COURT FILE NO.: 1-609541
DATE: 20140424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WEI TING ZHANG
C. Greene & S. Egan, for the Crown
S. Stafford, for the Defendant
HEARD: April 2-4, 9-12, 15-18, 23-25, May 6-9, 16 and August 21, 2013
reasons for judgment
GARTON J.:
Table of Contents
Para.
Introduction
[1]
Overview of the Investigation
[4]
The Surveillance Evidence
October 20, 2009
[12]
October 21, 2009
[19]
November 6, 2009
[24]
November 10, 2009
[30]
November 18, 2009
[34]
November 23, 2009
[35]
November 27, 2009
[39]
December 1, 2009
[45]
December 5, 2009
[48]
December 11, 2009
[52]
January 3, 2010
[54]
January 6, 2010
[56]
January 9, 2010
[58]
Agreed Statement of Fact: Evidence of Sabanie Choi
[60]
Execution of the General Warrants
[67]
October 30, 2009
[70]
November 18, 2009
[76]
December 10, 2009
[87]
January 7, 2010
[95]
Execution of the Search Warrant at Unit 11 on January 13, 2010
[102]
Execution of the Search Warrant at 22 Blue Eagle Trail on January 13, 2010
[105]
Evidence of Sgt. Doug Culver
[122]
Evidence of Wei Ting Zhang
Background
[131]
Introduction to the Drug Business and Resulting Criminal Conviction
[136]
Relationship with Yi Fai Chan
[143]
Relationship with Yiu Chuen Chan
[148]
The Moving of Items by Yiu Chuen Chan and Yi Fai Chan into Mr. Zhang’s Garage
[151]
The Moving of Items from Mr. Zhang’s Garage to Unit 11 on October 20 and 21, 2009
[155]
Renovations at 150 Milner Avenue, Unit 11
[159]
Mr. Zhang’s Key to 150 Milner Avenue, Unit 11
[172]
Locations and Materials at150 Milner Avenue, Unit 11
(i) The hidden room
[177]
(ii) Barrels, containers, and strainers
[180]
(iii) Shelving in the drying room
[185]
(iv) The two pill presses in garbage bags behind the stairs
[186]
(v) The front office (Office #1)
[189]
(vi) The plastic water bottle with two straws
[190]
Drug Usage at 22 Blue Eagle Trail
[198]
Mr. Zhang’s Suspicions about Illegal Activity at 150 Milner Avenue, Unit 11
[203]
Mr. Zhang’s Entries in his Notebooks and his Association with Ah Fung
[209]
(i) Mr. Zhang’s testimony on April 24, 2013 re chemical names in his notebooks and papers
[214]
(ii) Mr. Zhang’s testimony on April 25, 2013 re chemical names in his notebooks and papers
[220]
(iii) Mr. Zhang’s testimony on May 6 and 7, 2013 re chemical names in his notebooks and papers
[228]
(iv) Mr. Zhang’s testimony on May 8, 2013, re chemical names in his notebooks and papers
[233]
Mr. Zhang’s Testimony re References to Sodium Bicarbonate in his Notebooks
[239]
Logos
[243]
Mr. Zhang’s Testimony with respect to Games
[251]
(i) The black notebook entries (Exhibit 30(e))
[253]
(ii) The red notebook entries (Exhibit 30(d))
[259]
(iii) The black notebook entries (Exhibit 30(f))
[273]
(iv) Loose-leaf pages
Exhibit 30(b)(i)
[301]
Exhibit 30(b)(iii)
[303]
Exhibit 30(b)(ii)
[306]
Exhibits 30(b)(iv) and (vii)
[307]
Exhibit 30(b)(ix)
[310]
Evidence of Mary Li
[322]
Yi Fai Chan
[326]
Yiu Chuen Chan
[328]
The Moving of Yiu Chuen Chan’s Property into the Garage at 22 Blue Eagle Trail
[330]
Ah Fung
[334]
Drug Use at 22 Blue Eagle Trail
[340]
Online Gambling and Games
[344]
The Issues
[350]
General Principles
[351]
Findings and Analysis
[354]
Entries in Mr. Zhang’s Address Book, Notebooks and Pieces of Paper
[357]
(i) Points versus dollars
[360]
(ii) Units of information
[365]
(iii) Barrels of coffee
[373]
(iv) Nicknames
[383]
(v) Placing bets
[388]
(vi) Chemical names
[396]
(vii) The pill press stamp logos
[409]
(viii) Sodium bicarbonate
[422]
Other Problematic Areas in Mr. Zhang’s Evidence
(i) The drying room and the hanging heater
[427]
(ii) The grease gun
[431]
(iii) Belief that Unit 11 related to the meat business
[432]
(iv) Sounds from Unit 11 on November 6, 2009
[433]
(v) Mr. Zhang’s use of Ecstasy
[436]
The Crown’s Case
[441]
Conclusion
[459]
Introduction
[1] The accused, Wei Ting Zhang, age 50, is charged with the following offences in connection with a clandestine Ecstasy lab alleged to have been operating at an address in Scarborough between October 30, 2009, and January 13, 2010:
Count 1: the production of N-methyl-3,4-methylenedioxyamphetamine (“MDMA”), contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
Count 2: possession of Methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
Count 3: possession of Ketamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and
Count 4: possession of MDMA for the purpose of trafficking, contrary to s. 5(2) of the CDSA.
[2] Count 5, which alleged that Mr. Zhang was in possession of Methamphetamine for the purpose of trafficking, relates to drugs found in his residence after his arrest on January 13, 2010. The Crown withdrew this count following the submissions of counsel.
[3] For the reasons that follow, I am satisfied that the Crown has established its case beyond a reasonable doubt on Counts 1 to 4. Mr. Zhang is accordingly found guilty on those counts.
Overview of the Investigation
[4] In October 2009, officers from the Asian Organized Crime Task Force began an investigation nicknamed Project Lam Ying, which involved surveillance of Mr. Zhang, his residence at 22 Blue Eagle Trail in Scarborough, and 150 Milner Avenue, Unit 11, which is a commercial address. Two other individuals, Yiu Chuen Chan, who leased Unit 11 in October 2008 for a period of three years, and his nephew, Yi Fai Chan, were also targets of the investigation. A fourth individual, Thi Tran, was also a target and was ultimately charged with the same offences that Mr. Zhang is facing. However, Tran was murdered before his case came to trial. Another male, Ah Fung, was a person of interest at the outset of the investigation but never became a target as he was never observed by police at Unit 11.
[5] During the course of the investigation, the police sought and obtained general warrants that allowed them to surreptitiously enter Unit 11 on four occasions: October 30, November 18, and December 10, 2009, and January 7, 2010. It was apparent that sometime after the second and prior to the third covert entry, a secret or hidden room had been constructed between two large freezers and was being used for an illicit pill pressing operation.
[6] During the investigation, Mr. Zhang was seen entering and exiting Unit 11 on a number of occasions. He was also observed taking items into and out of the premise. Sometimes he remained at Unit 11 for a few minutes and sometimes for a few hours. On many occasions, he used a key to gain entry. He was in possession of a key to the Unit on the day of his arrest.
[7] On January 13, 2010, a search warrant executed at Unit 11 resulted in the seizure of four pill presses, as well as a large quantity of Methamphetamine, MDMA and Ketamine. There were also non-controlled drugs (piperazines) and various “cutting agents.” Most of these substances were found as ingredients in powders or already in tablet form. Methamphetamine, MDMA and Ketamine were the predominant psychoactive compounds in these powders and tablets. According to the expert witness, Sgt. Doug Culver, the low end value of the drugs seized, that is, if they were sold in bulk, was approximately $135,000. However, if sold on the street for $10 to $20 per pill, the total value would be approximately $2,100,000.
[8] A search warrant was also executed at Mr. Zhang’s home at 22 Blue Eagle Trail on January 13, 2010. This search resulted in the seizure of a quantity of Crystal Methamphetamine and 12 Ecstasy pills that were stamped with a turtle logo – the same logo found on some of the pills at Unit 11. In an upstairs bedroom closet, the police located a Ziploc bag containing residue of a powdered mixture of Methamphetamine and MDMA, which was the same chemical composition as substances found at Unit 11.
[9] Also located at Mr. Zhang’s home were an address book, five small notebooks and some loose pieces of paper. These books and papers contained the names of chemicals that are used in the production of Ecstasy and that were found in Unit 11. Mr. Zhang’s notebooks also contained sketches of logos, some of which were the same as the logos on pills and dies located in Unit 11’s pill pressing room.
[10] Mr. Zhang testified and denied any knowledge about the Chans’ illicit pill pressing operation. He acknowledged that he permitted Yiu Chuen Chan to store items in his garage that were later moved to 150 Milner Avenue and that he assisted in the move. However, he thought that these items were related to a meat company owned by Yiu Chuen Chan. Mr. Zhang acknowledged participating in the construction of the hidden room in Unit 11 but maintained that he did not know anything about the room’s intended purpose. He also provided an explanation as to why he had drawn the various logos in his notebooks and had written down the names of chemicals used to make Ecstasy. Mr. Zhang explained that the Ecstasy pills and the Methamphetamine or “ice” found in his kitchen cupboard were given to him on Christmas Eve by Yiu Chuen Chan. He did not know or suspect that Yiu Chuen Chan was involved in the production of Ecstasy at that time. Mr. Zhang testified that he was unaware of the Ziploc bag containing the powdered mixture of Methamphetamine and MDMA found in the bedroom closet in his house but suggested that it may have been left by a former tenant. Mr. Zhang’s common law wife, Mary Li, also testified and supported some aspects of Mr. Zhang’s testimony.
[11] The principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply.
The Surveillance Evidence
October 20, 2009
[12] On October 20, 2009, Mr. Zhang, Yi Fai Chan, and Yiu Chuen Chan were observed by surveillance officers moving items from Mr. Zhang’s garage to 150 Milner Avenue, Unit 11. The details of those observations are as follows.
[13] At 3:10 p.m., Yi Fai Chan exited Mr. Zhang’s house at 22 Blue Eagle Trail, retrieved some work gloves from a green Sienna van (the “van”), and re-entered the house through the front door. At 3:20 p.m., the garage door was opened and the van was backed up towards it. Mr. Zhang and Yi Fai Chan, both of whom were wearing gloves, loaded something into the van. Mr. Zhang got into the front passenger seat. Yi Fai Chan then drove the van to 150 Milner Avenue and pulled up to Unit 11.
[14] At 3:38 p.m., Mr. Zhang and Yi Fai Chan removed two objects covered in black garbage bags from the van, placed them on a dolly, and took them into the Unit. The bags appeared to contain very heavy items as it took both men to lift them. The position of the Crown is that each bag contained a pill press. Yiu Chuen Chan then locked the door to Unit 11, left in a grey Honda Civic (the “Honda”), and drove to 22 Blue Eagle Trail, where he backed his vehicle into the driveway.
[15] Between 4:15 and 4:33 p.m., Mr. Zhang, Yi Fai Chan, and Yiu Chuen Chan loaded more items from Mr. Zhang’s garage into the van and the Honda. Yi Fai Chan was observed loading a cardboard barrel with a metal top. He and Mr. Zhang also loaded shrink-wrapped boxes and white garbage bags filled with heavy sand-like substances into the rear of the van. At one point, Mr. Zhang, who was not wearing gloves, brushed off his hands after placing a box in the van. Yi Fai Chan then left in the van. Mr. Zhang and Yiu Chuen Chan left in the Honda. Both vehicles returned to 150 Milner Avenue.
[16] At 4:47 p.m., Yiu Chuen Chan opened the front door of Unit 11 with a key. He and Mr. Zhang entered the Unit. Yi Fai Chan backed up the van to the rear loading dock and carried boxes into the Unit through the rear loading door.
[17] At 4:56 p.m., Yi Fai Chan, while holding a strainer and wearing gloves, stood outside the Unit’s front door. He was unable to open the door. A few minutes later, Mr. Zhang and Yiu Chuen Chan exited through the door, which Yiu Chuen Chan then locked. He and Mr. Zhang left in the Honda, stopping at a glass-making business before returning to Mr. Zhang’s house at 22 Blue Eagle Trail at 5:37 p.m. [Mr. Zhang testified that he and Yiu Chuen Chan picked up a glass cabinet for Unit 11 at the glass company.]
[18] At no time during the investigation was Mr. Zhang observed driving the Honda or the van.
October 21, 2009
[19] On October 21, 2009, more items were moved from Mr. Zhang’s garage to 150 Milner Avenue. The surveillance team made the following observations.
[20] Around 4:00 p.m., Yi Fai Chan’s van arrived at 22 Blue Eagle Trail with two male passengers. The garage door was opened remotely, the van was reversed up to the garage, and boxes and furniture were loaded into it. Mr. Zhang exited the house and assisted the two males in loading some plywood and a tool box into the vehicle. The two males then got back into the van, which left the scene.
[21] At 4:57 p.m., Mr. Zhang was followed to 50 Silver Star Blvd., which is a five-minute walk from his home. At 5:35 p.m., he left that address and got into the passenger seat of the Honda, which was driven by Yiu Chuen Chan. They drove to 150 Milner Avenue and parked in front of Unit 11.
[22] During his testimony, Mr. Zhang recalled being at 50 Silver Star Blvd. on October 21, 2009, when Yi Chuen Chan showed up, looking for him and Yi Fai Chan. Yi Fai Chan, however, was not there. Yiu Chuen Chan asked Mr. Zhang to accompany him to Unit 11 and kept trying to reach Yi Fai Chan along the way. Mr. Zhang stayed only a couple of minutes at Unit 11 before Yiu Chuen Chan drove him back to 50 Silver Star Blvd.
[23] Mr. Zhang referred to 50 Silver Star Blvd. as the “mah-jong place”, which he explained is a privately owned business but open to the public. Mr. Zhang spent a lot of time at that address, playing mah-jong, card games or simply chatting and visiting with friends. No alcohol is served on the premises. Mr. Zhang was at 50 Silver Star Blvd. when he was arrested at 6:00 a.m. on January 13, 2010. He had been playing games since before midnight the night before.
November 6, 2009
[24] On November 6, 2009, at 5:55 p.m., the green van and Honda were parked in front of Unit 11.
[25] At 6:30 p.m., Det. Dominic Chong was at the rear of Unit 11, where there is a loading dock and a door for pedestrians, which was referred to during the trial as the “man-door.” There was a truck parked “head in” towards the loading dock. Det. Chong did not note its licence plate number. He explained that he probably did not have time to record it.
[26] Det. Chong testified that when he was standing about one to one-and-a-half feet from the loading dock, he heard a distinct rhythmic sound coming from the interior of the Unit. He described it as a rapid metallic clacking, followed by a sweeping sound. It sounded like a pill press in operation.
[27] Det. Chong testified that he has heard pill presses operating on a number of occasions, starting in 2001. Since that time, he has been involved in the seizure of about ten pill presses in connection with investigations into clandestine drug labs. In cross-examination, Det. Chong agreed that there could be other machines that produce the same sound.
[28] At 6:52 p.m., Mr. Zhang, Yiu Chuen Chan and Yi Fai Chan exited Unit 11. Mr. Zhang and Yiu Chuen Chan left in the Honda; Yi Fai Chan left in the van. After their departure, Det. Chong did not hear any more sounds coming from the rear of Unit 11. The truck was still parked at the loading dock.
[29] Sgt. Culver testified that given his experience, he is able to identify the sound of a single-punch pill press such as the four presses found by police in the hidden room on January 13, 2010. He explained that the presses are run by an electric motor that rotates a piston and drives the piston down or on top of the powder to compact the powder into a tablet. One revolution of the wheel produces one tablet. The rotation happens very quickly – one machine can produce 4,000 to 5,000 tablets per hour. The resulting noise is very loud and distinctive and, in a residential area, would be heard by neighbours. A person unfamiliar with the sound could mistake it for that of a jack hammer or some other type of heavy metal machinery. In addition to the sound of the motor, there is also a loud repetitive thumping sound.
November 10, 2009
[30] On November 10, 2009, at 1:48 p.m., Mr. Zhang and Yi Fai Chan were observed in the van in the driveway at 81 Enfield Avenue. Yi Fai Chan loaded a box into the van while Mr. Zhang remained in the vehicle. The van was followed to a restaurant in a plaza.
[31] At 2:55 p.m., Mr. Zhang and Yi Fai Chan arrived at 150 Milner Avenue. Mr. Zhang retrieved a box from the van and carried it into Unit 11 after Yi Fai Chan opened the door with a key. Yi Fai Chan also entered the Unit.
[32] At 3:22 p.m., Det. Cst. Robert Johnston had his ear to the man-door at the back of Unit 11 when he heard the sound of a machine, like an electric motor, coming from inside. He described it as rhythmic in nature – a continuous sound or hum that lasted 20 to 25 seconds. There was no change in pitch. It did not sound like a high-pitched power drill or saw. He was not sure what caused the sound.
[33] Surveillance on Unit 11 ended at 4:45 p.m. Mr. Zhang and Yi Fai Chan were still believed to be in the Unit at that time.
November 18, 2009
[34] On November 18, 2009, surveillance was set up on Unit 11 at 6:40 p.m. The van was parked outside the Unit. At 8:43 p.m., Yi Fai Chan, with Mr. Zhang in the passenger seat, drove the van to the Fisherman’s Villa Restaurant. Surveillance photographs show the two of them at the restaurant around 9:00 p.m. They left the restaurant at 9:40 p.m. and returned to 150 Milner Avenue. At 11:00 p.m., surveillance of Unit 11 was discontinued.
November 23, 2009
[35] On November 23, 2009, at 10:36 a.m., Mr. Zhang and Yi Fai Chan arrived at 150 Milner Avenue in the green van. Mr. Zhang exited the front passenger seat and walked towards Unit 11. The van circled the building and then parked in front of the Unit. Mr. Zhang and Yi Fai Chan then unloaded from the van a piece of plywood, plastic bags full of unknown property, a broom and a long tubular box, which they took into the Unit. Mr. Zhang remained inside; Yi Fai Chan entered the Unit after parking the van.
[36] At 1:41 p.m., Mr. Zhang, Yi Fai Chan and Yiu Chuen Chan exited Unit 11. All of them were carrying two-by-fours and other material.
[37] At 7:24 p.m., Yi Fai Chan exited Unit 11 carrying a large piece of wood, which he placed in the green van. He and Mr. Zhang then drove to a Wal-Mart store and went to the pharmaceutical department. Mr. Zhang initially picked up five containers of calcium pills but returned them to the shelf after speaking to Yi Fai Chan. They then selected seven large bottles of acetaminophen (500 pills per bottle), which they purchased before leaving the store.
[38] Mr. Zhang testified that Yi Fai Chan told him that he was buying the acetaminophen for his mother-in-law, who was a medical practitioner in China. She could sell them there for a profit since acetaminophen is cheaper in Canada than in China. Mr. Zhang testified that he was not suspicious of the purchase, given Yi Fai Chan’s explanation.
November 27, 2009
[39] On November 27, 2009, Mr. Zhang, who spent the better part of that day at Unit 11, was observed at different times using a key to lock and unlock the door to the Unit. This activity was captured by a camera hidden in a van that the police had parked on site. Sgt. Kory Keeping narrated events as the DVD was played in court.
[40] At 10:32 a.m., Mr. Zhang used a key to open the door to Unit 11. Yi Fai Chan followed him in and then locked the door.
[41] At 1:12 p.m., Yiu Chuen Chan arrived and used a key to open the door. At 3:21 p.m., he left the Unit and locked the door using a key.
[42] At 5:38 p.m., Mr. Zhang left Unit 11, followed by Yi Fai Chan. Someone from out of the view of the camera tossed Mr. Zhang some keys. Mr. Zhang then locked the door.
[43] At 6:15 p.m., Mr. Zhang returned to Unit 11, unlocked the door using a key, and entered the premise.
[44] At 8:52 p.m., the camera was turned off. It was believed that Mr. Zhang was still inside the Unit.
December 1, 2009
[45] At 1:20 p.m. on December 1, 2009, the green van was observed in front of Unit 11 at 150 Milner Avenue. At 1:35 p.m., Mr. Zhang and Yi Fai Chan exited the Unit, got into the van, and drove to Franklin Empire Control Mart Automation Group, which is a lighting and electrical supplies store at 140 Milner Avenue, Unit 2. At 1:46 p.m., they left that store and were followed to a plaza. Mr. Zhang entered a Dollarama store and exited with a plastic tube in his hand.
[46