ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-26-0000
DATE: 2014 09 04
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Simon Yeung
Defendant
W. Beatty, Counsel for the Crown
L. Douglas, for the Defendant
HEARD: April 15, 2014; July 28, 2014
E.J. Koke
Background
[1] It is not often that a citizen schedules a visit to a police detachment so he can confess to a crime, particularly when someone else has already been charged with the offence. This is what happened on April 5, 2011, when Mr. Fred Williams, a resident of Walpole Island, Ontario, attended at the OPP detachment in Parry Sound, Ontario. After arriving at the detachment, Mr. Williams informed Detective Constable Ronald Marshall that he was the person responsible for operating a large marijuana grow-op that had been discovered by the police in the Township of Carling, in the District of Parry Sound.
[2] More than 700 pounds of marijuana had been discovered in a yellow shipping container at the location of the grow-op the previous October. The owner of the property, Mr. Hau Duong had been arrested at the site and charged with a number of offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).
[3] Following his arrest, Mr. Duong was released from custody pursuant to a recognizance. Mr. Duong’s younger brother, Simon Yeung, was named as a surety on the recognizance for $50,000. Mr. Duong lived with Mr. Yeung following his release. Pursuant to the terms of the recognizance, Mr. Duong was not permitted to return to the district of Parry Sound, except for court appearances or appointments with legal counsel.
[4] Mr. Williams confessed to the crime at about 11:00 a.m. By 4:30 that afternoon, following an interview with the police, Mr. Williams admitted that he had not been involved in the grow-op. He informed the police that he had been promised the sum of $25,000 by Mr. Duong if he confessed to being the person responsible for using the Carling Township property for growing marijuana. In fact, he had only attended at the Carling property on one prior occasion, which was on March 27, 2011, just nine days prior to his visit to the police station.
[5] Mr. Williams told the police that his one visit to the site had been arranged by Mr. Duong for the purpose of giving him an opportunity to familiarize himself with the property before he confessed to the police. He had been accompanied and driven to the property by Mr. Duong’s brother, Simon Yeung.
[6] Mr. Yeung has been charged with attempting to obstruct justice, contrary to section 139(2) of the Criminal Code.
Issue
[7] Mr. Yeung denies attending at the site with Mr. Williams, and he denies that he had even heard of or met Mr. Williams prior to being charged with this offence. The sole issue in this case is whether Mr. Yeung drove Mr. Williams to the site in order to facilitate his fabricated confession.
Evidence of Fred Williams
[8] Mr. Williams testified that he was born and raised on Walpole Island, which is an Aboriginal reserve located at the junction of the St. Clair River and Lake St. Clair in Southwestern Ontario. He is 58 years old and stated that he has lived on Walpole Island “all of my life off and on”. In the past, he has operated “kind of a guide service” but is now in receipt of a disability pension. He lives with his 83 year old mother, who is recovering from cancer and has kidney problems, and with his younger brother who suffers from schizophrenia. Prior to March 2011, he had never visited the district of Parry Sound, Ontario.
[9] Mr. Williams stated that his involvement in the matter before the court came about when he received a visit from Mr. Harry Pinnance, another resident of the reserve. Mr. Pinnance operated a transportation service that brought members of the Walpole Island community to Toronto for medical appointments. Mr. Pinnance informed him that one of his old friends was in trouble and “needs a little favour”. According to Mr. Pinnance, Mr. Williams would be the “perfect” person to provide the favour because he did not have a criminal record related to drugs.
[10] The friend who needed the favour was Mr. Hau Duong and Mr. Duong had been charged with growing marijuana somewhere in the district of Parry Sound. Mr. Pinnance told Mr. Williams that Mr. Duong was prepared to pay $25,000 to someone who would confess to growing the marijuana and threatening him with harm if he did not allow his Parry Sound property to be used for the grow-op.
[11] Mr. Williams agreed to meet with Mr. Duong. Mr. Pinnance took him to Toronto on one of the medical transportation trips. Mr. Pinnance introduced him to Mr. Duong, who took him to an Oriental restaurant where they had lunch and talked about Mr. Duong’s proposal. Initially, Mr. Williams was not too keen about the plan but Mr. Duong assured him that since he did not have any convictions for drug offences it was likely that he would not “do any time” or at least “nothing big”.
[12] Mr. Pinnance was not at the initial lunch meeting, but following this meeting he told Mr. Williams that Mr. Duong liked him and wanted to get to know him a little better. Mr. Pinnance arranged three more lunch meetings between Mr. Williams and Mr. Duong, taking Mr. Williams with him to Toronto on his medical appointment runs. Mr. Pinnance attended several of these meetings as well.
[13] Eventually, Mr. Williams agreed to participate in the plan and it was decided that he should familiarize himself with the property by paying a visit to it. Since the terms of Mr. Duong’s recognizance did not permit him to visit the district of Parry Sound, he proposed that his brother, Simon, would take Mr. Williams and Mr. Pinnance to view the property.
[14] Shortly thereafter, early on what Mr. Williams described as a snowy morning, Mr. Pinnance picked up Mr. Williams at his residence on Walpole Island and the two men drove east along Highway 401 to Toronto, then north on Highway 400. When they reached an intersection, which Mr. Williams recalls was close to Canada’s Wonderland, they turned off the highway and drove to a small mall that had a “Futures” store. Mr. Duong had arranged for his brother to meet them at this plaza and Mr. Yeung was waiting for them when they arrived.
[15] Mr. Williams stated that he had not met Mr. Yeung prior to this visit. He testified that Mr. Yeung drove him and Mr. Pinnance to the site of the grow-op, somewhere north of the town of Parry Sound. He described Mr. Yeung’s vehicle as a silver or gray “jeep like vehicle” or SUV.
[16] Mr. Williams recalls that just before arriving at the property they crossed a small, one lane steel bridge. They then parked in a small parking area at the entrance to the property. From there they proceeded on foot through the snow, past what appeared to be a beaver pond and then arrived at what he described as a blue two story little cottage. Mr. Williams recalls seeing a large yellow freight container on the property that Mr. Yeung told him was used to store the marijuana. There was also a small camper trailer on the site. Mr. Yeung told him that the marijuana was grown on the other side of the beaver pond.
[17] Mr. Williams testified that Mr. Pinnance took a number of photographs of the site with his cell phone camera. Photos were entered into evidence and Mr. Williams identified photographs of a blue cottage, a yellow coloured freight container, and a path in the woods, stating that these depicted the property that he visited with Mr. Pinnance and Mr. Yeung.
[18] Mr. Williams stated that about 10 days after his visit to the grow-property he went to Toronto with Mr. Pinnance where he met with Mr. Duong and a person who was introduced as Mr. Duong’s wife. Mr. Williams was given $400 cash for expenses by Mr. Duong, who then arranged for someone to drive him to Parry Sound where he checked into the Comfort Inn. Mr. Williams was told that an appointment had been made for him to meet with the OPP two days later, on April 5, 2011.
[19] On the morning of April 5, 2011, Mr. Williams met with Officer Marshall and informed him that the marijuana they picked up was his and that he had threatened Mr. Duong into letting him use the property. Later that afternoon he met with another officer, Officer Betts, and after talking to Officer Betts, he admitted that he had fabricated the story about the marijuana being his. He subsequently pleaded guilty to a charge of fabricating evidence and was sentenced to 60 days custody less time served.
[20] Mr. Williams identified a number of documents as being on his person when he was arrested in Parry Sound. One was a bill from the Comfort Inn dated April 5, 2011, for a two night stay as his bill. The bill was marked as paid in cash. He also identified a phone number written on a business card from a Toronto lawyer, Donna Pledge, as a card on which he wrote Mr. Duong’s phone number. He explained that Ms. Pledge was Mr. Duong’s lawyer and that he had visited Ms. Pledge’s office with Mr. Duong, at which time he wrote the phone number on the card. He stated that when he attended Ms. Pledge’s office, he was referred to another lawyer in an adjacent office where he signed a statement confirming that the grow-op was his.
[21] Mr. Williams also identified a business card with the name “Earl Bale’s Walk-In clinic” on it as a business card from the clinic to which Mr. Pinnance drove the residents of Walpole Island. Finally, Mr. Williams identified a business card with the name “Feng Ye Construction” on it as a card that was given to him by the person who Mr. Duong had arranged to drive him to Parry Sound for his visit with the police.
Evidence of Detective Constable Ronald Marshall
[22] Officer Ronald Marshall is a detective constable with the Ontario Provincial Police, Parry Sound Detachment, and is the investigating officer with respect to this offence. He explained that in October 2010, he and several officers attended at a property in Carling Township where they discovered Mr. Hau Duong in possession of over 700 pounds of marijuana and an illegal firearm. Mr. Duong was convicted of a number of offences arising from the discovery of the marijuana, convictions which are now the subject of an appeal.
[23] Officer Marshall identified a recognizance of bail document as Mr. Duong’s recognizance that was issued to him in relation to his grow-op charges, and he confirmed that the terms of the recognizance restricted Mr. Duong from attending in the district of Parry Sound and named his brother, Simon Yeung, as his surety.
[24] Officer Marshall also identified the Comfort Inn receipt as the receipt issued to Mr. Williams for his two night stay prior to his visit to the police station. This was recovered from Mr. Williams when he was arrested, together with the business card from Ms. Pledge, the business card for the walk-in clinic, and the business card for Feng Ye Construction.
[25] Officer Marshall testified that on March 31, 2011, he received a call from a female person who identified herself as Judy and who was calling from the law firm of Donna Pledge. She arranged an appointment for a Mr. Williams to meet with him on the morning of April 5, 2011.
[26] Officer Marshall met with Mr. Williams as agreed. Initially Mr. Williams told him that the marijuana plants located at the district of Parry Sound property were his, that Mr. Duong was not a willing participant in the production of the marijuana, and that it had been his intention to traffic this marijuana into the United States. He arrested Mr. Williams for cultivation of marijuana and conspiracy to traffic. Mr. Williams was later interviewed by Officer Betts, at which time he admitted that he was not involved in the marijuana grow-op and that he had become involved with Mr. Duong because Mr. Pinnance told him that Mr. Duong needed a favour and would pay him if he admitted to being the owner of the marijuana.
[27] Officer Marshall testified that he seized Mr. William’s cell phone, as well as three cell phones belonging to Mr. Pinnance. A search of their phone records revealed that there were numerous calls made between Mr. Pinnance and Mr. Williams in March 2011 through April 5, 2011. Notably there were:
▪ Four missed calls from Mr. Pinnance to Mr. Williams on April 5, 2011, which was the day Mr. Williams visited the Parry Sound OPP detachment and was arrested.
▪ Two calls from Mr. Williams’s phone to Mr. Pinnance on April 4, 2011. There was also a call on March 26, 2011, the day prior to the day he alleges Mr. Williams visited the property with Mr. Yeung.
▪ There were also a number of text messages during the same time period, including a text from Mr. Pinnance to Mr. Williams to call “Harry” at a cell phone number that belonged to Mr. Duong (Mr. Duong uses both the names Hau Duong and Harry Duong).
[28] The search of Mr. William’s cell phone records also revealed that he received a call from Ms. Pledge’s office on March 15, 2011.
[29] Officer Marshall confirmed that the photographs, identified by Mr. Williams as depicting the property that he visited with Mr. Pinnance and Mr. Yeung, were taken from one of the telephones seized from Mr. Pinnance. They were date stamped March 27, 2011, which was a Sunday. He also confirmed that the photographs depicted the property where the marijuana was found.
[30] Officer Marshall conducted a vehicle ownership search with respect to Simon Yeung, which confirmed that on March 27, 2011, Mr. Yeung was the registered owner of a 1999 Toyota 4 Runner, gray in colour.
Evidence of the Accused, Simon Yeung
[31] Mr. Yeung is 49 years old. He was born in Vietnam and came to Canada in 1987. For the last 19 years, he has worked in shipping and receiving with a steel company. He works Monday to Friday and has Saturdays and Sundays off. He does free-lance work on weekends, painting, tiling, and baseboard trimming. He is married and lives in the town of Aurora, north of Toronto. He does not have a criminal record.
[32] Mr. Yeung is familiar with his brother’s property north of Parry Sound in the township of Carling. He testified that he assisted his brother in the construction of what he called “the cottage” on the property. He agreed that there was a little parking area for cars some distance from the house, and from there it takes about 8 to 10 minutes to walk to the cottage. He also agreed that there is a small bridge that must be crossed over just before the parking area.
[33] Mr. Yeung denied knowing that marijuana was being grown on the property and claimed that he had never seen a shipping container on his visits to the property prior to the time that his brother was charged with the drug offences.
[34] Mr. Yeung agreed that he had posted bail for his brother on October 15, 2010. Two weekends later, he attended at the property at the request of his brother to check on whether the property had sustained any damage and to do some maintenance. At that time, he saw the yellow container.
[35] Mr. Yeung denied meeting Mr. Williams or Mr. Pinnance prior to these court proceedings and he denied that he drove them to the site of the grow-op. He said he would not have driven to the property in March 2011, because he did not like to drive in the snow.
[36] Mr. Yeung testified that he never visited the Parry Sound property during the week because of work commitments. He only visited the property on Saturdays or Sundays. He admitted that he was the owner of a gray four by four Toyota 4 Runner.
Credibility Findings
[37] Mr. Yeung denies that he was involved in bringing Mr. Williams to Parry Sound, and denies that he knew of the existence of a grow-op on the Parry Sound property. His evidence stands in direct contradiction to that of Mr. Williams.
[38] In assessing the truthfulness of these two witnesses, counsel for Mr. Yeung asks me to compare them. He points out that Mr. Williams comes to court with a criminal record. He was convicted of impaired driving in 1988, and 1999, and of driving with over 80 in 2003. More recently, he was convicted of fabricating evidence in relation to this matter. On the other hand, Mr. Yeung is married, steadily employed, and owns his own home. He does not have a criminal record.
[39] I do not disagree with defence counsel’s submission that I must consider Mr. William’s criminal record in assessing his credibility. In doing so, I am also mindful of the fact that in order to convict Mr. Yeung of this offence, I must find that Mr. William’s evidence is sufficiently reliable upon which to found a conviction.
[40] In the circumstances of this case, I am not prepared to make an adverse finding of credibility against Mr. Williams solely on the basis that he has a criminal record. In assessing how much weight to place on the fact that he has a criminal record, it is my view that the following considerations apply.
[41] Firstly, the nature of the evidence that was given by Mr. Williams in this proceeding is such that if I find that he is not being truthful with the court, and his evidence is a fabrication, then I must almost certainly find that he is a very clever and manipulative individual who is playing an integral role in a larger and complex scheme to convict an innocent man.
[42] Clearly, Mr. Williams is not a sophisticated man. He is a simple man who I expect finds life away from the Walpole Island reserve very challenging. For example, when he was asked where Walpole Island was located, he replied that Sarnia was located to the southwest of the Island. In fact, the City of Sarnia lies to the north of Walpole Island. When he was asked about the location of some of the places he attended in the City of Toronto, it was obvious that he had no knowledge of the road and highway network around the city, or the names of the various cities and communities situated between Toronto and Parry Sound.
[43] Based on my observations of Mr. Williams, I expect that it did not take Officers Marshall and Betts very long to realize that Mr. Williams could not possibly have been responsible for what was a sophisticated grow-op in the backwoods of Carling Township. Mr. Williams comes across as a “pleaser” and a follower, a perfect dupe for Mr. Pinnance to introduce to his friend who “needed a favour”.
[44] Secondly, the nature of the offences that Mr. Williams has been convicted of prior to this incident, i.e. drinking and driving, is also relevant in how his record impacts on his credibility. As I have indicated, if Mr. Williams is fabricating his evidence in this proceeding, I must find that he is capable of a considerable amount of cunning, planning and deliberation. Drinking and driving are unsophisticated offences characterized by immaturity, negligence, and carelessness. People who are convicted of drinking and driving offences are not necessarily untruthful individuals. Significantly, the charge of fabricating evidence, to which Mr. Williams pleaded guilty, arose because he was incapable of the planning and deliberation that was required to tell a convincing lie.
[45] In conclusion, in assessing Mr. William’s credibility in this case, I am not prepared to place a significant amount of weight on the fact that he has a criminal record.
Discussion
[46] Although Mr. Williams’ evidence was at times confusing, it had an internal consistency and complexity that underscored its reliability and credibility, and it was corroborated by the other evidence.
[47] The evidence that corroborates Mr. Williams’ evidence and buttresses his credibility includes the following.
[48] Firstly, the terms of his recognizance prohibited Mr. Duong from driving to the district of Parry Sound and so he needed someone else to drive Mr. Williams to the site of the grow-op, someone who knew the location of this remote property. Mr. Duong lived with Mr. Yeung at the time. Mr. Yeung had worked on the property and had been sent by Mr. Duong to inspect the property several weeks after his arrest in October 2010. It was reasonable and logical that he would ask his younger brother to assist him in familiarizing Mr. Williams and Mr. Pinnance with the property.
[49] Secondly, Mr. Williams’ account of his trip to the property and what he observed when he arrived is supported by other evidence. For example, he described Mr. Yeung’s vehicle as “like a silver jeep”. In fact, Mr. Yeung owned a gray coloured Toyota 4 Runner. It is unlikely that he could have guessed the colour of Mr. Yeung’s vehicle, or guessed that it was a jeep or four wheel drive type vehicle.
[50] Mr. Williams also described driving over a small, one lane bridge just before arriving at the property. He described having to park the vehicle and then walk onto the property for some distance before arriving at the blue coloured house. These facts where confirmed by Mr. Yeung, Officer Marshall, and by the photographs.
[51] Mr. Williams also stated that Mr. Yeung advised Mr. Pinnance that they could not go into the house because the pipes had burst and the cottage had flooded. This evidence is consistent with Mr. Yeung’s testimony that he had been asked to check up on the property by his brother so he would have been aware of such damages on the inside of the building.
[52] Thirdly, the cell phone evidence, combined with such things as Donna Pledge’s business card with Hau Duong’s phone number written on it, confirms that there was a considerable amount of communication among Mr. Pinnance, Mr. Duong, Ms. Pledge’s office, and Mr. Williams during the weeks and days leading up to Mr. Williams’ two trips to Parry Sound.
Decision
[53] In my view, Mr. Williams’ evidence has an internal consistency that underscores its reliability. It is supported by the facts and the other evidence. I accept his evidence as credible and truthful, and on this basis I am convinced beyond a reasonable doubt that Mr. Yeung is guilty of the offence of attempting to obstruct justice, contrary to section 139(2) of the Criminal Code.
E.J. Koke
Released: September 4, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Simon Yeung
Defendant
REASONS FOR JUDGMENT
E.J. Koke
Released: September 4, 2014