ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-90000570-0000
DATE: 20140722

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHU QIANG WU

Faiyaz Alibhai, for the Crown

Glen Orr Q.C., for Shu Qiang Wu

HEARD: June 14 and 15, 2014

Thorburn J.

reasons for judgment

1. The Charges

[1] Shu Qiang Wu is charged with possession for the purpose of trafficking MDMA, ketamine and methamphetamine contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He is also charged with producing MDMA, ketamine and methamphetamine contrary to section 7(1) of the Controlled Drugs and Substances Act. The offences are said to have taken place on October 19, 2007.

2. The Law

Relevant Statutory Provisions

[2] Subsection 4(3) of the Criminal Code, R.S.C. 1985, c. C-46, defines possession as anything knowingly in one’s actual possession or control.

[3] Section 2 of the Controlled Drugs and Substances Act, defines “traffic” to include selling, giving, transferring, or offering to do so. Section 5 prohibits anyone from possessing a controlled substance for the purpose of trafficking.

[4] Produce is defined in the Controlled Drugs and Substances Act as “to obtain the substance by any method or process including

a. manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or

b. cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained,

and includes offer to produce”.

Knowledge as an Element of Possession

[5] There cannot be possession without knowledge of the nature of the object and its criminal character. (R. v. Beaver (1957), 1957 14 (SCC), 118 C.C.C. 129 (S.C.C.) and R. v. Chalk, 2007 ONCA 815 at para. 18.)

[6] Knowledge will often depend on the visibility of the object and the accused's connection with the location. Occupancy does not automatically infer knowledge of the items within the dwelling (R. v. Grey, (ONCA), (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.), per Laskin J.A. and R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6.)

[7] A person who discovers drugs and spends time maintaining custody of them while considering what to do with them may be found to possess drugs. (R. v. Christie (1978), 1978 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.C.A.).)

Control as an Element of Possession

[8] In order to establish control, an accused must have the ability to exercise some measure of control over the item. It is not necessary for the Crown to prove that such power was in fact exercised. (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at 15-17, 137, 138; R. v. Webster, 2008 BCCA 458, 238 C.C.C. (3d) 270 at paras. 42-44.)

[9] The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself. (R. v. Pham (K.T.), 2005 44671 (ON CA), [2005] O.J. No. 5127; 204 O.A.C. 299 (C.A.).)

[10] It is not necessary that the accused actually examine or look at an item to be in possession of it. (R. v. Daniels 2004 NLCA 73, 2004), 191 C.C.C. (3d) 393 at para. 12 (Nfld. C.A.).)

[11] Knowledge and control may be established by inference drawn from proven facts.

The Crown’s Burden of Proof

[12] Mr. Wu is presumed to be innocent of these charges and the Crown is required to prove beyond a reasonable doubt the acts, and the intention to commit the acts. As with any issue of fact in a criminal proceeding, it may be established by circumstantial evidence. (R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at page 6, and R. v. Pham, 2005 44671 (ON CA), at para. 18.) Each of the essential elements of the offence must be proven beyond a reasonable doubt. (R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.)

3. The Evidence

[13] Mr. Wu elected not to testify and therefore the only evidence to be considered in determining whether the Crown has satisfied me of Mr. Wu’s guilt on these charges beyond a reasonable doubt, is the evidence tendered by the Crown.

[14] In early October 2007, the R.C.M.P. received information from a representative of Charles Tenant and Company that Mr. Girouard was involved in suspicious transactions related to the purchase of chemical precursors used in producing illegal drugs in pill form.

[15] On October 16, 2007, the R.C.M.P. were further informed that Mr. Girouard was expected to make a pick up at Charles Tenant and Co. of 250 kilograms of caffeine and 75 kilograms of benzocaine that are commonly used as the binding agents for illegal drugs. Later that day, the individual was observed by the R.C.M.P. to pick up product. He was followed to 8 Pipers Green Avenue in Toronto where he went into a garage of a house for about 30 minutes with the door closed.

[16] Corporal Stewart saw that 8 barrels of fibre keg were taken. He testified that this is how caffeine is sold by chemical companies.

[17] On October 19, 2007, R.C.M.P. Officers conducted surveillance at 8 Pipers Green Avenue, Toronto. Police saw a number of items from the residence loaded into a Chevrolet Astro van. Officer Bonham testified that at least two men were carrying the items out of the residence and into a van. The van departed from the residence at approximately 19:43 hours.

[18] Thereafter, a marked Toronto Police Service vehicle stopped the Chevrolet Astro van after it failed to stop at a stop sign. Police saw a bucket of green coloured tablets believed to be MDMA (Ecstacy) in plain view. They then searched the van and found a 5 gallon pail containing MDMA.

[19] Officer Palmquist testified that at 20:10 he was told that there were two males inside 8 Pipers Green and if they came out they were to be arrested for possession of MDMA.

[20] At approximately 20:28 hours, Constable Palmquist observed an Asian male leave 8 Pipers Green Avenue, and go to the driver’s side door of a beige coloured Toyota Corolla that was parked in the driveway. He also saw a second male either on the porch or through the window at the front of the house (although he did not record this in his notes).

[21] The male who went out of the house was arrested in the driveway. Police questioned the male and asked him if there was anyone else in the house but he did not respond.

[22] Within approximately five minutes, four R.C.M.P. members entered the residence. Officer Gallop estimates that this was at approximately 20:35. The front door was unlocked. Police entered and announced their presence.

[23] A male was found standing at the foot of the basement stairs. This male was later identified as Shu Qiang Wu.

[24] A Burberry purse was found on the sofa in the living room and Wu’s parole documents and two cellphones were found in the purse.

[25] There was not much furniture in the house.

[26] While going through the house the officers observed large quantities of white pills, three large mechanical pressing devices, several grinders, mixing bowls and a room full of tin foil trays filled with coloured substances believed to be MDMA. These were all in plain view. According to Officer Johnston, there were drugs found in almost every room.

[27] Several pairs of gloves with chemicals on them were also found in the house.

[28] Corporal Stewart testified that the home was very dirty and there was residue on almost everything on the first floor. He acknowledged that no residue could clearly be shown in the photograph of the sofa in the living room but said this might be because the picture was taken from about fifteen feet away.

[29] He also said that upon entering the home, the smell “hurt your nose”. It was a smell of urine and licorice which permeated the residence.

[30] It is evident from a review of the extensive photographs taken of the house, that there is little evidence of any use of the house other than the production and storage of drugs.

[31] The front entrance to the house leads to a main hallway. Immediately to one side is the living room. There were no drugs found in the living room. The end of the hallway leads to the family room which was covered in drug paraphernalia and drugs which are evident to the naked eye. In order to get to the basement, one must go down the hallway to the back of the house and then turn left and go down the stairs.

[32] Police seized approximately 150 kilograms of finished methamphetamine powder and tablets from the residence as well as 25 kilograms of tablets from the van. Each kilogram makes 3,490 tablets and 175 kilograms would make 610,000 pills.

[33] The tablets and powder contained methamphetamine, MDMA and ketamine. The pills were predominantly methamphetamine. Methamphetamine is highly addictive.

[34] Sergeant Culver is an expert in clandestine drug laboratories, the production of substances such as MDMA, ketamine and methamphetamine, and the nature of organizations that operate clandestine structures. He has conducted over three hundred investigations.

[35] He testified that the production of 175 kilograms of drugs is at the top end of the scale. It would be characterized as a commercial operation designed to produce large quantities of drugs. There would usually be several people involved in such an operation: some to get the chemicals, some involved in production and some involved in sale of the product.

[36] Sergeant Culver testified that drug trafficking is a cash business.

[37] The street value of the drugs seized on October 19, 2007 was assessed by Sergeant Culver at between $763,000 (if product were bought in bulk) and $12 million (if sold individually on the street).

[38] No fingerprints were taken and there was no analysis of the cellphones seized.

4. The Issues

[39] Given the vast quantity of drugs in the home, if Mr. Wu is found to be in possession of the drugs, possession is for the purpose of trafficking.

[40] The issues to be addressed are:

(a) whether Mr. Wu had knowledge of and exercised control over the drugs such that he was in possession of MDMA, ketamine and methamphetamine for the purpose of trafficking on October 19, 2007; and

(b) whether Mr. Wu was involved in the production of the MDMA, ketamine and methamphetamine found on October 19, 2007.

5. Analysis of the Evidence and Conclusion

Knowledge as an element of Possession for the Purpose of Trafficking

[41] The Crown must prove beyond a reasonable doubt that Mr. Wu had constructive possession of the drugs.

[42] In this case, anyone in the home for any time would know there was a serious drug operation taking place as:

(a) 150 kilograms of methamphetamine, MDMA and ketamine was found in plain view in many different rooms on the ground floor and the basement of the house;

(b) paraphernalia often associated with drug trafficking (pill presses, fibre kegs, grinders, and gloves) were found in plain view;

(c) there was no attempt to hide, secure, or obstruct the drugs from plain view;

(d) there was drug residue throughout the house; and

(e) there was a strong odour of licorice and urine throughout the house resulting from the drug operation.

[43] Mr. Wu’s counsel suggests that Mr. Wu may have gone into the living room and then gone straight down into the basement thereby not seeing the drugs and drug paraphernalia found in almost all of the other rooms in the house.

[44] This stretches credulity as the family room is next to the entrance to the basement. The family room was full of large trays of drugs, and there was drug paraphernalia in the room in plain view. Moreover, the basement was also full of drug paraphernalia in plain view.

[45] Therefore, while Mr. Wu’s parole papers were found in the living room where there were no obvious signs of drugs, and he was found at the bottom of the basement stairs, I do not accept that it is therefore reasonable to infer he may not have been aware of the drugs in the home.

[46] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Wu had knowledge of the extensive drug operation being carried on in the home.

Control as an element of Possession for the Purpose of Trafficking

[47] The next question is whether Mr. Wu had control over those drugs.

[48] The totality of the evidence set out below satisfies me that Mr. Wu had the ability to exercise some measure of control or right to control over the drugs in the home:

(a) Mr. Wu was in the home filled with drugs and drug paraphernalia that were readily apparent and unsecured, for at least half an hour;

(b) During that half hour Mr. Wu was in the home with another person who has been found to have been part of this drug operation;

(c) After that individual left, Mr. Wu remained alone at the home for another approximately five minutes;

(d) Mr. Wu purchased approximately $340,000 in cash six months before his arrest which is consistent with Sergeant Culver’s assertion that this is a cash business of which this operation was one of the largest he had ever seen. Mr. Wu was carrying the receipt for this cash at the time of his arrest;

(e) Sergeant Culver also testified that a large scale drug operation that produced 610,000 pills such as this, would not be conducted by only one person and this quantity could not have been manufactured in a few days;

(f) It is highly unlikely that someone who had nothing to do with this large scale drug operation would be invited into the home to see what was so openly being carried on, particularly at or around the time that some of those drugs were being moved;

(g) It is even less likely that that person would be left alone in the home with the drugs, thereby putting the drug operation at risk.

[49] Whether Mr. Wu was in the living room and was seen through the window or left the house to go on to the porch before reentering the home alone is immaterial. In either case, he chose to remain or to reenter the home alone where there was a large scale drug operation.

[50] I am cognizant that some courts have held that mere presence in a residence and knowledge of the presence of drugs is not sufficient to establish possession. (R. v. Colvin and Gladue (1942), 1942 245 (BC CA), 78 C.C.C. 282 (B.C.C.A.).)

[51] However, in this case, the cumulative effect of

(a) Mr. Wu’s attendance in the home for 35 minutes;

(b) his attendance at the same time as a person found to have been involved in the drug operation;

(c) his subsequent decision to remain in the home alone for another five minutes;

(d) the large scale drug operation with drugs worth up to $12 million carried on in plain view; and

(e) the presence of important documents belonging to Wu in the home,

leads me to believe that the only reasonable inference is that Mr. Wu remained on the premises to exert some control over the drug operation.

[52] My finding is consistent with the case of R. v. Tran 2005 3937 (ON CA), 194 O.A.C. 278, where the Ontario Court of Appeal determined that, “The trial judge… gave as his basis for inferring knowledge the fact that the odour of marijuana was pervasive on entry, the noise from the grow operation made the innocent attendance of the appellant impossible to accept, there was a complete absence of any normal indicia of co-habitation … and the indicia of drug activity was readily apparent. The trial judge… found that it would be impossible to avoid knowledge of its existence once one crossed the threshold to the bungalow. In that context, the appellant was found to have remained in the house for 37 minutes [on one occasion]. A stay of that duration was consistent with the time spent by people who are paid to monitor and maintain grow operations. On the record, it was open to the trial judge to infer that the appellant remained on the premises to exert control over the operation.”

[53] Similarly, in R. v. Nguyen 64 W.C.B. (2d) 301, Maund J. of the Ontario Court of Justice held that where there was an obvious marijuana grow operation being conducted through the house but the only direct evidence linking the accused to the premises was their attendance for 40 minutes as well as delay at the door where one of the accused appeared to secure it (although there was no evidence he was seen with a key and the evidence did not suggest he was actually locking the door), the court held they had a measure of control over the premises and concluded that they were guilty of drug trafficking.

[54] For these reasons, I find Mr. Wu guilty of possession for the purpose of trafficking 150 kilograms of methamphetamine, MDMA and ketamine.

[55] However, there is no evidence Mr. Wu was involved in manufacturing process, or offering to produce the drugs. Active manufacturing was not in progress when Mr. Wu was found, he was not involved in moving the drugs, there are no fingerprints or other indicia of Mr. Wu’s participation in the production process.

[56] For these reasons, I find Mr. Wu not guilty of the production of Methamphetamine, MDMA and ketamine.

Thorburn J.

Released: July 22, 2014

COURT FILE NO.: 11-90000570-0000
DATE: 20140722

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHU QIANG WU

REASONS FOR JUDGMENT

Thorburn J.

Released: July 22, 2014