CITATION: R. v. Dinh, 2016 ONSC 929
COURT FILE NO.: CRIM(F) 796/15
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Letman, for the Crown
- and -
KHANH XUAN DINH
K. Schofield and O. Hue, for the Defendant
HEARD: January 28 and 29, 2016
DECISION: February 5, 2016
REASONS FOR JUDGMENT
André J.
[1] On October 4, 2013, Cst. Ken Munroe, a member of the Peel Regional Police Force, stopped Mr. Khanh Xuan Dinh’s (“Mr. Dinh”) vehicle on Hurontario Street, approximately 25 metres south of Dundas Street in Mississauga. Another officer, Cst. Clayton Whalen, arrived at the scene and, moments later, he advised Cst. Munroe that he had found a plastic bag on the road a few feet from Mr. Dinh’s car. The bag was later found to contain 42.5 grams of cocaine. The sole issue in this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Dinh had possession of the cocaine found by Cst. Whalen.
SUMMARY OF THE EVIDENCE
[2] Cst. Munroe testified that he stopped Mr. Dinh’s vehicle at 4:43 a.m., after observing him speeding and turning left at an intersection while a pedestrian was walking eastbound through it. It had rained heavily earlier that evening and the rain had continued sporadically. However, at the time of the stop there was a light mist. The officer could not recall at what time the rain had stopped but conceded under cross-examination that it could have stopped raining about an hour before he stopped Mr. Dinh.
[3] After detecting some signs of alcohol impairment, Cst. Munroe issued an Approved Screening Device (“ASD”) demand to Mr. Dinh. He then blew into the ASD and failed. The officer arrested Mr. Dinh and asked for another officer to attend the scene to seize Mr. Dinh’s vehicle. Cst. Whalen subsequently arrived at the scene. Mr. Dinh told Cst. Munroe that his wallet was in the middle console of his vehicle. Cst. Munroe asked his colleague to retrieve Mr. Dinh’s wallet from the vehicle. A few moments later, Cst. Whalen advised Cst. Munroe that he had found a vacuum-sealed plastic bag with a white powdery substance within it. Cst. Munroe described the bag in his examination-in-chief as being “very clear and dry” which led him to believe that Mr. Dinh had discarded it. There was no one else around Mr. Dinh and the officers at this time.
[4] Under cross-examination, Cst. Munroe conceded that he never lost sight of Mr. Dinh and did not observe any strange movement by Mr. Dinh. He did not see Mr. Dinh open the passenger door nor did he see the passenger window down. He admitted to doing a pat down search of Mr. Dinh but found no drugs or drug paraphernalia on him. He did not find any drug related items in Mr. Dinh’s vehicle. The officer testified that the area where Mr. Dinh was stopped was “a high crime area”. He conceded that he did not know how long the bag was on the ground; however, he had a suspicion that Mr. Dinh had placed it there. The road and sidewalk were wet. The bag was clean but damp. The officer stated that it appeared to him that the package had not been there “very long”.
[5] Cst. Whalen testified that he stopped by the scene at 5:19 a.m. to see if Cst. Munroe needed assistance. Cst. Munroe asked him to retrieve Mr. Dinh’s wallet on the passenger seat of the vehicle. Cst. Whalen proceeded to the passenger side and saw the wallet on the passenger seat. He also noticed a vacuum-sealed substance “directly outside” the passenger side window on the sidewalk, two to three feet from Mr. Dinh’s vehicle. The passenger window was ajar two to three inches. The package was roughly dry and clean. Cst. Whalen could not recall if the road or sidewalk were wet. There was no one else around when he saw the package.
[6] Cst. Whalen further testified that there was a light mist when he arrived at the scene. He admitted that the package could have been there at 3:30 a.m. if the rain had stopped at that time.
[7] Cst. Heather Paul arrived at the scene of the arrest at 5:14 a.m. She offered assistance with the seizure of Mr. Dinh’s vehicle. Cst. Whalen helped her conduct an inventory of Mr. Dinh’s vehicle contents.
[8] At one point, Cst. Whalen showed her a small vacuum-sealed bag which he claimed to have found outside the passenger side of Mr. Dinh’s vehicle. Cst. Paul maintained that she had a vague recollection of seeing the bag on the driveway but could not say so with any degree of certainty. She described the roadway as shiny and wet.
[9] She did not see the package at the scene and only handled it at the division. Cst. Paul described the bag as “completely dry”. She added that “it was pristine” and that there were “no glistening rain drops” on it.
[10] Under cross-examination, Cst. Paul reiterated that the bag was neither “damp” nor “pretty damp”. She conceded that it was not raining at the time when she arrived and that she did not know “for sure” when it stopped raining. It stopped raining, she testified, “within an hour” of her arrival at 5:14 a.m.
[11] Constable Andrew Harris was qualified, on consent, as an expert in the sale of cocaine, its methods of use, along with its quantities and weight. He opined that Mr. Dinh was in possession of cocaine for the purpose of trafficking pursuant to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[12] Mr. Dinh called no evidence.
ANALYSIS
[13] The Crown submits that, based on the circumstantial evidence in this case, it proved Mr. Dinh’s guilt beyond a reasonable doubt.
[14] Defence counsel demurs and suggests that the Crown’s evidence regarding the critical issue of possession falls significantly short of the requisite standard of proof in a criminal trial.
[15] The standard of proof in cases based on circumstantial evidence is that the accused’s guilt must be the only rational conclusion to be drawn from the evidence: see Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227; 186 E.R. 1136.
[16] Undoubtedly, the evidence of all three officers point to Mr. Dinh’s guilt. The bag was found within a short distance from his car. The package was clean and relatively dry, supporting an inference that it was not at the location for a very long time. The vehicle’s passenger window had been rolled down two to three inches. There was no one else in close proximity to Mr. Dinh’s vehicle.
[17] In my view however, the Crown’s evidence does not permit me to conclude that Mr. Dinh’s guilt is the only rational conclusion to be drawn from the evidence. Constables Munroe and Whalen conceded that the package was damp, therefore suggesting that it could have been there for an indeterminate period of time. Cst. Paul insisted that the bag was pristine and definitely dry, thereby raising an inference that Mr. Dinh had dropped it there.
[18] Cst. Paul doth protest too much, methinks. She did not handle the package at the scene. She was unsure whether or not she had seen it on the road or sidewalk. She had stood on the driver’s side of the vehicle, unlike Cst. Munroe.
[19] Cst. Paul testified that the rain had stopped within an hour of her arrival, at 5:14 a.m. The first two officers testified that there was a light mist when they arrived. Neither knew how long the bag had lain on the ground. The fact that it was damp raises an inference that it could have been there before Mr. Dinh was stopped.
[20] Cst. Whalen testified that the passenger window of Mr. Dinh’s car had been rolled down two to three inches. However, Cst. Munroe testified that he did not see Mr. Dinh throw anything out of the car nor did he see any strange movement by Mr. Dinh.
[21] The Crown further points to the fact that no one, other than Mr. Dinh, was in the vicinity when Cst. Whalen found the bag with cocaine. However, this is a very busy intersection and also a high crime area, according to Cst. Munroe. No one knows the number of persons who were present at the location before Cst. Munroe stopped Mr. Dinh. Coupled with the fact that none of the police witnesses knew for sure how long the bag had been at the location where Cst. Whalen found it, it would be improper to conclude, beyond a reasonable doubt, that no one other than Mr. Dinh had been in possession of the plastic bag with cocaine.
CONCLUSION
[22] In my view, the Crown has failed to prove beyond a reasonable doubt that Mr. Dinh was in possession of the cocaine found in the vicinity of his car.
[23] Accordingly, he is acquitted.
André J.
Released: February 5, 2016
CITATION: R. v. Dinh, 2016 ONSC 929
COURT FILE NO.: CRIMJ(F) 796/15
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KHANH XUAN DINH
REASONS FOR JUDGMENT
André J.
Released: February 5, 2016