ONTARIO

SUPERIOR COURT OF JUSTICE

**COURT FILE NO.:**11-90000790-0000

DATE: 20140121

B E T W E E N:

HER MAJESTY THE QUEEN

Chris De Sa for the Crown

• and -

TONY PHU LE

Kim Schofield for Tony Phu Le

HEARD: November 25, 26, 27, 28, and 29, 2013.

REASONS FOR JUDGMENT

Corrick J. (orally)

Introduction

[1] Mr. Le was tried by me sitting without a jury on a five-count indictment charging him with possession of heroin, oxycodone, MDMA and marijuana, all for the purpose of trafficking, and possession of the proceeds of crime.

[2] By way of overview, on June 25, 2009, the police searched an apartment at 3040 Keele Street pursuant to a search warrant. During that search, they found a variety of drugs, drug paraphernalia, including packaging materials, cell phones, and scales, and a quantity of Canadian and American currency. Four people were in the apartment at the time of the search. They were all arrested. Mr. Le and Mr. Vu Hoang resided in the apartment. The other two men arrested were visitors.

The Evidence

[3] A number of police officers who participated in the search of the apartment described the layout of the apartment and the items seized. This evidence is not in dispute.

[4] The apartment was located in the basement of a building. It was not a large apartment. It had two bedrooms, one bathroom and an open area that was used as the kitchen and living room.

[5] When police entered, Mr. Hoang was in the living room, and Mr. Le was in his bedroom. There is no evidence about where the other two men, Song Tran and Gia Tran, were when the police entered.

[6] The following items were seized from Mr. Hoang's bedroom:

▪ Ziplock bags containing a total of 412 grams of marijuana, located in a mini fridge.

▪ Five cell phones. One was charging, one was on a table in the room, and three were located at the foot of the bed.

▪ A black Infiniti digital scale, a bundle of currency totalling $2,400 wrapped in a red elastic band, a CIBC credit card statement in Mr. Hoang's name and a Canadian government cheque made out to Mr. Hoang located in the left pocket of a black leather jacket that was hanging in the wardrobe.

▪ A bundle of $100 bills totalling $4,000 wrapped in a red elastic band located inside the removable lining of the black leather jacket.

▪ A marijuana crusher.

[7] The following items were seized from Mr. Le's bedroom:

▪ Two ziplock bags containing a total of 105 grams of marijuana, which were located inside a gift bag that was on top of the dresser.

▪ A Motorola phone and Blackberry located on a computer desk.

▪ Two bundles of Canadian currency located inside a red suitcase that was near the dresser.

▪ A silver Pro scale, a spoon with a green handle, two elastic bands and a sheet of paper with a corner missing, located inside a modem box.

▪ A Canadian passport and birth certificate in Mr. Le's name and 163 2" x 2" baggies with dollar signs printed on them, located inside a suitcase that was inside the closet.

▪ 29 sandwich bags.

▪ A shoe box containing miscellaneous papers and a silver Motorola cell phone located in the closet.

▪ A white box, which contained 186 blue diamond-shaped pills with VAG stamped on both sides, and two round green pills wrapped in a tissue with 80 stamped on one side and CDN stamped on the other side, located in the closet. It was believed that the blue diamond-shaped pills were MDMA. In fact, they were Viagra. It was believed that the two green pills were oxycodone. They were not. They tested as containing heroin.

[8] A one kilogram container of Nestea iced tea with a false bottom was seized from the top of the refrigerator in the kitchen. When the bottom of the container was unscrewed, police located four packages of heroin, each wrapped in cellophane and wrapped with a red elastic band. The total weight of the heroin was 56.14 grams. It was worth approximately $28,000.00.

[9] Mr. Hoang had $410 on him when he was arrested. Mr. Le had $40 in Canadian currency and $109 in American currency on him when he was arrested.

[10] The main issue in the trial was whether Mr. Le had knowledge and control, and thus possession, of the heroin secreted in the bottom of the Nestea container.

[11] The container itself is marked as Exhibit #6A. It appears to be a regular one- kilogram container of Nestea iced tea crystals. When the lid is removed, it appears to contain iced tea crystals. It is not apparent from the exterior of the container that it has a hidden compartment.

[12] Mr. Hoang testified. He was Mr. Le's co-accused on all five charges on the indictment before the court. On the first day of the trial, November 25, 2013, the charges of possession of heroin, MDMA, and oxycodone, for the purpose of trafficking against Mr. Hoang were stayed by the Crown before another judge. I set a trial date of June 23, 2014 for his two remaining charges of possession of marijuana for the purpose of trafficking and possession of proceeds of crime.

[13] Mr. Hoang testified that he and Mr. Le had been living in the apartment at 3040 Keele Street for about three weeks prior to the execution of the search warrant. He and Mr. Le had known each other for about twelve years prior to being arrested. One day, Mr. Le came home and showed him a Nestea container with a false compartment in the bottom. Mr. Le said he had bought it at a joke store. Mr. Hoang saw Mr. Le put something that he had in his hands into the false compartment. Mr. Hoang did not know what it was, only that it looked like plastic packages. He did not testify about any further interaction he saw Mr. Le have with the Nestea container. He did not know that Mr. Le had drugs in his bedroom. On a couple of occasions, he saw Mr. Le's friends come to the apartment and go into Mr. Le's bedroom.

[14] At the time of the execution of the search warrant, Mr. Hoang was selling marijuana. Mr. Le knew he was selling marijuana. Mr. Hoang sold marijuana to Mr. Le.

[15] Mr. Hoang denied ownership of the heroin found in the Nestea container. He testified that sometime after they were arrested, Mr. Le asked him if he knew anyone who would "take the hit for $25,000." Mr. Hoang thought Mr. Le was asking him to plead guilty to possessing the heroin in exchange for $25,000. Mr. Hoang had not previously disclosed this conversation to the Crown.

[16] Ms. Schofield cross-examined Mr. Hoang about a number of statutory declarations he had instructed his counsel, Mr. Jacksa, to prepare and provide to the Crown in an effort to have the charges against him withdrawn. Mr. Hoang knew that the charges against Song Tran and Gia Tran were withdrawn by the Crown after they had provided statutory declarations, and he wanted to try the same thing.

[17] In September 2011, after Mr. Hoang was committed for trial, he instructed his counsel to present the Crown with an unsigned statutory declaration that indicated that he was not in possession of the heroin, MDMA or Viagra that was located in the apartment. The statutory declaration did not contain any statements about the Nestea container or about Mr. Hoang seeing Mr. Le put anything in the Nestea container. Mr. Hoang testified that he learned that this statutory declaration was not acceptable to the Crown to withdraw the charges against him.

[18] In January 2013, Mr. Hoang instructed his counsel to prepare a further statutory declaration to present to the Crown. He understood at the time that he had to confirm in a statutory declaration that the heroin belonged to Mr. Le before the Crown would withdraw the charges against him. A further statutory declaration dated January 28, 2013 was drafted and presented to the Crown. It too was unsigned. It indicated that in June 2009 Mr. Hoang did not know that Mr. Le was selling heroin, although he knew that he was selling marijuana, MDMA and other party-type drugs. It also indicated that he did not know that there was heroin, MDMA or Viagra in the apartment prior to the execution of the search warrant. The statutory declaration was silent about the Nestea container and its contents. Mr. Hoang learned that this statutory declaration was not sufficient for the Crown to withdraw his charges. He therefore instructed his counsel to prepare a further statutory declaration.

[19] Mr. Hoang signed a statutory declaration on January 29, 2013 that indicated, among other things, that he was disappointed to learn shortly after he moved in to the apartment that Mr. Le was selling heroin. It also indicated that Mr. Le had shown him the Nestea container and told him that he planned to hide his drugs in it. Mr. Le showed Mr. Hoang some bundles, which Mr. Hoang assumed were heroin. A day or two later, Mr. Hoang saw the Nestea container in the kitchen and assumed that Mr. Le was storing his drugs in it.

[20] Mr. Hoang agreed with Ms. Schofield's suggestion that the content of the statutory declarations changed because he knew that his charges would not be withdrawn unless he pointed the finger directly at Mr. Le and appeared in court and gave evidence that was consistent with such a statutory declaration.

[21] In re-examination, Mr. Hoang explained that he did not provide all of the details in the statutory declarations drafted prior to the final one because he did not want to "pin" anything on Mr. Le.

[22] Officer John Babiar testified as an expert on issues related to the drug trade, including the pricing, packaging and distribution of heroin, marijuana and prescription drugs. Ms. Schofield did not contest Officer Babiar's qualifications to provide opinion evidence on these topics.

[23] It was Officer Babiar's opinion that Mr. Le and Mr. Hoang were both engaged in drug trafficking. He was unable to say whether they were acting independently of each other or in concert. He based his opinion on the quantity of drugs found in each of the bedrooms, together with the fact that a digital scale, five cell phones, a marijuana grinder and two separate bundles of cash totalling $6,400 were located in Mr. Hoang's bedroom and a digital scale, three cell phones, baggies and two bundles of cash totalling $2,000 were found in Mr. Le's bedroom.

[24] Officer Babiar described the Nestea container as the "stash" location for the heroin. The container was easily accessible on top of the refrigerator, yet the contents were concealed. It was in a common area of the apartment, and thus not easily connected to one particular occupant of the apartment. According to Officer Babiar, when a drug dealer uses a stash location, there must be a certain amount of trust between the owner of the drugs and the person holding them in the stash location. In the case of the heroin in the Nestea can, there would be a risk that someone could discard the can. Officer Babiar was unable to comment on the relation of the tin or its location to the two occupants of the apartment, Mr. Hoang and Mr. Le.

[25] Finally, Officer Babiar testified that he believed that the two green pills found in Mr. Le's bedroom were counterfeit oxycodone. They were the colour and size of oxycodone and had the stamping of oxycodone. When he first looked at a photograph of the pills, he believed them to be oxycodone. However, on closer examination, he saw that the stamping was imprecise and lacked the clear edges of an oxycodone pill available at a pharmacy.

[26] The final piece of evidence Mr. De Sa sought to tender was Mr. Le's criminal record. He submitted that the criminal record was admissible as part of the Crown's case because Ms. Schofield's cross-examination of Mr. Hoang suggested that he was a third party suspect and raised issues related to his character to demonstrate that it was more likely that he possessed the heroin rather than Mr. Le. This, in Mr. De Sa's submission, entitled him to tender Mr. Le's criminal record.

[27] There is no basis upon which Mr. Le's criminal record is admissible. The Crown did not apply to have the record admitted as similar fact evidence. Mr. Le did not put his character into issue. Ms. Schofield did not argue that Mr. Hoang was the more likely person to have possessed the heroin based on his character, but rather based on the circumstances surrounding the offence as they were discovered by the police when they executed the search warrant. Ms. Schofield was entitled to cross-examine Mr. Hoang about his youth record and other disreputable conduct to support her submission that he is not a credible witness. Mr. Le's criminal record is not admissible and I have not considered it.

[28] Mr. Le called no evidence.

Positions of the Parties

[29] Mr. De Sa submitted that Mr. Hoang is a credible witness and that the court should accept his evidence and find Mr. Le guilty of the charge of possession of heroin for the purpose of trafficking. He submitted that Mr. Hoang's explanation for the changes in his statutory declarations is credible – that he was trying to avoid pointing the finger at Mr. Le and hoping that Mr. Le would step forward and admit that the heroin was his. Mr. De Sa argued that the evidence supports the Crown's theory that both Mr. Hoang and Mr. Le knew that the Nestea can contained heroin. In particular, Mr. De Sa relied on Officer Babiar's evidence about the level of trust required to hide $28,000 worth of heroin in a Nestea container on the top of a refrigerator in the common area of an apartment, which is occupied by more than one person.

[30] Ms. Schofield submitted that Mr. Hoang is not a credible witness and that his evidence must be scrutinized carefully because he had received consideration from the Crown in exchange for his cooperation, and he hoped to receive further consideration after he testified against Mr. Le.

Principles of Law

[31] My analysis of the evidence in this trial is governed by some fundamental principles of criminal law that apply to all criminal trials.

[32] The first is that the Crown must prove beyond a reasonable doubt that Mr. Le is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. Le is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

[33] The second fundamental principle is the presumption of innocence. This presumption stayed with Mr. Le throughout the case. It is only defeated if and when Crown counsel satisfied the court beyond a reasonable doubt that he is guilty of the crimes charged. The presumption of innocence also means that he does not have to testify, present evidence, or prove anything in this case. Mr. Le does not have to prove that he did not possess the drugs. Nor does he have to prove that someone else did. He does not have to prove that he is innocent of these crimes.

[34] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

Analysis

Count #1 – Heroin

[35] I begin with an analysis of Mr. Hoang's evidence. His evidence is crucial to the Crown's case. I am required to scrutinize his evidence carefully. In exchange for a statutory declaration specifically implicating Mr. Le as the owner of the heroin, the charges of possession of heroin, oxycodone and MDMA for the purpose of trafficking against Mr. Hoang were withdrawn by the Crown. In addition, Mr. Hoang testified that he hoped to obtain further consideration from the Crown with respect to two remaining charges of possession of proceeds of crime and possession of marijuana for the purpose of trafficking in exchange for his testimony against Mr. Le.

[36] Mr. Hoang had a motive to lie to shift responsibility for the heroin from himself and to obtain consideration from the Crown on the charges related to the drugs and money found in his bedroom.

[37] Having determined that there is ample reason to approach Mr. Hoang's evidence with caution, I turn to consider whether there is evidence from an independent source that confirms it. I am entitled to accept Mr. Hoang's evidence without confirmatory evidence if I am satisfied it is true, but it would be dangerous to do so, particularly given its importance to the Crown's case.

[38] There is no independent evidence confirming Mr. Hoang's evidence that Mr. Le put the heroin in the Nestea container or knew the container contained heroin. There was no attempt to obtain fingerprints from the container. No heroin packaging material or cutting agents were found connected to Mr. Le. The container was found on top of the fridge in the common area of the apartment. It appeared to be nothing more than a container of iced tea. I am left to determine whether I accept Mr. Hoang's evidence.

[39] I am troubled by a number of issues with Mr. Hoang's evidence.

[40] The evolution of Mr. Hoang's evidence implicating Mr. Le, beginning with the first statutory declaration, taints Mr. Hoang's reliability as a witness. Particularly concerning to me are the differences between the January 28th and January 30th statutory declarations. In the January 28 declaration, which Mr. Hoang instructed his counsel to prepare, he stated that he was not aware that Mr. Le sold heroin, that he had never observed Mr. Le with heroin and that he did not know there was heroin in the apartment. When he learned that this statutory declaration was not enough to get his charges withdrawn, the next statutory declaration he had prepared, and ultimately signed, stated that he learned that Mr. Le was selling heroin shortly after moving into the apartment, and that Mr. Le showed him the Nestea container and told him he was planning to hide his drugs in it. He also stated that Mr. Le showed him bundles, which he assumed were heroin. Mr. Hoang testified that he knew that the only way to help himself was to implicate Mr. Le.

[41] Also troubling is that Mr. Hoang disclosed certain details for the first time during his evidence at trial. He testified that Mr. Le asked him if he knew anyone who would plead guilty to the heroin charge in exchange for $25,000. Mr. Hoang believed Mr. Le was asking him to plead guilty for $25,000. When confronted by Ms. Schofield with the fact that he had not previously revealed this information to the Crown, his response was "you wouldn't know."

[42] Furthermore, Mr. Hoang admitted that he had not been truthful in an attempt to minimize his involvement in the drug trade and maximize Mr