied Ike with four pounds of marijuana and his profit was $200. Four pounds is a good deal of marijuana. Had he been detected and prosecuted for trafficking in that amount of marijuana, Mr. Chungkuong would have faced serious penalties. It strikes me as highly unlikely that he would take such significant risks for such a small return.

(v) Mr. Chungkuong had a scale sufficient in size to weigh large amounts of drugs. He also had electronic money counters and a number of cell phones. The evidence amply supports a finding that Mr. Chungkuong was quite actively involved in the trade of drugs and that he was not simply the somewhat reluctant, occasional middle-man he described himself as.

(vi) I also do not accept that Ike was Mr. Chungkuong’s only customer. I am satisfied that the surveillance evidence from June 30, 2009 supports a finding that Mr. Chungkuong conveyed drugs into Mr. Ngo’s home from the trunk of his car. Furthermore, the drug paraphernalia found in the search of 71 Stotts is consistent with an active trade and seems unnecessary to support the occasional transaction with a single customer.

[46] Mr. Chungkuong admitted that he was involved in the sale of marijuana. Having elected to testify, I believe he had little choice but to do so, in the face of the evidence recovered from his home. I find, however, that he was not candid about the extent of his involvement in the drug trade and in fact intentionally understated it. His evidence relating to his involvement in drug trafficking is neither credible nor reliable – and this extends to his denial of any knowledge of the cocaine found in his house.

[47] Having rejected Mr. Chungkuong’s denials of any knowledge of the cocaine found in his home, I move on to the second and third branches of the W.D . analysis. I must consider whether Mr. Chungkuong’s denial of any knowledge of the cocaine, though not believed, still raises a reasonable doubt about his guilt and, if not, whether there is otherwise a sufficient evidentiary basis to establish his guilt beyond a reasonable doubt.

[48] In considering the matter of reasonable doubt it is inappropriate to consider Mr. Chungkuong’s evidence in isolation. Indeed, the court has a duty to consider his evidence in the context of all of the evidence presented at trial. The court has a positive duty to compare the evidence of all the witnesses, recognizing of course that one possible outcome of the comparison and overall assessment of evidence is that a reasonable doubt may be raised about the guilt of the accused: see R. v. Hull , 2006 26572 (ON CA).

[49] The Crown urges the court to find that Mr. Chungkuong’s evidence should not only be rejected, but that it does not raise a reasonable doubt about his knowledge of the presence of cocaine in his home. The Crown submits that there are not only concerns with respect to the credibility of the accused, but there is also sufficient circumstantial evidence from which the Court should infer that Mr. Chungkuong had knowledge and control of the subject cocaine.

[50] The Crown relies on a combination of the following facts, which I find to have been established on the evidence:

(i) The cocaine was found in a home occupied by Mr. Chungkuong, along with his wife and child;

(ii) Mr. Chungkuong is an admitted drug trafficker, at least in marijuana;

(iii) Mr. Chungkuong is closely associated with Mr. Ngo, a known trafficker in cocaine. Indeed, I am satisfied that they were engaged in trafficking together, although I am unable to say precisely to what extent;

(iv) Drug trafficking paraphernalia was located in Mr. Chungkuong’s home and there is no dispute that it was his. It included two money counters, multiple cell phones, a scale with a weight for calibration purposes, and a bag containing marijuana residue;

(v) A bowl with a powder residue, together with a fork, was found in the trunk of Mr. Chungkuong’s mother’s car, which was in his possession. It was found together with the bag containing marijuana residue and a bag containing the scale and weight. The bowl and fork were inside of a Nike shoe box. I am satisfied that the bowl contained cocaine residue.

[51] The identification of the white powdery substance found in the bowl was a matter of significant controversy. Unfortunately the substance was never tested, which makes its identification more difficult. The officers who located the bowl - Detective Connolly and Detective Constable Bryan - both testified that, based on their experience with cocaine, they were satisfied that the white powder in the bowl was indeed cocaine residue. D/C Bryan based his conclusion on the appearance of the substance, the fact that the contents of the box appeared to be a “drug kit” and the fact that these items were found in close proximity to other drug paraphernalia. Detective Connolly added another feature to the evidence. He said, and I accept, that he could detect the distinct odour of cocaine in the trunk, when he placed the bag with the scale up to his nose.

[52] I accept the evidence tendered by the Crown that cocaine has a very distinctive smell. Officers Connolly, Bryan and Ford all have extensive experience in drug investigations and all testified, credibly in my view, that cocaine has a unique and distinctive smell.

[53] My finding that the bowl contained cocaine residue is based on a constellation of factors. Notwithstanding the absence of scientific testing, the appearance of the substance, the smell of cocaine in the trunk of the car, the placement of the bowl and fork in a shoebox, and the proximity of the bowl to the other drug paraphernalia found inside the trunk satisfy me that the powdery substance lining the bowl was cocaine residue. I have found, as I set out earlier, that Mr. Chungkuong transferred his drug paraphernalia from one car to another to ensure that it was in the most secure location – specifically the locked trunk of whatever car was going to be locked in the garage. The placement of the shoebox containing the bowl and fork in the Mercedes trunk is consistent with it being drug paraphernalia that was kept together with the two black bags.

[54] Mr. Chungkuong testified that he thought the bowl and fork might have been dirty dishes used by his mother to feed Mr. Chungkuong’s son, Ethan, in the car. Mr. Chungkuong was, of course, only speculating, at best. He expressed no actual knowledge of his mother having used that bowl for the purpose of feeding Ethan. Just prior to Mr. Chungkuong’s arrest, the Mercedes had been in the shop for several weeks, then driven from the shop directly to the garage of 71 Stotts, according to Mr. Chungkuong. It would not appear that Mr. Chungkuong’s mother had been recently in the car feeding Ethan. I consider Mr. Chungkuong’s speculation to be valueless and I consider the notion that the bowl was used to feed Ethan in the car, then placed inside a shoebox in the trunk, to be nonsensical.

[55] The circumstantial evidence relied upon by the Crown is compelling. The evidence, in my view, establishes that Mr. Chungkuong was a drug dealer, that he dealt in drugs far more extensively than he let on, and that he dealt in cocaine was well as in marijuana. The facts and circumstances relied upon by the Crown certainly support an inference that Mr. Chungkuong had knowledge of any cocaine hidden in his house.

[56] But there are other facts and circumstances that bear on the issue of knowledge that must be considered as well, in the context of whether the Crown’s suggested inference has been established to the reasonable doubt standard.

[57] For instance, the cocaine in this case was hidden in a box of tissue. It was not located out in the open, as was the case in R. v. Sparling , [1988] O.J. No. 1877 , where Watt J., as he then was, inferred the accused’s knowledge of the presence of narcotics in a residence on the basis that the accused occupied the residence, the narcotics were in plain view in the common areas of the residence, and a scale was found in a bedroom occupied by the accused. In the case at bar, the cocaine was not in plain view. Defence counsel submits that the facts of this case are closer to those in R. v. Grey , 1996 35 (ON CA), where the Court of Appeal upheld the trial judge’s conclusion that there was insufficient evidence to infer knowledge of the presence of drugs in an apartment.

[58] In my view, the facts of this case fall somewhere in between those present in Sparling and those present in Grey . Here, though the drugs were hidden, the premises were permanently occupied by Mr. Chungkuong and there is substantial additional evidence implicating him in the drug trade.

[59] The sufficiency of the evidence required to support an inference of possession can certainly be a difficult thing to assess. While the circumstantial evidence made out by the Crown is compelling, it is impacted by a significant and unusual feature of this case. Specifically the possibility that the cocaine in issue was secreted in the Kleenex box by Mr. Ngo, without Mr. Chungkuong’s knowledge or consent.

[60] With respect to Mr. Ngo’s involvement, I find the following facts to have been established by the evidence:

(i) Mr. Ngo was a trafficker in cocaine;

(ii) Mr. Ngo had access to 71 Stotts and indeed had lived there for a time in mid-July 2009. There were times when he was alone in the residence. At the time of Mr. Chungkuong’s arrest, Mr. Ngo still had his own key to the premises;

(iii) Mr. Ngo was present at 71 Stotts within a few hours prior to the execution of the warrant to search that residence;

(iv) Mr. Ngo was under surveillance prior to his arrival at 71 Stotts at about 11:55 p.m. on August 6, 2009. He travelled there from an address in Toronto and exhibited counter-surveillance driving techniques while en route. He stayed for about 45 minutes. After he left, he was followed by police officers. When Officer Milliard attempted to stop him, he fled at a high rate of speed. When he was eventually apprehended, he was found with $235,000 in his possession. Shortly thereafter, 9 oz. of cocaine was located in his residence during a police search.

[61] The defence invites the Court to draw an inference that Mr. Ngo hid the cocaine in the kitchen of 71 Stotts when he attended there just before midnight on August 6, 2009. I accept Mr. Chungkuong’s evidence that Mr. Ngo was alone for a brief period while he used the washroom, just around the corner from the kitchen. I am certainly satisfied that the opportunity existed for Mr. Ngo to hide the cocaine.

[62] The Crown submits that a finding that Mr. Ngo hid cocaine at 71 Stotts in an effort to avoid detection by the police would amount to pure speculation. I cannot agree with that submission, in light of the factual findings I have made about Mr. Ngo’s involvement in cocaine trafficking, his access to 71 Stotts, his presence there mere hours before the cocaine was found, and his attempts to avoid the police both before his arrival and after his departure from 71 Stotts. I believe an available inference is that Mr. Ngo hid cocaine at 71 Stotts. That said, I am not prepared to draw that inference. The circumstantial evidence is not sufficient, in my view, for me to make such a conclusion. I recognize that Mr. Ngo was a drug trafficker and may very well have commonly utilized anti-surveillance techniques. Furthermore, his demeanour when he arrived at 71 Stotts around midnight on August 6, 2009 did not suggest he was concerned about being pursued by the police. The most I can say, under the circumstances, is that there is a reasonable possibility that Mr. Ngo hid the cocaine at 71 Stotts. This is something more than mere speculation, though the evidence falls short of being strong enough to support the inference suggested by defence counsel.

[63] The ultimate issue, of course, is whether, on the facts as I have found them, and on the inferences I have drawn with respect to specific pieces of evidence, the Crown has established Mr. Chungkuong’s knowledge of the presence of cocaine at 71 Stotts beyond a reasonable doubt.

[64] The reasonable doubt standard does not apply, of course, to individual pieces of evidence, unless an individual piece of evidence amounts to an essential element of an offence. But once the Court has made a determination of the evidence that the Court finds credible and reliable, the reasonable doubt standard is applied to the assessment of that evidence as a whole, as it relates to the essential elements of the offence.

[65] In this case, based on my assessment of the facts as I have found them on the whole, I find that a reasonable doubt does exist as to whether Mr. Chungkuong had knowledge that cocaine was present at 71 Stotts. I repeat, the circumstantial evidence relied upon by the Crown is compelling. Indeed, in my view, it rises to the level of establishing a probability that Mr. Chungkuong knew about the presence of the cocaine. But it is not sufficient to establish his knowledge beyond a reasonable doubt. Mr. Chungkuong’s denials, even though not believed, combined with the fact that the cocaine was hidden and the circumstances surrounding Mr. Ngo’s involvement, raise a reasonable doubt in my mind.

[66] I appreciate that the Crown is not required to prove its case to a standard of absolute certainty. Moreover, the Court is entitled to come to common sense conclusions based on the evidence as accepted. Common sense suggests that it is likely that Mr. Chungkuong knew about the cocaine. But that said, probable guilt or likely guilt is not the same as proof beyond a reasonable doubt.

[67] In the result, for the reasons expressed, the accused is acquitted.

Boswell J.

Released: June 21, 2012