R. v. Kangarloo and Vuong

Reasons for Judgment

TUESDAY, SEPTEMBER 23, 2014

R E A S O N S F O R J U D G M E N T

MARANGER, J. (Orally):

Introduction

Ali Kangarloo and Alan Vuong stand charged on a multi-count indictment with 11 counts including four counts of conspiring with Michael Wong and Catherine Pham to possess for the purposes of trafficking marijuana, cocaine, cannabis resin and MDMA as well as a series of counts of possession for the purposes of trafficking in Cocaine, MDMA, marijuana and cannabis resin as well as two counts of possessing proceeds of crime and one count of possession of heroin. Alan Vuong is also independently charged with one count of possession of cannabis marijuana for the purposes of trafficking.

The charges arise as a result of a lengthy investigation conducted by the Ottawa Police Drug Unit called project Sleep Walker. The project had as its target a major drug trafficking ring in the city of Ottawa, the ring was suspected of trafficking in a wide variety of narcotics including heroin, cocaine, meth and marijuana. It was considered to be a large scale operation involving profits in the hundreds of thousands of dollars resulting from the purchase and sale of the illegal substances.

The investigation lasted 18 months including most of the year 2011.

There were a number of suspects believed to be involved in this drug ring the business model was thought to consist of primary suppliers who were being supplied out of Toronto, and who would hide the illegal drugs at various stash houses in the city of Ottawa. They would then be distributed to mid-level dealers who would in turn supply customers or else street or low level dealers.

The drug unit suspected that the principal suppliers and leaders of the ring were Ahmed Rezai (ph) and Fang De Lu.

The two accused before the Court are alleged to be involved as mid-level drug traffickers who would have been supplied by Rezai. However to be clear here the stakes are high as they are each specifically charged with conspiracy to possess for the purposes of trafficking and with possession for the purposes of trafficking in a very large quantity of cocaine, meth and cannabis the total value which is said to exceed $1,000,000. They are also facing proceed counts involving hundreds of thousands of dollars. As a consequence the offences they face here are at the serious end of the spectrum of cases of this type.

The investigative tools used by the drug unit police to obtain evidence in this case included the following:

• More than two dozen police officers over the course of several months conducted many hours of surveillance of the following:

a) Specific suspected stash houses unit 2, 1414 Raven Street Ottawa being one of them.

b) Vehicles owned by various parties suspected of being involved in the drug ring.

c) Individuals suspected of being involved in the drug ring.

d) Encounters involving both accused with other persons suspected of being involved in the drug ring including the main supplier.

e) Surveillance of both accused attending and leaving suspected drug stash houses.

• There was the placing of an audio-video camera at a stash house located at 59 Creighton Street in Ottawa;

• The execution of a search warrant at 1414 Raven Street, unit two. Ottawa on October 7, 2011 and the seizure of several hundreds of thousands of dollars, large quantities of cocaine and marijuana meth and some heroin as well as the usual paraphernalia consistent with drug trafficking such as debt lists,scales, etcetera.

• There was the execution of a search warrant at 153 Grenadier Way Ottawa being the residence of Alan Vuong on December 5, 2011.

The case against these two accused persons is based entirely on circumstantial evidence and what inferences can be drawn from the circumstantial evidence as a whole. There is no direct evidence of Alan Vuong or Ali Kangarloo being in possession of the significant narcotics at 1414 Raven Street or there having conspired to do so with Michael Wong and Catherine Pham.

The case although very detailed in the presentation of circumstantial evidence in large measure comes down to a fairly straightforward question. Has the prosecution satisfied me beyond a reasonable doubt that the accused before the Court conspired to be and or were in fact in possession of the illegal narcotics and money found in the bedroom of unit two 1414 Raven Street Ottawa on October 7, 2011?

Findings of fact

The evidence at trial consisted of the testimony of several police officers who conducted surveillance in the city of Ottawa; the police officers who executed the search warrants at 1414 Raven Street; the audio-video evidence from the stash house located at 59 Creighton Street Ottawa; the identification officer who seized the drugs, money and relevant material located at 1414 Raven Street; the videotape evidence of some of the surveillance and encounters between some of the parties including both accused; the surveillance of both accused going to and leaving 1414 Raven Street; photographs of the accused as part of some of the surveillance conducted; a series of admissions concerning continuity of exhibits surveillance evidence coming out of the city of Toronto; items seized at 153 Grenadier Way and the ownership of those items by Alan Vuong; and finally there was the testimony of the accused Alan Vuong.

Based upon this evidence I make the following findings of fact and come to the following conclusions:

• Ahmed Rezai was very likely a major supplier of drugs in the Ottawa area, the supply included hard drugs, heroin, meth and cocaine. He obtained the supplies from the city of Toronto. The evidence by the surveillance officers of his coming and going to the Tremblay train station in Ottawa; the evidence of surveillance police officers in the city of Toronto; the audio-video evidence from Creighton Street and the narcotics found therein; the specific surveillance conducted of him on January 9th, April 11th and during the summer and fall of 2011 show a pattern whereby he is picking up and delivering what is more than likely narcotics in the city of Ottawa. I would also rely on certain parts of the testimony of Alan Vuong to support this finding.

• 1414 Raven Street and 59 Creighton Street Ottawa were stash houses, they were designated for the storing of illegal drugs the warrant executed and the items seized on October 7, 2011 at Raven Street and the audio-video evidence of 59 Creighton and items seized therein allow for this conclusion.

• Unit two, 1414 Raven Street is a three-bedroom apartment located in a triplex. Virtually all of the illegal drugs, money and drug trafficking paraphernalia associated with the first 11 counts in the indictment were located in one of the two bedrooms. The room had a door that was capable of being locked the remainder of the unit was occupied by Michael Wong and Edward Tam. It was lived in at the time the warrant was executed. The evidence from the police officers who executed the warrant and seized the material supports this finding.

• Alan Vuong and Ali Kangarloo were at a minimum acquainted with Ahmed Rezai.

• The following encounters between Ahmed Rezai and the accused took place on August 3, 2011. Officer Smith described that at 17:13 target Rezai is with two other males, male number one light or middle-eastern, green golf shirt, male number two possible Asian white T-shirt baseball hat, eye glasses; 17:18, Rezai possibly texting; 17:24, male number one doing most of the talking; 17:25, handshakes male number one and number two walking towards the restaurant’s entrance. Alan Vuong in his testimony confirmed that he and Ali Kangarloo had met Ahmed Rezai at the Host India restaurant on that date.

• On September 7, 2011 video surveillance demonstrates that Alan Vuong received a bag from Ahmed Rezai in the parking lot of the Host India restaurant.

• On October 4, 2011 Ali Kangarloo and Ahmed Rezai are seen at 199 Kent Street Ottawa, Ali Kangarloo is seeing carrying a black flat bag with handles.

• Alan Vuong was seen going into and out of 1414 Raven Street on numerous occasions sometimes empty-handed sometimes carrying different bags including on June 29, 2011 someone fitting his description with a black bag over his shoulder was exiting Raven Street. July 14th, July 26th and July 27th, he’s possibly seen parking at and or entering 1414 Raven. September 7, 2011 he is seen transporting the bag he received from Ahmed Rezai into 1414 Raven. On September 21, 2011 Alan Vuong is seen entering Raven with a white and black leather bag. On September 22, 2011 someone possibly Alan Vuong at 16:57 is seen entering Raven carrying a blue nylon bag, at 19:58 that same day Alan Vuong is seen walking into the Raven Street building. On October 4, 2011 Alan Vuong is seen at various times carrying bags into 1414 Raven including an orange gift bag and what was described in the surveillance as follows, Alan Vuong carrying the royal blue fabric type bag under his right arm. Similar type bag used at grocery stores, the bag wrapped around something as it was tucked up underneath Alan Vuong’s arm, the concealed item within the blue bag appeared to be the size of a standard type masonry brick, Alan Vuong inside 1414 Raven. October 6, 2011 at 21:52, Alan Vuong is likely seen going into Raven Street with two dark color cloth bags, Alan Vuong is seen exiting Raven that day at 23:22.

• Ali Kangarloo was either seen or possibly seen going in and out of 1414 Raven on the following occasions: on July 14, 2011 someone fitting his description was seen going into Raven with a black duffel bag, on July 26th someone fitting his description was seen leaving the driveway at Raven. On October 4, 2011 he was seen entering Raven with a black bag, the bag he retrieved from Kent Street with Ahmed Rezai. On October 7th, he was found in the residence at the time of the execution of a warrant.

• In general there was a high volume of people going in and out of 1414 Raven.

• Alan Vuong and Ali Kangarloo did not live at 1414 Raven. Ali Kangarloo was arrested on October 7, 2011 and on his person was a set of keys one of keys was to the door of the drug room, the keys were filed as an exhibit – a photograph of the keys was also filed as an exhibit they can be described as three keys and a fob attached to a Hunt Club Honda key ring, two of the keys were described as keys to the apartment and stash room the third key was to a motor vehicle being a Subaru. Michael Wong at one time and possibly on October 7, 2011 was the owner of a Subaru.

• Alan Vuong testified and during the course his testimony provided an explanation for how the keys came to be in Ali Kangarloo’s possession he also testified that the stash room door was always closed whenever he attended Raven Street.

• Alan Vuong possessed marijuana and items associated with marijuana trafficking at his residence at 153 Grenadier Way. Alan Vuong trafficked in marijuana at a rate of two to three pounds a week in 2010-2011.

• Surveillance at 1414 Raven Street while frequent could not be nor was it close to 24/7.

Law and Analysis

To establish the accused guilt of possession for the purposes of trafficking or conspiracy to possess for the purposes of trafficking in the context of this case, the Crown has to prove that the accused had both knowledge and control of the contents of the stash room at unit two, 1414 Raven Street Ottawa.

That the possession in this case was for the purposes of trafficking is not an issue. The quantity of narcotics, money and drug trafficking paraphernalia found on October 7, 2011 during the execution of the search warrant overwhelmingly support the proposition that the illegal narcotics were for the purposes of trafficking.

In R v. Pham 2005 44671 (ON CA), 2005 77 O.R. 3rd 401 Ontario CA the Court provided the following summary of the legal considerations when a Court is called upon to deal with the issue of possession of narcotics. Paragraph 12:

"The issue at trial was whether the appellant had knowledge and control of the cocaine found in the bathroom and therefore had it in her possession.

Section 2 of the Controlled Drugs and Substances Act adopts the definition of “possession” s.4(3) of the Criminal Code. That section reads:

4(3) For the purposes of this Act,

(a)a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or [page 406]

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and

(b) where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Section 4(3) of the Code creates three types of possession:

(i) personal possession as outlined in s.4(3)(a);

(ii) constructive possession as set out in s.4(3)(a)(i) and s.4(3)(a)(ii); and

(iii) joint possession as defined in s.4(3)(b).

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed."

See R. v. Caldwell and R. v. Gray

In order to constitute joint possession pursuant to s.4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession.

See R. v. Terrence, R. v. Williams, R. v. Barreau and R. v. Chambers

The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling [1988] OJ 107:

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The Court of Appeal decision R. v. Sparling upheld the above passage as being sufficient evidence to infer knowledge.

The onus is on the Crown to prove beyond a reasonable doubt all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers (supra) at page 448 C.C.C., page 407, Martin J. A. noted that the Court may draw appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug."

In cases founded on circumstantial evidence, the Crown must establish beyond a reasonable doubt that the only reasonable inference to be drawn from the totality of circumstantial evidence is the guilt of the accused before the Court. The Crown does not have to prove or establish every single piece of individual evidence beyond a reasonable doubt only guilt beyond a reasonable doubt based on the totality of the evidence.

The case against Alan Vuong

To convict Alan Vuong of the first 11 counts in the indictment I have to be satisfied beyond a reasonable doubt that he had knowledge and control over the items seized by the police drug unit on October 7, 2011 at 1414 Raven Street Ottawa.

While the evidence presented by the Crown including: the surveillance of Alan Vuong of his comings and goings from 1414 Raven, his carrying various bags while attending Raven including some specific bags i.e. a blue and an orange bag; and the meetings with various other suspects allow for an inference that Alan Vuong was a cocaine, meth and heroin drug dealer and that he had knowledge and control over the contents of the stash room at 1414 Raven. This available inference, however, has to be measured against his testimony.

Alan Vuong testified and in no uncertain terms indicated that he had no knowledge of the contents of the drug/ stash room at 1414 Raven, that he was in fact a marijuana drug dealer, that his drug dealing was at a fairly high scale i.e. two to three pounds a week. He explained the two encounters he had with Ahmed Rezai and that on September 7, 2011 he obtained half a pound of marijuana from him. He explained his frequent attendances at 1414 Raven Street by stipulating that he was a very close friend of Michael Wong.

When an accused testifies I am obliged to instruct myself and apply the principles in the W. D. case. In this instance while I cannot necessarily say that I accept the accused’s testimony wholeheartedly, I can say that Alan Vuong’s testimony when examined in conjunction with some of the evidence and lack of evidence in proof of the charge raises a reasonable doubt in my mind as to his level of involvement in this case. The evidence or lack thereof in this regard included the following. The only drug found at Alan Vuong’s residence at 139 Grenadier Way was marijuana. He led a relatively modest lifestyle, he was never found with a large quantity of money. Wong had marijuana in large supply in the stash room. There is no forensic evidence connecting him to anything in that room and there is an absence of any direct evidence of his being in possession of or dealing in hard narcotics.

While I am suspicious about his level of involvement here, when all is said and done I am not sure of his guilt and therefore I find Alan Vuong not guilty of counts one to 11 and guilty of count 12.

The case against Ali Kangarloo

The case against Ali Kangarloo is made up of the inferences that the Crown has suggested should be drawn from the surveillance evidence which includes his meetings with Rezai, his attendances at 1414 Raven Street where he is carrying bags into and out of that residence taken, with the evidence of his arrest at 1414 Raven Street on October 7, 2011, and the fact that he is found in possession of a key to the front door of Raven and to the stash room containing all the narcotics.

Detective Robert Smith testified that when the warrant was executed on October 7, 2011 at 1414 Raven Street Ali Kangarloo was found lying in the bedroom. He was arrested and searched and on his person was found a set of keys. On the set of keys were three keys one that fit the front door of 1414 Raven unit two, the other key worked on the door to the room where all the narcotics, money and drug trafficking paraphernalia were located. This evidence of possessing the keys taken in conjunction with the evidence provided by the police officers who conducted surveillance without any other evidence created a compelling circumstantial evidence case where a conviction would have been the result.

However, the force of the evidence of the possession of the keys has to be considered and analyzed with the testimony of Alan Vuong who offered an explanation as how those keys may have gotten into Ali Kangarloo’s possession and what knowledge Ali Kangarloo ever had about the stash room. Alan Vuong’s testimony regarding the keys and Ali Kangarloo’s attendance at 1414 Raven can be highlighted as follows:

• Alan Vuong testified that he frequently attended Michael Wong’s residence at 1414 Raven Street to smoke weed and to socialise.

• While Ali Kangarloo knew Wong he was not a close friend and in all likelihood the only time Ali Kangarloo would have attended Wong’s residence would have been in the company of Alan Vuong.

• He testified that he was with Ali Kangarloo when he entered the residence with the black bag and that it was possible that the black bag contained groceries, and that the black bag was not put into the stash room and that Ali Kangarloo had never been in the stash room nor did he have any knowledge of its contents.

• In October 2011 Alan Vuong would have been in possession of a set of keys to 1414 Raven, because Michael Wong was gone on a trip to the United States and asked Alan Vuong to take care of his pet dog Twix.

• He also testified that from September 11th through to September 28, 2011 he had usage of Ali Kangarloo Honda vehicle while Ali Kangarloo was in New York and consequently would have been in possession of keys belonging to Ali Kangarloo.

• In the evening and early morning hours of October 6th and October 7th, he, Ali Kangarloo and Michael Wong were at 1414 Raven smoking marijuana and watching movies then at about 2 O’clock in the morning October 7th while stoned on marijuana he decided at that point to co-mingle Ali Kangarloo’s car keys and the apartment keys and leave them on the table.

• He also testified that Ali Kangarloo would never have been in possession of keys to that apartment and that they would have been on his person by happenstance.

• In cross-examination it was brought out that the keys that were found on Ali Kangarloo didn’t contain his car keys but contained the car key to a Subaru vehicle a fob and two apartment keys on a Honda key chain.

• Alan Vuong indicated that the Subaru key as far as he knew would have been Michael Wong’s key to his Subaru vehicle.

Alan Vuong’s evidence was far from clear as to the issue of the keys, however he seemed genuinely surprised when giving his evidence as to the exact keys that were found on Ali Kangarloo that night this especially so under cross-examination.

While it can certainly be argued that Vuong’s testimony should be rejected as simply one friend attempting to extricate another friend from being found guilty of very serious crimes. The problem I have with rejecting his evidence outright would be that I would have to ignore some of the other evidence presented at this trial that tends to support his story. The surveillance evidence supports that Kangarloo did not attend 1414 Raven frequently and when he did it was with Alan Vuong. There is no doubt that he had and was using Ali Kangarloo’s vehicle in late September 2011, evidence of a traffic violation in and around that timeframe while using Kangarloo’s vehicle supports this proposition. That the friends here used each other’s vehicle on a regular basis is supported by the surveillance evidence. That he had keys belonging to MIchael Wong in or around that timeframe is also plausible Wong was gone on a trip, Wong did have a little dog and Vuong attended 1414 Raven frequently.

It seems to me that it is plausible that the keys came into Kangarloo’s possession by happenstance in fact I don’t think they are his keys in all likelihood they are Wong’s keys as he is the only one that ever had a Subaru vehicle.

This is one of those cases where in essence it comes down to believing something is a high probability versus a certainty. It comes down to the burden of proof and while I can certainly conclude that I believe that there is a strong likelihood Ali Kangarloo knew about those drugs in that room and had some measure of control over those drugs in that room I cannot when I analyse the totality of the evidence, including the testimony of Alan Vuong and honestly apply the burden of proof, conclude that I am sure he was in possession of the contents of that room at 1414 Raven or that he was in conspiracy with two others to be in possession of the contents of that room.

I therefore find Ali Kangarloo not guilty on all counts.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v. Kangarloo & Vuong in the Ontario Court of Justice, held at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411_CR34_20140923_085459__10_MARANGRO.dcr which has been certified in Form 1.

Date Linda A. Lebeau

Authorized Court Transcriptionist (ACT)

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE AUTHORIZED COURT TRANSCRIPTIONIST (ACT)

Ontario Regulation 158/03 – Evidence Act

*This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.

Information No. 12-DV6888

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

KANGARLOO & VUONG

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE R. MARANGER

On September 23, 2014, at OTTAWA, Ontario

APPEARANCES:

D. Hayton Counsel for the Provincial Crown

J. Foord and E. Lyttle Counsels for Kangarloo & Vuong

ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S

ENTERED ON PAGE

REASONS FOR JUDGMENT

1

Legend

[sic] – Indicates preceding word has been

reproduced verbatim and is not a transcription

error.

(ph) – Indicates preceding word has been spelled

phonetically.

Transcript Ordered:. . . . . . . . . . . . . November 3, 2014

Transcript Completed:. . . . . . . . . . . . November 10, 2014

Approved by Maranger, J.: . . . . . . . . .

Ordering Party Notified: . . . . . . . . .