ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-90000169-0000 DATE: 20130405

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VELLE CHANMANY

Sarah Egan, for the Crown

Leora Shemesh, for the Accused

HEARD: January 20 – February 11, 2013 and March 19, 2013

REASONS FOR JUDGMENT

M. Dambrot J.

[1] Velle Chanmany is being tried by me, without a jury, on an indictment alleging that on May 8, 2008, he was in possession of methamphetamine for the purpose of trafficking, and in possession of Canadian currency that was the proceeds of crime. Members of the Toronto Police Service testified that a general warrant was executed on a motor vehicle under the control of the accused early that morning, and that seven kilos of methamphetamine and $1,800 were seized in a bag located in the rear seat. The Crown says that the accused was in possession of the methamphetamine, and that his possession was for the purpose of trafficking. The Crown also says that he was in possession of the currency, and that it was the proceeds of drug trafficking. The accused says that no drugs were in his vehicle and that the methamphetamine was diverted from another seizure and falsely attributed to him. In any event, he says that his guilt has not been established beyond a reasonable doubt. He concedes that he was in possession of the currency, and that it was in fact the proceeds of drug trafficking.

THE EVIDENCE

The Police Evidence

[2] In 2008, members of the Toronto Police Service were conducting a large investigation referred to as Project Blackhawk. That investigation commenced in 2006, and culminated in approximately 30 arrests on June 18 and 19, 2008. The accused was one of the targets of the investigation. There were about a dozen targets in all. The accused was the object of physical and audio surveillance, and became well-known to the officers who conducted that surveillance. On April 29, 2008, 52 kilos of methamphetamine were seized in a van, and a methamphetamine laboratory operating at 1645 Sismet Road, Unit 13, in Mississauga was dismantled. On May 8, 2008, seven kilos of methamphetamine were allegedly seized in the accused’s car.

[3] Although the investigation was a successful one, not all of the targets of the investigation were charged with offences. Some of the targets who were believed to be drug traffickers, particularly Kwang Lamb, Tanner NcNeil and Ian Jacobsen, were not charged with any offences. Sataya Vongkosy, who was charged, was clearly the highest level trafficker under investigation in this project. Lamb and the accused were believed to be at the same level, just below Vongkosy.

[4] Detective Richard Shank began participating in the investigation of the accused in 2006, and ultimately became one of the lead investigators in March 2008, when wiretapping was first employed in this project. The accused was one of the targets of the wiretapping from the beginning. The accused used many different cell phones during the course of the investigation, and changed his phones regularly. As a result, while many of his private communications were intercepted, many were not.

[5] During this investigation, Detective Franco Mancuso, Detective Glenn Asselin and Detective Scott Ferguson were members of the Toronto Police Service attached to the Provincial Weapons Enforcement Unit (“PWEU”). Members of that unit played a role in Project Blackhawk. They conducted extensive physical surveillance of the targets, initiated several traffic stops with the aid of general warrants and executed a number of search warrants, including several that were executed surreptitiously. As will be seen, Mancuso, Asselin and Ferguson were directly involved in the alleged seizure of methamphetamine from the accused’s motor vehicle that forms the subject matter of this prosecution. Asselin actually made the seizure. I note that while some of the officers in Asselin’s office participated in the searches of the van and the lab, Asselin did not.

[6] Before I discuss the events of May 7 and 8, 2008, I will describe several other investigative steps taken in the course of Project Blackhawk. These are not part of the Crown’s case against the accused, but evidence of these steps was led by the defence in support of the defence position, or by the Crown in response to the defence evidence.

February 13, 2007

[7] On February 13, 2007, Shank was part of a Project Blackhawk surveillance team that conducted a traffic stop of a vehicle driven by Tanner McNeil. McNeil was engaged in very aggressive counter-surveillance activity. The police ultimately stopped McNeil when he began driving through red lights. The surveillance cars were unmarked, and the police were not in uniform, but they activated a police lights package and pulled the car over. Tanner was issued a Provincial Offences Act ticket by uniform officers who arrived on scene.

[8] While the car was stopped, Shank observed movement on the ground in the rear seat area of the vehicle. He discovered the accused hiding under a blanket. He observed that the accused had a cell phone in his possession, and was attempting to eat its SIM card. He was startled by this discovery, and took the accused out of the car and to the ground for officer safety. Shank had not been aware that the accused was in the car. Shank seized the SIM card, and parts of the phone that he found outside the car, on the authority of a general warrant, in hopes of retrieving data from the card. Neither Tanner nor the accused were arrested.

January 30, 2008

[9] On January 30, 2008, Asselin and Mancuso were conducting surveillance on the accused’s vehicle along with other members of the PWEU including Detective Constable Steinwall. Asselin, who was in charge, had no intention of stopping the vehicle that day. On this occasion, the accused was a passenger in his car, and his friend Chung Fai Mok, also known as Jeff Mok or Skinny, was driving.

[10] As the surveillance continued, Asselin was advised by one of the officers that the accused was seen getting out of another vehicle carrying a dark gym bag, walking to his vehicle and placing the bag in the trunk. Asselin decided to effect a high risk takedown of the vehicle in order to arrest the accused, search the vehicle and seize the bag pursuant to a general warrant. Consistent with the manner in which this investigation was being conducted, he planned to release the accused at the end of the search whether or not drugs were seized.

[11] Under Asselin’s directions, the police boxed the accused’s vehicle in at the corner of Eglinton Avenue East and Laird Drive when it came to a stop at a red light. One police car blocked the accused’s vehicle from the front, one from the rear, and one from the side. Asselin did not believe that any of the police cars came into contact with the accused’s car. Once the car was under control, Asselin testified that he went to the passenger door, pulled Chanmany out of the car, showed his badge, identified himself as a policeman, placed him face down on the ground and arrested him for possession of narcotics. The accused was searched quickly for weapons, and when nothing was found he was seated on the sidewalk alongside Mok, who had also been searched. Then, in a face-to-face conversation, he advised Chanmany of his right to counsel, and engaged him in discussion.

[12] Asselin identified himself to the accused, and asked him to provide his name. When Asselin asked about the bag of cocaine, the accused denied being in possession of cocaine, or knowing the whereabouts of the gym bag.

[13] Asselin testified that he did not have his gun out during this encounter. The only force he used was the force necessary to get the accused out of the car and onto the ground. Neither man was handcuffed. Asselin said that there was no mistaking that this was a police event, and Chanmany understood that he was a police officer.

[14] Mancuso testified that he had participated in the arrest of Mok, and that he may have had his gun drawn initially. But as soon as he saw that things were under control, he holstered it. He did not point it at Mok. He did not hit anyone with his gun, nor did he see any other officer do so.

[15] Mancuso seized two cell phones from the accused’s front left pocket on the authority of a general warrant. Mancuso also completed records of arrest for the accused and Mok. He placed the word “draft” on them. According to him, this was his usual practice. An administrative person would later change the documents to “approved status” and enter it into the police system.

[16] Det. Cst. Steinwall testified that he first learned that the vehicle was to be stopped in a high risk takedown at 8:57 p.m. from Asselin over his radio. He took up a position behind the accused’s car. He did not come into contact with it. When the car was boxed in, Steinwall got out of his car and dealt with Mok, who was the driver. He took Mok out of the car while yelling “Police.” He placed Mok on the ground in a prone position. He did not place handcuffs on him. He told Mok that he was under arrest for possession for the purpose of trafficking, and started advising him of his right to counsel. When Steinwall asked Mok if he understood, Mok failed to respond, and Steinwall said nothing more. Steinwall seized a cell phone from Mok during his interaction with him. He never had his gun out during this encounter.

[17] After assisting with a pat down search of Mok, Steinwall left him with Detective Wolfe and assisted with the search of the vehicle. No cocaine was located in the car, and no gym bag was found. The accused and Mok were released at 9:07 p.m.

[18] As I have already noted, it was Asselin’s intention to release the accused and Mok even if drugs had been seized from the vehicle. If that had happened, the accused and Mok would have been left to wonder about it, and, Asselin hoped, this might have stimulated useful wiretap communications, as it had on other occasions. Asselin recognized that since no drugs were seized, the accused and Mok might have wondered whether or not he and his colleagues really were police officers. It was not his intention to leave this impression, but if Chanmany and Mok thought that they weren’t police officers, he was happy enough to let them think whatever they wanted to think, and to let any misimpression stand uncorrected.

[19] After the surveillance crew left the scene, uniform officers from 53 Division arrived in response to 911 calls placed to the police by persons who had observed the event. The officers were unaware of Project Blackhawk, and treated the event as a robbery. The matter was referred to the 53 Division Major Crime Unit. The accused and Chanmany were taken to 53 Division, and gave recorded statements to the officers. In his statement, Mok alleged that he had been struck in the face with a handgun. Both the accused and Mok told the officers that the persons who had stopped them had identified themselves as police.

[20] At the time, Myron Demkiw was the Detective Sergeant at 53 Division. He was off-duty and at home at the time of this event. When Asselin learned about the 53 Division investigation that evening, he called Demkiw sometime before 11:00 p.m. He told Demkiw that this had actually been an arrest, and that the officers had a general warrant to search the car. He wanted Demkiw to protect their anonymity in relation to the accused. While he had identified himself to the accused as a police officer and shown him his badge, he didn’t want him to know that this was a wiretap investigation, or to know where the police were operating from. While investigative stops happen routinely, there would be serious ramifications for the investigation if the accused knew of the existence of wiretapping. He didn’t want the accused to know that the officers were part of the provincial weapons unit, which was known to work wiretap investigations with drug and weapons components.

[21] In addition, if the accused thought that the men who had stopped him were not police officers, he didn’t want the misapprehension corrected, in hopes that the event would generate wiretap talk.

[22] Demkiw confirmed that he had received this call from Asselin. Upon being informed about what had happened, he agreed to assist in maintaining the integrity of the Blackhawk investigation, and thought that the persons involved should not be told about the general warrant. He called the officers involved in the robbery investigation and relayed some of Asselin’s information to them. He instructed his officers to continue to portray this as a robbery investigation, but not to put out alerts or otherwise raise the level of the investigation.

[23] The following morning, Demkiw provided copies of the video statements of the accused and Mok to Detective Shank and Detective Gurney, another officer involved in Project Blackhawk, along with investigative summaries.

March 18, 2008

[24] On March 18, 2008, the police surreptitiously executed a search warrant at the home of Danny Lee, who was a target of this investigation, and who had been seen meeting with the accused the previous day.

March 20, 2008

[25] On March 20, 2008, Ferguson videotaped Vongkosy carrying a box out of 1645 Sismet Road in Mississauga, the suspected location of a clandestine drug laboratory, and placing it into the trunk of his vehicle. Later, the box was observed being transferred to another vehicle. The police involved in Project Blackhawk had reason to believe that the box contained a quantity of drugs. Asselin, Ferguson and other officers conducted surveillance on the vehicle, and followed it to the Tillsonburg area. When the vehicle stopped for gas, the driver, Thongsay Phommavong, was arrested, the car was searched and the box was seized. It contained 45,000 ecstasy pills, with a value of about one million dollars. The driver was then released without charges.

[26] Shank testified that this seizure stimulated some helpful wiretap activity.

April 23, 2008

[27] On April 23, 2008, members of Asselin’s team seized one kilo of cocaine from a body pack. The person wearing the body pack was released without charges. This stimulated significant incriminating wiretap activity. Part of the stimulation stemmed from conjecture that the seizure might have actually been a robbery, or that the police might have been keeping the cocaine for themselves.

April 29, 2008

[28] On April 29, 2008, at 6:55 a.m., police officers observed a van parked at the rear of the previously mentioned premises at 1645 Sismet Road. A male was observed to exit the premises, place something in the van and drive away. The van was followed into Toronto. At 1:48 p.m., Shank, who was in uniform, performed a vehicle stop on the van. He immediately arrested two men in the van and asked them to identify themselves. He did not handcuff the two men, and left them in their seats while he conducted a search of the vehicle pursuant to a general warrant. The two men were using their cell phones while the search was conducted. Shank acted alone throughout this stop and search, but he was under surveillance and in communication with other officers.

[29] Shank discovered eight five-gallon buckets and four vacuum sealed bags of what turned out to be methamphetamine (a total of 52 kilos), and certain other items, and placed them into the trunk of his police vehicle. He said that the smell of these items was overwhelming. He realized the magnitude of the laboratory operation for the first time, and decided to release the men in the van whom he assumed were low level couriers. Dealing with the lab was now the priority. He then drove to a police facility about ten minutes away from the location of the seizure.

[30] Shank was not a drug squad officer, but he feared that the fumes from his seizure were toxic. He telephoned the clandestine laboratory unit of the Toronto Police Service, and was told to get away from his car, and leave the doors and windows open, because the material was probably toxic. Shank did as he was told. He left the vehicle open in the parking lot of the police facility, and stood nearby. A short time later, officers Amos and Chase, who were members of the clandestine laboratory unit, showed up with a hazardous material trailer. Chase took possession of the buckets and bags of methamphetamine, and gave Shank “an earful” for having placed this sort of material in his car. Shank turned his car in and never drove it again. He immediately proceeded to the Sismet Road laboratory to assist in the investigation.

[31] When Shank subsequently attempted to locate the two men who had been in the van, he learned that the driver had returned to China. He was unable to locate the passenger, and thought that the name this man had given him might be false.

[32] Immediately upon hearing of Shank’s seizure, other officers raced to 1645 Sismet Road. They had observed Vongkosy attend at that address numerous times, and on one occasion, the March 20, 2008 incident I have already described, he left the premises with what ultimately turned out to be one million dollars’ worth of ecstasy. As a result, by this time, the police were well aware that there was either a clandestine drug lab or storage facility at that address. Since the 52 kilos of methamphetamine seized on April 29 appeared to have come from the Sismet address, and since the occupants had used their cell phones during the search, it was imperative to get to Sismet as quickly as possible.

[33] When the officers entered Unit 13 at 1645 Sismet Road, they observed freezers, vats, mixers, material that was bubbling, a pill press with ecstasy tablets, drying rooms with powder on wood, drums and other equipment. There was a toxic-smelling odour, and it was impossible to breathe. Methamphetamine was seized from the premises, which was clearly an illicit laboratory.

[34] At 11:05 p.m. on April 29, 2008, Mancuso turned over property that he had seized from persons arrested at the lab to Steinwall. At around the same time, Shank turned over the items he seized from the van other than the buckets and bags of methamphetamine to Steinwall. Steinwall placed all of these items into a vault in the PWEU, to be processed later. He did not have anything to do with the buckets and bags of methamphetamine seized from the van. He swore that he would not keep 52 kilos of methamphetamine in his unit’s vault. Indeed, he said that he would not keep seven kilos there. He would only keep an amount that he could handle in the office. He said that the clandestine laboratory team deals with large drug labs.

May 7, 2008

[35] On May 7, 2008, Mancuso, Asselin and Ferguson were part of a team tasked with locating and conducting surveillance on the accused. Each member of the team was driving an unmarked police vehicle.

[36] At 8:58 p.m., Chanmany phoned Vongkosy. This private communication was intercepted. Vongkosy told the accused that he had just had dinner with his parents. The accused told Vongkosy that he was having a foot massage on “Sixteen.” The accused asked Vongkosy what he was doing later, and Vongkosy replied that he would probably be at home. He told the accused to give him “a shout if anything.” Chanmany said that he would give Vongkosy a shout when he was done “in a bit,” and Vongkosy said, “Just call me. Give me a call. I’ll be here for a bit.”

[37] It is important to recall that the accused and Vongkosy were also communicating with each other on their Blackberry cell phones at that time, and that the police were not able to intercept those Blackberry communications.

[38] At 9:15 p.m., Mancuso and Asselin observed a black Infinity FX SUV bearing Ontario licence BCXC 668 parked at 1550 16^th Avenue in the area of Leslie Street and Major Mackenzie Drive just north of Toronto. The vehicle was registered to Tony Chanmany, the brother of the accused, but had been observed being driven exclusively by the accused since March 13, 2008. He had been observed driving the vehicle on March 13, March 16, March 17, March 31, April 1, April 16, April 25 and April 30.

[39] After this observation had been made, Mancuso, Asselin, Ferguson and other members of the team proceeded to 1 Guinevere Court, the residence of Vongkosy’s parents, in the area of Yonge Street and Major Mackenzie Drive. The officers had information that the accused might be attending at this address that evening, and as a result Asselin was able to take up position there before the accused arrived. When he arrived, he observed Vongkosy’s silver Mercedes parked in the driveway.

[40] At 9:41 p.m., Asselin observed the accused arrive at this address, walk into the residence empty handed, and emerge at 9:52 p.m. carrying a bright yellow shopping bag and a dark coloured bag, both of which appeared to be full and heavy. The accused placed both bags into the rear seat of his vehicle and drove away.

[41] Mancuso and Asselin followed the accused away from this address with the assistance of a GPS device that had been attached to the Infinity while other officers, including Ferguson, remained at 1 Guinevere Court.

[42] At 10:18 p.m., D.C. Faiella observed a vehicle known to be associated with Vongkosy’s sister arrive at 1 Guinevere Court. The vehicle was parked next to Vongkosy’s Mercedes. While Faiella did not testify at trial, this observation is recorded in a Provincial Weapons Enforcement Unit Surveillance Report prepared by Ferguson in relation to the events of May 7 and 8, 2008 that was entered into evidence. Counsel for the accused agreed that I could take into account the observations recorded in it.

[43] At 10:21 p.m., three minutes after Vongkosy’s sister’s car had arrived, Ferguson observed Vongkosy leave the residence, enter his Mercedes SUV with licence number AZKK 722 and drive away. This was the only vehicle in the driveway at the time. Ferguson and other officers commenced surveillance on Vongkosy. They continued to follow Vongkosy until 12:30 a.m. the following morning. The details of their observations of Vongkosy throughout this period are contained in Ferguson’s surveillance report which in turn was based on his contemporaneous notes. I note that the locations of the observations of Vongkosy recorded in this report are entirely consistent with the content of Vongkosy’s communications that were intercepted throughout this time period.

[44] When Chanmany left the residence, he drove in a manner that Mancuso and Asselin considered to be consistent with counter-surveillance, including taking an indirect route to downtown Toronto, popping in and out of “unsensible” side streets, and increasing and decreasing speed. Because of this, the officers stayed back and “let him run,” following him downtown using GPS information rather than visual observation. As a result, they did not know his precise route downtown, but they stayed close, saw him occasionally, knew his approximate track, and knew when and where he stopped. They would have known if there had been a stop that was lengthy enough to permit the accused to leave and then return to his vehicle.

[45] Ultimately the accused parked his car in the entertainment district in downtown Toronto. The surveillance officers knew approximately where he parked and were able to find the SUV in a pay parking lot on the south side of Richmond Street near Widmer Street within a few minutes of his stopping. By the time they arrived, the vehicle was unoccupied. It is not clear what time it was when the two officers first saw the accused’s car. Mancuso said that it was after 10:00 p.m., but was unsure of the precise time. Initially, Asselin said that it was 11:25 p.m. but he agreed in cross-examination that it might have been closer to midnight.

[46] It was very busy in the entertainment district that night, and the parking lot was jam-packed. Mancuso and Asselin set up surveillance on the accused’s vehicle from outside the parking lot. While they didn’t have eyes on the vehicle every minute, they did not lose contact with the vehicle from the time they arrived until after 5:00 a.m. The accused did not return to his vehicle during this time, and no one else was seen attempting to enter it.

[47] Some time prior to 12:30 a.m. on May 8, Ferguson, who was still conducting surveillance on Vongkosy, was told to assist in the surveillance of the accused’s vehicle. He left his position at 12:30 a.m. and proceeded downtown. He was on site conducting surveillance by 12:55 a.m. Initially, he drove into the parking lot and observed the accused’s vehicle parked facing south on an incline in the parking lot close to the rear doors of a club. He then took up a position across Richmond Street in a location that permitted him to observe the parking lot’s sole exit.

[48] At 5:00 a.m. Asselin and Ferguson decided that it was time to execute a warrant that they had in their possession authorizing a search of the vehicle. Ferguson did not participate directly in the search. He drove his car to a location above the accused’s vehicle right up to the rear door of the club and remained in it while Mancuso and Asselin conducted the search. Ferguson parked his car in this manner so that anyone emerging from the club would not be able to see the accused’s vehicle being searched. While sitting in this location, Ferguson was able to see the accused’s car, the club door and the street. He observed Mancuso and Asselin approach the car, but he also was looking around for people. The Infinity’s windows were tinted, and as a result, Ferguson could not see where the other officers were when they entered the car.

[49] As I have noted, Mancuso and Asselin actually executed the warrant. Asselin picked Mancuso up in his car, drove into the parking lot and approached the accused’s SUV at 5:05 a.m. Mancuso testified that he smashed the rear driver side window to gain access to the accused’s vehicle. When he did this, the car’s alarm went off. He didn’t recall whether he or Asselin entered the car first, but Mancuso said that he did see two bags in the back seat, that they looked like they had laundry in them, and that he saw Asselin seize them, while he seized a laundry hamper with clothing in it and a black satchel from the back seat. He placed these items in Asselin’s car.

[50] Similarly, Asselin testified that he entered the back seat and seized two white laundry bags, one containing dirty clothes, and the other containing the yellow bag that he had earlier seen the accused place in his car. That bag contained several vacuum-sealed bags containing a powder which he thought was either cocaine or methamphetamine. He placed these items in his car.

[51] Mancuso testified that after making his seizure in the back seat, he wanted to enter the front seat to conduct a search there as well, but he discovered that he was unable to unlock the driver’s door from the inside. As a result, he smashed the driver’s window. When he did this, the glass fell in one piece, covering the controls, so he was only able to lean inside. In any event, he found nothing in the front seat and seized nothing from the front of the vehicle.

[52] I note that Asselin testified that it was his recollection that Mancuso smashed the driver’s window and then was able to unlock the rear door manually and that Mancuso entered the front door and he entered the rear door almost simultaneously. He didn’t pay attention to what Mancuso was doing, but he thought that Mancuso seized the hamper in the front seat. I do not think it is necessary that I resolve the differences in their recollections of these details of the search. I am satisfied that one of them has erred as a result of the passage of time, and that the errors do not bear on credibility. If I had to decide between the two versions, leaving aside for now the question of whether there actually was methamphetamine in the car, I would favour Mancuso’s, since he is more likely to remember accurately what he did: smash the rear window first, and find the hamper on the rear seat and not the front seat. Mancuso and Asselin do not differ in any significant way about what Asselin did.

[53] I note as well that Asselin testified that he seized two laundry bags, which he clearly distinguished from plastic garbage bags. However, the exhibits produced in Court were in fact plastic bags. Whether they should properly be called garbage bags, all-purpose bags or something else is debatable. But they are clearly plastic. In her argument, counsel for the accused took the position that Asselin was asserting that the bags were not plastic, and that this assertion supported her position that his evidence was a fabrication. I recognize, of course, that items of evidence should not be viewed in isolation. But on this point, I will say immediately that I consider this matter to be entirely inconsequential. It is understandable that Asselin might have thought of bags in the motor vehicle as laundry bags if one of them contained laundry. But in any event, the error, if there is one, is hardly an indication of fabrication. There is no doubt that the laundry was seized from the car, and there is no doubt that it was produced in a bag. If Asselin erred about the kind of bag the clothes were in, it does not undermine his evidence that he seized the laundry. It is similarly neutral with respect to the finding of methamphetamine regardless of how or when the methamphetamine became associated with a bag.

[54] Asselin and Mancuso left the area of the SUV at 5:08 a.m. in Asselin’s car, after a very brief three-minute search. Asselin then drove Mancuso to his car. On the way, Mancuso testified that Asselin told him that one of bags he seized contained a yellow bag with several bags of white powder.

[55] The three officers drove back to their office in three separate vehicles. Immediately after they left the area of the Infinity, Ferguson was advised that Mancuso and Asselin had found two bags, a laundry basket, a “man purse” and a yellow shopping bag full of vacuum-packed cocaine.

[56] Mancuso testified that he was back in the office at 6:00 a.m. and served as exhibits officer. He retrieved the items he had seized from Asselin’s car and examined them. He found $1,800 in twenty dollar bills in the black satchel. At 6:30 a.m. he received one of the bags seized by Asselin, and observed that it contained only clothing. At 7:00 a.m., he received the second bag seized by Asselin, removed a yellow bag that was inside of it and observed seven vacuum-sealed bags of powder inside the yellow bag. Ferguson was present in the office and he also observed the seven bags of powder. Mancuso placed the bags of powder along with the other exhibits in a secure police vault or floor safe in the Weapons Enforcement Unit.

[57] At 9:40 a.m. that same morning, Mancuso attended at 33 Division with the seven bags of powder, accompanied by Ferguson. Mancuso weighed the bags, which each weighed approximately 1 kilo, and took a sample from each one, all in the presence of a supervisor who was not involved in this investigation. Because each of the original seven bags had to be cut open to permit the taking of a sample, Mancuso repackaged the bulk in seven new plastic bags. Each of the samples was placed in a pre-numbered envelope, sealed and, at 10:20 a.m., logged into the 33 Division Divisional Locker Management System and placed into a secure locker for courier pickup. The seven bags of bulk powder were also logged into the system by being placed into a different secure locker. The envelopes were later delivered by depository box to a Health Canada laboratory where they were received in their sealed condition by an analyst who opened each envelope, analyzed each sample, and certified that the samples each contained methamphetamine.

[58] In the Provincial Weapons Enforcement Unit Surveillance Report prepared by Ferguson in relation to the events of May 7 and 8, 2008 that I have previously mentioned, and that was prepared on a date subsequent to those events, he wrote that “a decision was made to remove all of the items in the trunk area…” He was referring to the various items seized from the car. He testified that he obtained the content of the report from his contemporaneous notes. However, in those notes, there is no mention of the trunk. Ferguson could not explain why he made a reference to the trunk in the report. Remembering that Ferguson did not participate in the search, did not observe where the items were seized in the car, and that the error does not appear in his contemporaneous notes and was only made subsequently in a report, I see no significance to the error.

The Defence Evidence

[59] Velle Chanmany testified in his own defence. He is 32 years of age and was born in Saskatoon. He moved to Kitchener with his family when he was seven years old, and has lived in Kitchener most of his life. He has a high school education. He left home after finishing high school, and has worked for only three or four months in his life when he was 22, in his mother’s factory making bumpers. He has earned money by gambling and selling cocaine. He began selling ounces of cocaine in 2004, and then graduated to selling kilos by 2006. At times, he has sold multiple kilos. He stopped there because his customers could not afford more.

[60] When he was selling cocaine in 2006, he usually sold one or two kilos at a time, at a price of $25,000 to $30,000 per kilo. His cocaine was usually fronted to him by “Kevin,” and he sold it to others. He got in touch with the people he dealt with on cell phones and Blackberries. He had more than one at a time, and kept switching them so that the police could not get a hold of his contacts. He obtained phones in his brother’s name, but not in his own name. When he called people, he usually used short names, and not real names, and used coded language to pursue his drug trafficking business. For example, he used the word “files” for money and “girls” for cocaine. He usually employed runners to pick up cocaine from his supplier and to deliver it to his customers, but he picked up the money from his customers himself. However, he did transfer cocaine himself in his vehicle at times. Although he sold cocaine, he never used it. He denied ever selling methamphetamine.

[61] Chanmany recalled that sometime prior to 2007 he returned to his car from a club and found that the window had been smashed and that a black knapsack, a wallet and $2,000 had been taken. Then in late 2007 or early 2008, he came home to find that his residence had been turned upside down, but that nothing was missing. He believed that the police were responsible in each case. He said that he “thought that it was the cops that were always breaking into my places.”

[62] Chanmany recalled the police stop of Tanner McNeil’s vehicle on February 13, 2007. He said that McNeil was driving, his wife was in the front passenger seat and he was in the back. He noticed that they were being followed by a black truck. McNeil began making turns, and the truck followed. Ultimately they were blocked in and thrown out of the car. Chanmany’s phone was taken. The occupants were not arrested or handcuffed. He was placed against the car while it was searched. Nothing was found except cell phones. The searchers then drove off, leaving the occupants of the car behind.

[63] Chanmany denied eating a cell phone chip. He said that he snapped the chip from his cell phone before it was seized, and threw it on the ground. He didn’t remember if anyone collected it.

[64] Although the searchers never identified themselves, Chanmany said that he recognized them as the police officers who had hassled them before. He thought that Asselin might have been there.

[65] Chanmany also recalled the police stop of his vehicle on January 30, 2008. He said that Mok was driving, and that they were boxed in as they were stopping for a red light on Eglinton Avenue. He said that his car was bumped by the car in front and the car in the rear. One of the officers, who were all in plainclothes, pulled him out of the car. Several officers threw him to the ground where he remained, face down, for the whole time. One of the officers kept his weight on the accused’s back and told him not to look back. He said that he was able to see that one of the men had a gun drawn. Mok was placed beside him on the ground. Someone was on his back as well. None of the officers identified themselves, arrested him, cuffed him or read him his rights. At the time he wasn’t sure who these men were but realized that they were police officers after they left. However, he didn’t recognize any of the officers. He never saw any of their faces.

[66] While he was on his stomach, the accused said he could hear the person on his back saying, “Make sure you look everywhere in the car.” The incident lasted one to two minutes. At the end, the officers jumped into their cars and left. The accused wasn’t injured, but, he said, Mok had a welt on his head. Police cruisers arrived two minutes later. He was placed in a cruiser and taken to 53 Division where he made a statement. He was never called again by 53 Division.

[67] Chung Fai Mok also testified about the events of January 30, 2008. He gave an account similar to the account given by the accused. According to him, the police car that stopped in front of him rolled back and actually hit the accused’s car. As he was about to get out of the car, the police vehicle in the rear hit the accused’s car as well. Two officers then approached him on foot with their guns drawn, and one of them yelled “Police.” He was then removed from the car, placed on the pavement and told not to look back. He was held down, but not handcuffed. He was not told of his right to counsel. After that, he said that not much happened. None of the men who stopped the car communicated with him, and he was not allowed to look at them. He could hear the car being searched. He heard one of them say that there was nothing in there. The person holding him down said to check again, and check the back and underneath. He was asked, “Where’s the shit?” and replied that he didn’t know what they were talking about. He said that the whole event lasted less than five minutes, and he was kept face-down on the ground throughout. Ultimately he heard tires, looked up and saw that the men were gone.

[68] Mok thought that he was hit on the head by a gun or something when he was taken out of the car, and later had a big bruise. I do not think it is necessary to resolve the various conflicts in the evidence about this collateral event. I will say that I am satisfied that Mok was treated roughly, but was not hit with a gun or anything else.

[69] After he got up, Mok wondered what had been going on, wondered whether the men were really police officers, wondered if someone was trying to rob him and the accused and, if so, why they weren’t masked. Just as Asselin thought, he was confused. Mok and the accused decided to call the police, but before they had an opportunity to do so, a fire truck and a police cruiser arrived.

[70] The accused testified in chief that after this event, he was no longer involved in trafficking drugs. He felt that there was a lot of heat – that the “police were on us.” After January 30, 2008, he completely dropped everything. He remembered that date for dropping everything because the police were really aggressive that day, and he didn’t think he could continue doing what he was doing, although he remained in communication with the same people.

[71] With respect to the events of May 7, 2008, the accused began by explaining that he had known Vongkosy for four to five years before his arrest. He said that Vongkosy was 32 or 33 years of age. He met Vongkosy through friends at a lounge, and they in turn became friends. They began hanging out on weekends, and the accused went to Vongkosy’s parents’ home for dinner on occasion. They saw each other every weekend in 2008, went to clubs together, and spoke on the phone often.

[72] The accused was aware that Vongkosy was “up to something” because of the way he spent money, and because he wasn’t a “nine to fiver,” but he wasn’t too sure what. Vongkosy never sold him drugs or asked him to move drugs for him. The accused never discussed his drug business with Vongkosy. The accused denied ever being involved with methamphetamine or ecstasy, or ever being at the Sismet Road lab.

[73] With respect to the intercepted communication between himself and Vongkosy on May 7, 2008 at 8:58 p.m., the accused testified that the place where he was getting a foot massage was about five minutes from where Vongkosy was, and that they were discussing meeting each other, but for no real reason. They made no real arrangement to meet. The accused did in fact drive to Vongkosy’s parents’ residence after his foot massage. When he got there, as he was walking to the front door, he observed an unmarked vehicle he recognized as a police surveillance vehicle pass by the residence. He waited to see if the car turned around and passed by again, and said that it did.

[74] The accused said that when he got to Vongkosy’s front door, Vongkosy’s brother answered. The accused learned that he had missed Vongkosy, who had left. He didn’t ask Vongkosy’s brother where Vongkosy was, or call Vongkosy to see where he was, because he recalled that Vongkosy had told him that he might step out. The accused did not enter the house, and returned to his car and left.

[75] The accused said that he had nothing in his hands when he approached the house, and nothing in his hands when he left. In particular, he did not have a yellow bag. He assumed that the police would follow him when he left, and as a result he took counter-surveillance measures. He went through small streets on the way to Highway 404, and then sped a bit as he proceeded south on the highway, and drove aggressively, weaving in and out of traffic. He said that he did this “to buy myself more time.” Despite his asserted concerns about the police, the accused sounded quite calm in an intercepted telephone call with his girlfriend at 11:16 p.m., and expressed no concerns.

[76] The accused testified that he had decided to contact Mok to go drinking sometime after leaving Vongkosy’s residence, and had in fact made that arrangement with him. He figured that the police would follow him. As part of his effort to lose the police, the accused exited the highway at Richmond Street and proceeded west. He parked in a parking lot at Richmond and Peter Street at about 11:30 p.m., gave an attendant $20 and “jumped” in a cab and went to meet Mok at King City, a karaoke place at Dundas Street and Beverly Street. The accused said that he proceeded in this manner because it was the quickest way to ensure that the police would not know where he was going. When asked why he didn’t want the police to know where he was going, he replied that it was because he was going drinking at the time. However, at another point in his cross-examination, he testified that he thought that he had lost the police by the time that he parked his car. In any event, the accused said that he met Mok at the karaoke place and stayed there until 5:00 a.m. He then took a cab to Mok’s place in Richmond Hill rather than returning to his car and slept there. Mok confirmed that he met the accused on May 8, 2008 at King City karaoke and that they left after 3:00 a.m. and that the accused slept at his place afterwards.

[77] The accused got up the next morning at about 10:00 a.m., and took a cab back to his car, thinking to himself that he hoped that it hadn’t been broken into. When he got to his car at about 10:30 or 11:00 a.m., he discovered that the windows had been smashed. He said that he had left in the back seat a black Burberry bag containing a shaver, a bottle of cologne and $4,650 that he was supposed to give to a real estate agent for rent, as well as a laundry basket containing clothes. The money came from his savings from cocaine trafficking and gambling. When asked why he had left $4,650 in his car, he said that he didn’t really want to leave it, but wasn’t thinking about it when he jumped out of his car to get a cab. He only remembered the money when he was at the karaoke place. He explained that he had the laundry basket of clothes in the back seat of his car because at the time, his residence was getting broken into and as a result he was staying with friends and would launder his clothes in their residences. He said that he had no clothes in a separate bag. The accused denied that there was any methamphetamine in the car.

[78] The accused testified that when he discovered that his windows had been smashed, he got into his car and left the parking lot. He was sure that the police had broken into his car, particularly because they had been following him the night before. As he left the lot, he made a series of telephone calls. He said that he first called his lawyer, John Christie, and then he called Elsa, his real estate agent, to report that the money he was going to deliver to her had been taken from his car. This call actually took place at 12:35 p.m., and was recorded. During this call, the accused told Elsa that he couldn’t meet her with the money because his car had been broken into and everything in the car was gone. Suddenly, he told Elsa to hold on one second, and then said, “Oh my goodness.” He then told Elsa he would call her back, and ended the call. The Crown alleges that this was the precise moment that the accused discovered that his methamphetamine had been taken. In his evidence, the accused could not explain what had happened at that point in time.

[79] Ultimately, the accused was able to get the money he needed to pay the rent, and delivered it to Elsa. He then drove to the area of Elgin Mills and Yonge to get the broken windows on his car replaced. He left his car there, and then made a series of calls to his friends complaining that the police had broken into his car and taken his money. In none of these calls does the accused say that drugs were also taken. I view the absence of any reference to drugs as unsurprising. Assuming that the police did seize drugs from his car, it would have been most unlikely that the accused would mention it on the phone. After all, he clearly knew that he was under police surveillance, he believed that the police had broken into his car, and he was always careful on the phone, obviously thinking that he might also be the subject of audio surveillance. Finally, the accused got his money to Elsa, and took a taxi to his mother’s home in Guelph.

[80] The accused’s examination-in-chief commenced on February 5, 2013, and was closed at the end of the day. However the next morning, his counsel asked to be permitted to re-open his evidence, because the accused had a correction to make. Immediately upon resuming the witness box on February 6, the accused volunteered that he had made a mistake in his evidence. Despite his certainty on February 5 that after January 30, 2008, he completely dropped all drug trafficking activity, he now said that he actually continued to traffic in cocaine until a break-in at Danny Lee’s place on March 18, 2008. He felt really bad about this break-in, because Lee just had a “regular working job.” Even after the March 18 break-in, the accused testified that he continued to collect drug debts – money owed to him for drugs and being paid little-by-little on a payment plan. With regard to his error, the accused said that he just got mixed up with dates. Crown counsel then commenced cross-examining the accused.

[81] In cross-examination, the accused was asked about intercepted private communications that appeared to disclose drug trafficking activity by him after January 30, 2008, and even after May 7, 2008. His explanations were neither candid nor reliable. In short, they were efforts to avoid the truth and support his defence to the charges before me. For example, he was asked about a telephone call with his brother on April 6, 2008, and a second one with his sister, in which it appeared that the accused was still supplying drugs to them despite saying that he had stopped trafficking in March. The accused admitted that he was supplying them with cocaine, but that these were only gram transactions. He “explained” that when he said that he stopped trafficking after March 18, he meant that he had stopped trafficking in kilos and ounces, not grams.

[82] The accused was also asked about two communications with his girlfriend Kana Funaka on May 22, 2008, one of which immediately followed the other. He asked Funaka if she remembered “that thing … in a red bag” in the cupboard on the top of the fridge. He told her to find it and give it to Mok’s girlfriend, who was with her, so that she could give it to Mok. Initially, Funaka found the red bag, but told the accused that it was empty. She then found the contents in the cupboard. The accused was careful not to identify the contents on the phone, and not to let Funaka do so. Chanmany had previously testified that he was not involved in drug dealing with Mok. He now conceded that Mok, like him, was a kilo level cocaine dealer, but not in association with him. The accused had previously testified that he used bags to transfer his drugs. When it was suggested to him that the bag contained cocaine, he denied it, and said that it contained $5,000 he owed to his supplier. He claimed that he was no longer selling drugs, but that he was still collecting and delivering drug debts. He could not explain why he would be giving his drug debt to Mok to deliver to his supplier.

[83] I have absolutely no doubt that the accused was transferring cocaine to Mok, and that his active drug dealing had not stopped even after May 7, 2008. If all that he was asking Funaka to find in the cupboard was money, there was no reason to conceal its character on the telephone, even if the money was the proceeds of drug dealing.

[84] The accused also admitted in cross-examination that he needed multiple cell phones in order to conduct his trafficking business. But in a private communication intercepted April 22, 2008, well after he said that he had stopped trafficking, at least in a major way, the accused ordered three new Blackberry cell phones from someone named Albert.

[85] The foregoing is but a sample of the problematic intercepted communications the accused made after he said that he had ended his drug trafficking activity.

[86] John Christie, the accused’s former lawyer, also testified for the defence. In the course of giving evidence, regardless of the questions actually asked of him, he seemed determined to air his grievance with the Crown that he was forced to remove himself from the record in this case after the accused’s bail hearing because of an alleged conflict.

[87] Christie said that during a year or more prior to the arrest of the accused, the accused had consulted him when “his person and property” and the property of his friends was the subject of police actions. He said that the both he and the accused were concerned about the accused’s personal safety at the hands of the police.

[88] Christie specifically recalled that the accused had provided two licence plate numbers to him around April 1, 2008, that the accused said were on cars that were following him regularly. Christie did a search and ascertained that the plates were registered to a leasing company in Oshawa, but he could find nothing about this company on the internet. He did determine that the leasing company’s address did not exist, and that there were liens on the vehicles in question. He advised the accused that this was consistent with an undercover police operation. I accept this evidence, although I must say that this seems to me to be, at the least, an odd service and still odder advice to be providing to a client.

[89] Christie also recalled receiving a telephone call from the accused on May 8, 2008. The accused told him that his car had been vandalized and broken into and a “small” amount of money taken. He said that the two of them concluded that it was done by the police.

[90] After hearing the evidence of Christie, I can only conclude that it was wise for him not to represent the accused in this matter.

Concessions

[91] I note that the accused made two important concessions in this case: first, that if he were in possession of seven kilos of methamphetamine, it could only be for the purpose of trafficking; and second, that he was in possession of the money taken from his car, although he says that it was considerably more than $1,800, and that it was the proceeds of trafficking in cocaine.

The Re-Opening of the Evidence

[92] On February 11, 2013, after hearing argument, I reserved judgment, and adjourned this case to April 5, 2013 for judgment. On February 21, 2013, counsel for the accused filed an application to re-open the trial. The background to this application bears reciting.

[93] During cross-examination, Crown counsel challenged the accused’s account of his whereabouts after he left his car in the parking lot at Richmond and Peter Street at about 11:30 p.m. on May 7, 2008. After the accused testified, Crown counsel became aware that it was possible to determine the location of the cell tower or towers through which cellular telephone communications are routed, and as a result, to determine the range of possible locations of a cellular telephone at the time that a communication is made. On February 14, 2013, Crown counsel sought and obtained the records disclosing this information in respect of the accused. Upon examining the information, she realized that it appeared to support the position of the accused about his whereabouts after 11:30 p.m. on May 7, 2008. Most commendably, Ms. Egan forwarded this information to counsel for the accused the following day, and advised her that the information appeared to be consistent with the accused’s evidence and inconsistent with the suggestion that Ms. Egan had put to the accused.

[94] After receiving this information, counsel for the accused asked for similar information respecting the communications of Vongkosy on May 7, 2008 between 9:00 and 11:00 p.m. Crown counsel immediately obtained that information and provided it to counsel for the accused.

[95] Counsel for the accused then asked Crown counsel if she would consent to the re-opening of the case to place this cell tower data before me. Crown counsel indicated that she would consent. Soon after counsel appeared before me on notice asking that I re-open the case. I agreed, and immediately ceased preparing my judgment.

[96] I heard the new evidence on March 19, 2013. I will not recite the content of the records relating to the whereabouts of the accused on May 7 and 8, 2008, but will simply say that it is consistent with his evidence of his whereabouts throughout that period. I will summarize the new evidence concerning Vongkosy’s whereabouts on May 7, 2008.

[97] Rogers Communications has a vast network of cell sites (commonly called cell towers) throughout the area it services. When a Rogers cell phone is used to send or receive a phone call or text message, the call or message will be “handled” by one of these cell sites, which connects with the cell phone via radio waves. Because radio signal strength diminishes with distance, the network is designed to work on the premise that a call will be handled by the cell site closest to the cellular telephone. As a result, each cell site has a defined coverage area, but the coverage area of cell sites that are close to each other overlap. This permits calls to be made even where high volume, topography, elevation or inclement weather blocks transmission of a cellular signal between a cell phone and the nearest cell site. In such a case, the cellular telephone will try another site. The closest site and the alternate site must be quite close to each other, because the alternate site must have a signal that is within five decibels of the closest site.

[98] In this case, there were at least eight cell sites within range of 1 Guinevere Court. The closest cell site to 1 Guinevere Court was on Major McKenzie Road. An interception call log prepared by the police based on information provided to them by Rogers was placed in evidence before me. There is no issue about the accuracy of the information in it. This log lists the calls and text messages made or received on one of Vongkosy’s cell phones from 6:03 p.m. to 9:51 p.m. on May 7, 2008.

[99] From 7:13 p.m. to 9:51 p.m., all of the calls and texts made from or received on Vongkosy’s cell phone utilized the cell site on Major McKenzie Road at Bathurst St. except two.

[100] First, at 7:27 p.m., a text message utilized a cell site at 9050 Yonge Street. But a telephone call on that phone one minute and twenty-six seconds earlier utilized the Major McKenzie site, as did another call made less than one minute after the text message. There were several other sites that were closer to 1 Guinevere than 9050 Yonge St. at the time.

[101] At 9:51 p.m., a time when, according to the police, the accused was inside the Vongkosy residence, a cell phone call was made on Vongkosy’s phone that utilized a cell site at 33 Station St. That site is within range of 1 Guinevere, but there are several sites closer to 1 Guinevere than 33 Station St. I note, for example, based on an examination of the map of the cell sites, that 9050 Yonge St. appears to be closer to 1 Guinevere than is 33 Station St.

[102] It was the opinion of Danielle Fortier, a Senior Investigator in the Law Enforcement Support department of Rogers, who has 17 years of experience in the cellular telecommunications industry and a wealth of knowledge and experience in relation to many relevant topics, including the functioning of the Rogers network and its towers, that it is unlikely, but not impossible, that a call or text using a cell phone at 1 Guinevere would be transmitted through the 33 Station St. tower. On the other hand, it cannot be doubted that the 7:27 p.m. text message was sent or received at 1 Guinevere, but was transmitted through the 9050 Yonge St. cell site.

[103] A recording of Vongkosy’s communications intercepted on May 7 and 8, 2008 was filed in evidence. Of particular significance, the call at 9:51 p.m. was recorded. In it, Vongkosy was speaking to a woman named Codruta Rosca. When Rosca asked Vongkosy what he was doing, he replied that he was at a friend’s house but was on his way home. When Rosca asks him “Which friend?” he replies, after some hesitation, “Uh … Alan.” It is impossible to resist the conclusion that Vongkosy was lying about where he was, but there is nothing in the communication itself that would suggest that Vongkosy was lying about not being home.

[104] Counsel for the accused asks me to draw the inference that Vongkosy was in fact not at 1 Guinevere between 9:41 p.m. and 9:52 p.m., when the accused undoubtedly was there. I am inclined to the view that Vongkosy was not there at the time. I say this because of the evidence of Rosca and the content of the call, taken together with Chanmany’s admission that he was there at the pertinent time, but his assertion that Vongkosy was not. I note that Chanmany gave this evidence without any knowledge of the tower records.

[105] Of course, assuming that Vongkosy was not at his parents’ house when the accused was there on May 7, that fact does not preclude the possibility that the accused picked up a yellow bag of methamphetamine at the house, perhaps given to him by Vongkosy’s brother. No police officer testified that they saw Vongkosy at the time. But counsel says that I should conclude that the police are lying about their observations nonetheless. She says that they lied about seeing Vongkosy’s Mercedes in the driveway, hoping to advance their case by giving the false impression that Vongkosy was at his parents’ home. In fact, she asks me to infer that he was in his car and away from the home when he made the call at 9:51. She further says that the surveillance officers who were left behind undoubtedly saw Vongkosy return home prior to leaving at 10:24 p.m., either in the Mercedes or otherwise, but dishonestly omitted it from their notes for the same reason.

[106] I do not accept any of this reasoning. There can be no doubt that Vongkosy was at his parents’ home at 8:58 p.m. when Chanmany called him while having a foot message. Vongkosy likely did not leave the home immediately, because he told Chanmany that he would probably be home later, and that he would “be here for a bit.” And I see no reason to doubt that Vongkosy had returned by 10:24 p.m. As a result, Vongkosy could have been away from the home for no more than one hour and twenty-six minutes, and was probably away for considerably less time than that. It is quite conceivable that he did not leave his parents’ home in his Mercedes. He may have been picked up by a friend. He may have taken his sister’s car, and returned in it at 10:21 p.m. He may have been driven somewhere by his sister, in her car, again returning at 10:21 p.m. While there is nothing in the evidence that could support a finding of fact about how Vongkosy left his parents’ home and how he returned, there is also nothing in the evidence that leads me to doubt the truthfulness of the evidence of Asselin that he saw the Mercedes in the driveway at 1 Guinevere at 9:41 p.m.

[107] Nor do I find it significant that the surveillance officers who remained in the area of 1 Guinevere after Chanmany left did not report seeing Vongkosy return. The idea that they supressed such an observation in an effort to make it appear that Vongkosy had never been away is far-fetched to say the least. It is obvious that a surveillance officer who does not wish to be identified by his or her target would not ordinarily take a stationary position in front of a house on a residential street in order to make observations at that address. Even if a surveillance officer did take a stationary position, it would likely be at a distance from the residence, perhaps without a direct view of the front door. Of course, there is no evidence in this case of how the surveillance was conducted at 1 Guinevere after Chanmany left. I mention these possibilities simply to make the point that on the record before me, I see nothing suspicious about the fact that no one observed Vongkosy return home.

ANALYSIS

[108] I turn at last to a consideration of whether the Crown has satisfied me beyond a reasonable doubt that the accused had methamphetamine in his possession for the purpose of trafficking.

[109] In this case, there is no need for me to review the elements of the offence of possession for the purpose of trafficking. There can be no doubt, and there has been no suggestion, that if the yellow bag containing methamphetamine was in the accused’s car when the police broke in at 5:05 a.m. on May 8, 2008, then the accused was in possession of that methamphetamine for the purpose of trafficking. If the methamphetamine was in the car, the only rational conclusion could be that the accused knowingly received the methamphetamine in the yellow bag at the Vongkosy residence and placed it in his car for the purpose of furthering its distribution. Again, there is no suggestion otherwise. The sole issue is: has the Crown established beyond a reasonable doubt that the methamphetamine was in the car.

[110] It is the position of the accused that the police had acquired the drugs from the van in which they acknowledge seizing 52 kilos of methamphetamine on April 29, 2008, and that they falsely attributed it to the accused. But of course the accused need not prove this. The onus of proof is on the Crown to establish that the accused is guilty of this offence beyond a reasonable doubt.

[111] I will begin by considering the evidence of the accused. The accused denied that there was any methamphetamine in his car when he parked it and left it locked in a parking lot at Richmond and Peter Street at about 11:30 p.m. on May 7, 2008. Needless to say, if I believe this evidence, then I must acquit him. Even if I don’t believe this evidence, I must acquit the accused if his evidence leaves me with a reasonable doubt. Otherwise, I must go on to determine whether the totality of the evidence satisfies me of his guilt beyond a reasonable doubt.

[112] There can be no doubt that the accused told the truth about many things in his evidence. Indeed, I am of the view that he told the truth about his whereabouts throughout the crucial period of May 7 and 8, 2008. He was also candid about his cocaine trafficking activity. Nonetheless, when it comes to the real issue in this case, that is, his involvement with methamphetamine on May 7 and 8, 2008, I am unable to accept his evidence, and it does not raise a reasonable doubt in my mind.

[113] There are many reasons for this, but one looms particularly large. In this case, the intercepted private communications made it impossible for the accused to credibly pretend that he had not been an active drug trafficker at a significant wholesale level during the period of this project. He did not make that mistake. But, in my view, he did make a concerted effort to conceal his on-going drug trafficking activity that continued up until, and even after the time of this alleged offence, in an effort to make it seem unlikely that he would have committed this offence. His denials turned out to be demonstrably false. I have already described the evidence that leads me to this conclusion, but I will summarize it again briefly.

[114] In his examination-in-chief, the accused admitted that he began selling ounces of cocaine in 2004, and graduated to selling kilos by 2006. At times, he has sold multiple kilos. When he was selling cocaine in 2006, he usually sold one or two kilos at a time, at a price of $25,000 to $30,000 per kilo.

[115] Chanmany said that sometime prior to 2007, he returned to his car from a club and found that the window had been smashed and a black knapsack, a wallet and $2,000 had been taken. In early 2007, he was stopped and searched in Tanner McNeil’s car and his cell phone was seized. Then in late 2007 or early 2008, he came home to find that his residence had been turned upside down, but that nothing was missing. He came to believe that the police were responsible in each case.

[116] Chanmany also recalled the stop of his vehicle on January 30, 2008 in the company of Mok. The persons involved bumped his car, treated him and Mok roughly and searched the vehicle. Once again he concluded that the perpetrators were police officers.

[117] The accused testified that he felt that there was a lot of heat on him and his associates, and that the police were “on” them and were becoming really aggressive. As a result, after January 30, 2008, he ceased his involvement in drug trafficking. After January 30, 2008, he completely dropped everything. He remembered that date for dropping everything because the police were really aggressive that day, and he didn’t think he could continue doing what he was doing.

[118] The definitiveness of this evidence was noteworthy to me. The accused gave a precise date for ceasing to traffic in drugs, and a compelling reason for remembering that date. If he was being truthful, it is hard to imagine that he could have been mistaken about the decision he said he made, and the date on which he made it. But I am satisfied that he was not at all truthful about stopping his drug trafficking activity.

[119] The credibility and reliability of Chanmany’s evidence would have been undermined simply because he changed his explanation about when and why he terminated his drug trafficking activity so dramatically in the course of testifying after initially being so definitive. To repeat, first, he said that he had he completely dropped all drug trafficking activity after January 30, 2008. Then, he said that he had stopped trafficking after March 18, 2008. Finally, he said that he had stopped trafficking in a major way after that date, but continued to traffic in grams, and collect and deliver old debts. These changes were not the product of an improving memory. They came about as the accused slowly realized that he could not hold his various positions in the face of what was disclosed by the intercepted private communications.

[120] But I would go further. It is plain to me that the accused, motivated by greed and a desire to maintain his life style while continuing to refuse to actually do any honest work, continued to actively engage in significant drug trafficking long after he knew that he was the target of a police investigation. For this reason, and others, I am utterly unable to accept the evidence of Chanmany when he denies having 7 kilos of methamphetamine in his car on May 7 and 8, 2008. He did not come close to telling the truth about the extent of his involvement in drug trafficking. There is no reason to imagine that he is telling the truth about his involvement in drug trafficking on May 7 and 8, 2008.

[121] I have other reasons for not believing the accused as well as this. I will mention one.

[122] The accused describes himself as a kilo level cocaine dealer during the time leading up to this alleged offence – a major drug trafficker by anyone’s definition. Vongkosy was an even bigger drug dealer, involved in the manufacture and distribution of methamphetamine. The accused testified that he had known Vongkosy for four or five years, and that they had become good friends. They hung out every weekend in 2008, going out to eat and meeting at clubs. The accused also went to Vongkosy’s parents’ home for dinner. But the accused said that he never did a drug transaction with Vongkosy. Because of the way Vongkosy spent money while not being a “nine to fiver,” that is, not having a job, Chanmany knew that Vongkosy was “up to something” but he wasn’t sure what. Vongkosy never asked the accused to move drugs for him, and the accused never discussed his drug business with Vongkosy.

[123] This careful separation between the accused’s cocaine business and Vongkosy’s methamphetamine business is of fundamental importance to the accused’s defence. But it is not credible. The idea that these two good friends, both “unemployed” but big-spending large-scale drug dealers, socialized on a regular basis but never mixed business and pleasure simply doesn’t ring true. I consider this to be another instance of the accused fabricating evidence to avoid being convicted.

[124] I do not believe Chanmany’s evidence when he says that he did not have methamphetamine in his car on May 7 and 8, 2008, and his evidence does not raise a reasonable doubt in my mind. The case falls to be decided on the question whether I am satisfied of his guilt beyond a reasonable doubt based on the remaining evidence, and in particular the evidence of Asselin and Mancuso. I turn next to that evidence.

[125] I do not for a second presume that a police officer would not frame an innocent person, however distasteful that possibility may be. But I must concede that the idea of an officer obtaining seven kilos of methamphetamine from some other source and then falsely attributing it to an innocent person is a big bite to chew. I do not presume that it could not happen, but it is an unlikely scenario. Nonetheless, in this case, there is a source for Asselin to have obtained seven kilos of methamphetamine to falsely attribute to Chanmany – the large methamphetamine seizure on April 29, 2008. However implausible it may be, it is not impossible. Still, to have done so, particularly given the checks and balances of the drug repository system, would have required either large-scale police corruption, or incredibly clever misfeasance on the part of Asselin, with the ready and unplanned cooperation at the very least of Shank. There is not a tittle of evidence of either in this case, but it remains a possibility. But a possibility is a far cry from a reasonable doubt. What else is there in this case that could raise a reasonable doubt?

[126] Of course, there are many small matters that are said by the defence to undermine the police evidence: Why did Asselin call the bags that he said he removed from Chanmany’s car laundry bags rather than plastic bags? Why did Asselin think that Mancuso seized the hamper in the front seat of the accused’s car, and not the rear? Why did Ferguson say in the property report that the yellow bag came from the trunk? Why didn’t Shank do a better job of investigating the men on the van on April 29? However, these sorts of inconsistencies and anomalies don’t trouble me at all in this case. For the most part, if anything, they bespeak small errors in recollection. They do not support the existence of a grand conspiracy to fabricate evidence, or even a small one, and they don’t point in the direction of reasonable doubt.

[127] The more significant pillars of the defence argument are these:

• The police had a motive to fabricate a case against Chanmany. They believed that he was heavily implicated in drug trafficking, but were unable to catch him at it. The became frustrated as a result of their failures, notably on February 13, 2007 and January 30, 2008.
• The interceptions of Chanmany’s private communications are consistent with cocaine trafficking, not methamphetamine trafficking.
• Even if Chanmany was a methamphetamine trafficker, since he knew that he was the subject of physical surveillance and perhaps audio surveillance as well, he would not have risked carrying seven kilos of methamphetamine in his car on May 7, 2008.
• Further, it is highly unlikely that the accused would leave seven kilos of methamphetamine in the back seat of his car in a public parking lot.
• In Chanmany’s wiretapped reactions to the breaking in of his car, he is remarkably cool, and mentions only the loss of money, not drugs. This is inconsistent with guilt.

[128] I have carefully considered these arguments. To me, none of them undermine the reliability of the core of the police evidence (Chanmany received the yellow bag of methamphetamine from Vongkosy’s residence and left it in the rear seat of his car where it was seized by Asselin), and none of them leave me with a reasonable doubt about the guilt of the accused.

[129] I begin with the first point. The officers that were asked all denied feeling frustrated at not catching Chanmany with drugs. Even accepting that some or all of them felt some frustration, it is a huge leap from frustration to fabricating a seven kilo seizure of methamphetamine. It would take a lot more than frustration to move most people to such an enormous act of corruption. The fact is that in this case, the police had reason to be proud of their work. They had taken down an important methamphetamine lab, made an enormous seizure of finished product, and had successfully arrested several people. The accused was just one of the targets of the investigation that had not been arrested. There is nothing in this that logically would have led any of them to do what the defence alleges. I cannot find in this a real motive for a large-scale conspiracy to fabricate a case against the accused.

[130] Next, does the evidence suggest that the accused was exclusively a cocaine trafficker, thereby undermining the trustworthiness of the police evidence? No doubt the accused was, just as he says, a busy kilo level cocaine trafficker. He had a supplier and customers. But nothing in this precludes his involvement in delivering methamphetamine for his close friend and fellow drug dealer, Vongkosy. I bear in mind that the accused’s Blackberry private communications, whether with Vongkosy or others, were not the subject of interception, and that some of his intercepted communications could have related to methamphetamine, but the police were simply unable to penetrate his code. The absence of interceptions painting the accused as a methamphetamine trafficker does not undermine the Crown’s case.

[131] Turning to the next point, it is undeniable that Chanmany was aware that he was the subject of a police investigation, and that he was, at times, the subject of police surveillance when in a motor vehicle. There is no question that it would have been risky for him to transport drugs in his car at that time. Nonetheless, the fact is that the accused continued to traffic actively in drugs during this time period, and, I have found, continued to traffic in large quantities of drugs. Without question, drug trafficking is a risky business. But for a man with a life style to keep up, an aversion to “nine to five” work and no other apparent means of support, it was obviously a risk worth running for Chanmany, even knowing that he was under investigation.

[132] What is more, his actions were consistent with the acts of a man who was taking just such a risk. He engaged in well-practiced counter-surveillance measures when he left Vongkosy’s house allegedly with his bag of methamphetamine, with such a degree of skill that the police found it necessary to abandon much of their visual surveillance and rely on GPS information. It is impossible to understand why Chanmany would go to this trouble, unless he had contraband in his car that he wanted to keep from the police. Indeed, he admitted in evidence that he engaged in counter-surveillance. He said that he drove through small streets as he headed east to Highway 404, sped a bit as he headed south, and drove pretty aggressively, weaving in and out. When asked in examination-in-chief why he drove in this manner, he replied, tellingly, “To buy myself more time.” He had no need to buy himself time unless he was carrying contraband, and wanted to escape from the police. When he finally got to the parking lot, he said he parked, gave the attendant twenty dollars, and “jumped into a cab.” He obviously did all of this to avoid apprehension, and to ensure that if his contraband was seized, he wouldn’t be present to be associated with it.

[133] Further, with respect to next point made by the defence, in my view, in the circumstances Chanmany found himself in when he arrived in the parking lot, it makes perfect sense for him to have knowingly abandoned the methamphetamine in his car. What were his alternatives? He could have remained with the drugs, and, as I have stated, risked being found with the drugs if the police found his car and seized them. He could have walked along Queen Street carrying seven kilos of methamphetamine, but this would probably have been an even riskier alternative than the one he chose. Or he could have done what he did – abandon the drugs in hope that he had lost the police and that the drugs would therefore not be seized, and in any event ensure that he wasn’t present if they were. He made what was, in my view, the best choice he could, but in any event what was clearly a logical one.

[134] I end with the last point: were Chanmany’s intercepted reactions to the break-in of his car consistent with innocence? In my view, in the circumstances, they were simply what one would expect. Even under the trying circumstances, he was not so foolish as to discuss the disappearance of drugs from his car on the telephone. He kept his emotions under control, displayed no panic, and mentioned only the disappearance of his money. I have already noted that it is undeniable that Chanmany was aware that he was the subject of a police investigation. The interceptions make it clear that he was firmly and correctly of the view that the police had broken into his car. Anyone deeply enmeshed in the drug trafficking industry, as Chanmany admits he was, would inevitably be aware that the police intercept the private communications of drug dealers that they are investigating, and care must be taken about what is said on the phone. In addition, in this case, there is good reason to believe that the accused was in fact suspicious that he was the target of police wiretapping. When he had to deal with his drug customers and associates on his cell phone, he did so in coded and guarded language, and often avoided being explicit. For example, he referred to cocaine and drug payments as “files” (March 13, 2008), “things” (March 14, 2008, March 16, 2008 and April 6, 2008), “a one” and “paper” (May 10, 2008). Similarly, in a conversation with his girlfriend on May 22, 2008, he was very careful not to say, or permit his girlfriend to say, what was inside a bag that he wanted her to give to Mok’s girlfriend.

[135] In the end, I am satisfied that Mr. Chanmany was a lazy and greedy young man who had an aversion to work, but was attracted to living well. By his own admission, he was an active wholesale cocaine trafficker and carried on with this activity even in the face of considerable risk. On the basis of the evidence of Asselin, Mancuso and Ferguson in particular, viewed in the context of the remainder of the evidence, I am satisfied beyond a reasonable doubt that on May 7 and 8, 2008, Chanmany took possession of seven kilos of methamphetamine directly or indirectly from Vongkosy, intending to traffic in them by delivering them to a person or persons unknown, again despite the risk. I am satisfied that he is guilty of both offences in the indictment.

DISPOSITION

[136] I find the accused guilty of counts one and two in the indictment.

M. Dambrot J.

Released: April 5, 2013

COURT FILE NO.: CR-10-90000169-0000 DATE: 20130405

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

VELLE CHANMANY

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: April 5, 2013