Court File and Parties

Court File No.: CR-16-90000570 Date: 2019-01-08 Ontario Superior Court of Justice

BETWEEN: Her Majesty the Queen – and – Justin Hung, Applicant/Accused

Counsel: Rick Visca and Julia DeFilippis for the Crown Reid Rusonik, for Mr. Hung

Heard: November 7, 2018

Reasons on Application for Order to Reopen the Trial and Declaring a Mistrial

Garton J.

[1] On March 27, 2018, I found Mr. Hung guilty of possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”). The trial was not lengthy. The Crown’s case consisted of an agreed statement of facts (“ASF”), along with two very brief videos. The first video shows Mr. Hung’s apartment on July 8, 2015, after the police had entered and secured it pursuant to a search warrant. The second video shows the apartment after the police had conducted their search.

[2] During the search of the accused’s residence, the police seized a bag containing methamphetamine tablets located on a shelf in the front hall closet. The tablets were in a bag on which the words “food saver” and “5000” were written in black marker. Mr. Hung was arrested and charged in relation to the tablets, as well as in relation to 20 grams of ketamine and 400 grams of marihuana found in other areas of the apartment. The Crown did not proceed with the charges relating to the ketamine and marihuana. The trial before me was with respect to only one count in the indictment – that is, the possession of methamphetamine for the purpose of trafficking.

[3] The weight of the methamphetamine, according to the ASF, exceeded 700 grams, and was described as follows:

• 700.65 grams of methamphetamine (approximately 2340 tablets at .3 grams of methamphetamine per tablet) [ASF at p.4]

[4] According to the ASF, the potential range in value of the methamphetamine was $7,020 to $46,800. This range was based on the estimated number of tablets in the bag, rather than an exact count of the tablets, and was calculated as follows:

Value of Methamphetamine ($7,020 – $46,800)

The value of the methamphetamine ranges from $7,020 to $46,800, depending on how it is distributed: Individual tablets are sold from $10-$20 per tablet – on that basis, 2340 tablets have a value of between $23,400 to $46,800. If the tablets are sold in wholesale 100 tablet lots, the price range is from $3-$6 per tablet – on that basis, 2340 tablets have a value of between $7,020 to $14,040. [ASF at p.4]

[5] Mr. Hung testified and denied having any knowledge of the methamphetamine tablets or ketamine. He did acknowledge, however, that he owned the marihuana, which he stated that he had purchased that day from Kenny Tang (“Tang”) and which was for his own personal use.

[6] Mr. Hung testified that he lent Tang a key to his apartment on June 21, 2015, which was 18 days prior to his arrest, so that Tang could use his washing machine to do his laundry. Tang never returned the key. The position of the defence was that Tang used the key at some point to access Mr. Hung’s apartment in his absence and, unbeknownst to Mr. Hung, stashed the methamphetamine in the closet, and the ketamine in two different places in the kitchen.

[7] Since the Crown’s case depended on circumstantial evidence, the Crown was required to establish that an inference of guilt was the only reasonable inference available on the totality of the evidence. I found that the Crown had met its burden. I did not believe Mr. Hung’s evidence that he gave Tang a key to his residence so that Tang could come and do his laundry. Thus, I found that Tang did not have unregulated access to Mr. Hung’s apartment. In rejecting this part of Mr. Hung’s testimony, and finding that it did not raise a reasonable doubt, I considered his evidence as a whole and in the context of all of the evidence, which included the quantity and value of the methamphetamine.

[8] Sentencing submissions were to take place on May 30, 2018. However, during the course of those submissions, defence counsel challenged the precise quantity of methamphetamine in each tablet. An adjournment was granted to permit that analysis to take place.

[9] The analysis done post-conviction revealed that each tablet contained only .008 grams, as opposed to .3 grams, of methamphetamine. Thus, the total amount of methamphetamine in the tablets was only 15.54 grams, and not 700 grams, as stated in the ASF. The tablets also contained an unidentified amount of Trifluoromethylphenylpiperazine (“TFMPP”), which is a Schedule III CDSA controlled substance.

[10] An exact count of the tablets was also done post-conviction. The number of tablets turned out to be 1,943, or about 400 fewer than stated in the ASF.

[11] Detective John Margetson prepared three expert opinion reports in this case – two prior to the trial, and the third post-conviction and after the errors were discovered in the ASF. In his third report, dated June 18, 2018, he opined that the tablets would still sell for the same per unit price, and that the overall value of the 1,943 pills would therefore range from $5,829 to $38,860, which he calculated as follows:

Pricing and Quantity

Current Pricing: The value of the drug is dependent on several factors. Variants that dictate the price of the drug include risk factor, purity of drug, weights sold, seller/buyer relationship, supply/demand factors and location.

DRUG: METHAMPHETAMINE (ecstasy – 701.76 grams of tablets)

Methamphetamine Tablets Pricing Calculated:

Tablets @ $10 - $20 …………………………….1943 tablets = $19,430 - $38,860

100 tablet lot @ $3 - $6 per tablet ……………….1943 tablets – $5829 - $11,658

Or 5000 tablets (as marked on bag) $15,000 - $30,000

This amount of methamphetamine tablets is not consistent with personal use but it is consistent with mid to high level trafficking.

Note: It is recognized by both dealers and customers that “ecstasy” tablets contain other substances such as stimulants and binding agents. The quantity or weight of a controlled substance within the tablet is not a factor considered by the end consumer only the desired effect on the consumer. If the desired effect or experience with the consumed tablet is inferior then this will negatively affect the price of the ecstasy tablet. Pricing for ecstasy tablets is based on a tablet count not a controlled substance weight as this is the way they are purchased by the consumer.

The ecstasy tablet pricing stated in this report is based on 2015 prices in the Greater Toronto Area derived through confidential source information and police undercover operations where ecstasy was purchased or discussed.

[Expert Opinion Evidence Report, June 18, 2018, at pp. 1-2]

[12] The above italicized excerpt from Detective Margetson’s third report was not part of his two earlier reports, when the amount of methamphetamine in each tablet was unknown. He testified that he added this note because “it had become a major issue.” As the note states, and as Detective Margetson testified, if consumers are dissatisfied with the effect of the tablets, they will not buy from that dealer again, which would negatively affect the price of the tablets.

[13] Defence counsel has brought this application to re-open Mr. Hung’s trial and for the declaration of a mistrial based on the new evidence with respect to the number of tablets, the amount of methamphetamine within each tablet, and the value of the drug.

[14] In response to this application, Crown counsel called Detective Margetson as a witness.

Brief Summary of the Position of the Parties

[15] The position of the defence is that the new evidence shows that the tablets were worth far less than the amount stated in the ASF: there were 397 fewer tablets than as stated in the ASF; the total amount of methamphetamine was only 15.54 grams, as opposed to 700.65 grams; and the amount of methamphetamine in each tablet was only .008 grams, as opposed to .3 grams. In addition to the fact that the tablets were far less “pure” than stated in the ASF, it is now known, pursuant to Detective Margetson’s evidence, that other factors could have affected the value of the tablets, such as whether they had the desired effect on the end consumer. It is also now known that in 2015, buyers in the ecstasy market preferred gelatin capsules over tablets. There was little demand for tablets, which were viewed with suspicion by buyers in terms of their quality and content. The defence argues that this would have negatively affected their value.

[16] Defence counsel submits that the fact that the tablets were potentially worth far less than as stated in the ASF is significant because that high value was a factor in my assessment of the credibility of Mr. Hung. For example, in rejecting Mr. Hung’s denial of knowledge of the methamphetamine and finding that his evidence did not raise a reasonable doubt, I found that it was improbable that Tang would have risked leaving 700 grams of methamphetamine that was potentially worth over $46,000 in Mr. Hung’s apartment without telling him about it. Leaving Mr. Hung in the dark about the presence of the tablets could potentially lead to the loss of the drug if Mr. Hung accidentally discovered them. Given the value of the tablets, such a loss could have serious financial consequences for Tang, as well as cause concern for his safety if the tablets were owned by someone else higher up on the chain of distribution.

[17] Defence counsel also noted that in assessing Mr. Hung’s credibility, I relied, in part, on the judicially recognized “motive” associated with drug trafficking, which is a lucrative business.

[18] The position of the Crown is that the defence has overstated the effect of the new evidence on the verdict in the case. Mr. Visca submits that at its highest, the evidence merely highlights that the tablets containing methamphetamine were designed and effectively being marketed as an alternative to “ecstasy” (which generally contains MDMA), as opposed to straight methamphetamine tablets. The Crown relies on Detective Margetson’s evidence that the street value of each tablet seized is no different than the value originally outlined in the ASF and relied upon by the court. While there are fewer tablets than originally estimated, it is only this feature that lowers the overall value of the bag of tablets found in Mr. Hung’s apartment. That lower value – that is, a range from $5,829 to $38,860, as opposed to the range of $7,020 to $46,800 – does not constitute a material change that impacts the verdict in any way. Mr. Visca referred to 11 findings that I made in determining that the Crown had established its case beyond a reasonable doubt. He submits that none of these findings are undermined by the proposed new evidence.

[19] Before reviewing the testimony of Detective Margetson, I have set out below a brief summary of how the errors in the ASF regarding the number of tablets, and the quantity and value of the methamphetamine came to be made.

How the errors in the ASF came to be made

[20] The Crown’s factum, at paras. 4-9, sets out how the errors regarding the number of tablets and the quantity and value of the methamphetamine found their way into the ASF. The Crown takes responsibility for the errors. At para. 4, Mr. Visca and Ms. DeFilippis noted that the police never mischaracterized the quantity of methamphetamine or sought to mislead anyone. The errors in the ASF were caused by the Crown’s misinterpretation of the investigative reports. Defence counsel accepts that the Crown’s errors were honestly made.

[21] Following the search of Mr. Hung’s residence, the police prepared a report that outlined the items seized. That report was disclosed to the defence at an early stage of the proceedings. The tablets in the bag were weighed but not counted. The weight was recorded as 700.65 grams, in addition to a sample taken for the purpose of forensic analysis, which weighed 1.11 grams. The ASF mistakenly stated that the amount of methamphetamine seized was 700.65 grams, when that weight simply represented the total weight of the tablets in the bag, minus the weight of the sample. This mistake may have stemmed from the fact that Detective Margetson’s first report described the drug as follows: “DRUG: MDMA (ecstasy – 700.65 grams).” There was no specific reference in this heading to the fact that the weight was the total weight of the tablets as opposed to the weight of the controlled substance.

[22] Detective Margetson prepared his first report regarding each of the drugs seized from Mr. Hung’s apartment prior to the drugs being analyzed. Initially, the investigating officers incorrectly assumed that the tablets were ecstasy pills, likely containing MDMA. Thus, in his initial report, Detective Margetson made the same assumption. For the purposes of his opinion, he also assumed that 700.65 grams of tablets yielded approximately 700 tablets. No exact count of the tablets had as yet been conducted.

[23] The drugs were analyzed after Detective Margetson completed his first report. The first certificate of analysis, dated September 3, 2015, indicates that the tablets contained methamphetamine and TFMPP.

[24] Mr. Hung was originally charged in relation to all the drugs seized from his residence. As a result of ongoing discussions between the Crown and defence counsel, the Crown agreed, at different times and for different reasons, not to proceed against Mr. Hung in relation to the marihuana and ketamine counts in the indictment. In anticipation of a jury trial, the Crown sought a revised report that did not refer to the ketamine. For the purposes of that opinion, Detective Margetson, in his second report, dated January 22, 2018, estimated that each of the tablets weighed approximately .3 grams, for an approximate yield of 2340 tablets. In his submissions, Mr. Visca noted that Detective Margetson never asserted that each tablet contained .3 grams of methamphetamine. The reference in the ASF to .3 grams of methamphetamine per tablet was developed in error by the Crown during the preparation of the ASF. Again, defence counsel accepts that this was an honest mistake made by the Crown.

[25] As a result of ongoing pre-trial discussions between the Crown and defence counsel, and with the goal of streamlining the trial proceedings, the parties negotiated a comprehensive ASF to deal with non-contentious issues. The Crown drafted the portions that relate to the errors in issue. Defence counsel agreed to the facts as outlined by the Crown, and the final version was filed as an exhibit. Crown counsel noted defence counsel’s agreement to the facts set out in the ASF not as a criticism of the defence but to simply highlight the fact of the agreement, and to explain how the errors made their way, unchallenged, into the final version of the ASF.

Testimony of Detective John Margetson

[26] Detective Margetson was qualified to give expert opinion evidence with respect to the sale and distribution of ecstasy, including MDMA and methamphetamine, and including the pricing, packaging, distribution methods and methods of use. His curriculum vitae has been filed as an exhibit.

[27] Detective Margetson explained that “ecstasy” is a nickname that encompasses MDMA and similar substances such as methamphetamine, MDEA, BZP, and TFMPP. He has been involved in approximately 50 investigations of raves or electronic dance parties where ecstasy-type drugs are commonly sold, as well as ketamine, GHB, cocaine and crystal methamphetamine, depending on the crowd. Over the years, he has cultivated numerous confidential sources – that is, people involved in the drug subculture, such as users and dealers.

[28] Detective Margetson testified that individuals who buy ecstasy in tablet form may believe that the tablets contain MDMA, but no one, other than the producers, may know for sure what they contain. During the years leading up to 2015, users had become increasingly suspicious of tablets because of the inconsistency in the strength and quality of the product. Thus, the market for tablets in 2015 had “trailed off,” and had been trailing off for some years prior to 2015.

[29] In 2015, the gelatin capsule was the most common way to sell ecstasy, and tablets were “seemingly harder to find” but had not been completely phased out. Users did not want tablets. They preferred capsules because they could physically see what was in them, and therefore felt more confident that it was “Molly” – that is, that it actually contained MDMA. The market moved away from tablets, and became the “Molly” market, which sold capsules or just powder MDMA. Users believed that if it was in capsule form, it was pure MDMA. Analogues, however, have also crept into that market.

[30] Detective Margetson testified that if a buyer is in the ecstasy market, the preferred purchase is MDMA, as opposed to methamphetamine. Thus, if a buyer asked a dealer if a tablet contained MDMA, and the dealer told them “no,” that it contained methamphetamine, that buyer would most likely turn away from the deal. Similarly, a buyer who purchased and consumed a tablet containing no MDMA but some other drug, such as methamphetamine, which resulted in their not having the “good experience” that they were expecting, would be unlikely to buy from that dealer again. As stated in his final report, “If the desired effect or experience with the consumed tablet is inferior, then this will negatively affect the price of the ecstasy tablet.”

[31] Tablets contain fillers or inert substances, and may also contain “other things.” The weight of the tablet is therefore not necessarily related to the strength of the controlled substance that it contains. As Detective Margetson explained:

Okay, so in that sort of scenario, [a tablet’s] full of fillers, maybe inert. Maybe some other things thrown in there like caffeine, ephedrine, maybe some sort of legal stimulant. It cuts down the price. There may be other ones that are opposite to it like ketamine, which is an anesthetic. They are really all over the map, but I mean, the weight of the tablet in and of itself is not directly related to the strength of the tablet itself, like of the therapeutic value of the controlled substance. The two don’t match up because it’s full of fillers and colours and stamps and they are just making a tablet out of it. Whereas a capsule, the general theory should be is what you get in the capsule should be a purer drug because you are filling the capsule with a powder. Your powder is MDMA or MDA or some sort of analogue.

[32] When asked about the content that he would normally expect to find in a tablet sold as ecstasy, Detective Margetson stated that he could not say, as quantitative and qualitative analyses of tablets are quite rare. Unlike the cocaine market, where a 95 percent-pure kilogram of the drug could be doubled in weight by adding a cutting agent, a “tablet is sold as a tablet”: it may be an inferior product or a good product, but the price will be the same.

[33] As earlier stated, Detective Margetson prepared his first report prior to the completion of the first certificate of analysis. He assumed at that time that the tablets contained MDMA. When he completed his second report, which was in January 2018 and prior to the trial, he was aware that the tablets contained methamphetamine, as opposed to MDMA. When he completed his third report, which was in June 2018, and after Mr. Hung had been found guilty, Detective Margetson was aware that each tablet contained only .008 grams of methamphetamine and an unknown quantity of TFMPP. However, in all three reports, he calculated the value of the tablets on the same basis – that is, $10 to $20 per tablet if sold individually, and $3 to $6 if sold in 100-tablet lots. He explained his approach to pricing the tablets as follows:

… [W]hen we talk about tablets, I’m pricing the tablet just in and of itself. The purity when you sell the tablet might be an issue to the end user, say complaining to the dealer. But the purity, the tablet on the face of it is a valid tablet. So, the buyer is not really going to know the purity until they actually take it. So that wouldn’t affect my pricing, the purity. Now, it could affect the pricing down the road when people are complaining and nobody wants them. But the pricing there is just because I’m pricing the actual pill itself. I’m not considering purity. [Emphasis added.]

[34] Later on in his examination-in-chief, Detective Margetson expanded on his caveat with respect to pricing:

Q. … Again, I don’t want to beat this horse again. I think we are clear on why in your opinion the pricing is the same?

A. Yes. But just to be, you know the caveat always is that a pricing could be affected if the market knows that it is an inferior product. Like that could affect the pricing, if it was. I’m not saying it is or it isn’t. I’m just saying, you know, that that could affect …

Q. If the market knew.

A. Yeah.

Q. It was an inferior product.

A. Yes. But the market value of those tablets on the face of that is, I stand by that pricing.

[35] In cross-examination, Detective Margetson testified that if word got out that a dealer was selling an inferior product, that dealer “might try to dump it for a lesser price.” The cross-examination continued:

Q. This all comes under the heading of your comment, I just want to get the words right, “suspected by the people who use them?”

A. Yes

Q. All right. So what you’re saying is, in 2015, you may have had to dump your tablets?

A. If it was an inferior product, in any year, 2015, 2014, whatever year. That’s the way it goes. If you have an inferior product, you’re not going to get the customers.

Q. Sure.

A. And you may have to change your price to either get rid of it or just eat it yourself. Like this …

Q. You just can’t sell it anymore?

A. Yeah, yes.

Q. It has no value?

A. That’s correct.

Q. Right. And again, one of the ways that it would have no value is that people had come to suspect the tablets, when they could get capsules and see what they were getting. That’s what you have told us?

A. No, I didn’t say that. No.

Q. I could have sworn …

A. I mean …

Q. … that you said that people were preferring the capsules which they could look in and see what they were getting, to the tablets where they couldn’t see what they were getting?

A. Yes. So maybe I’m just splitting hairs here, but what I’m saying is, that may be true what you’re saying. If the tablet is inferior, let’s go to the capsule.

Q. No, no.

THE COURT: Let him finish.

MR. RUSONIK: Sorry.

A. However, if I don’t, I didn’t see any direct effect in regards to the pricing. The pricing was still there regardless if it was capsule or tablet. But everybody was going to the capsule because it was preferable because you could see what was in it.

Q. Sure.

A. Now, I don’t know if everyone knew that. But that was sort of the trend, the general trend. But the price still would have been the same. Some people might have said, some people in the market might have said, you know what, I’m not doing tablets anymore. I’m going to capsules.

Q. Right

A. Because they’re available.

Q. Why would I buy something that I don’t know what’s in it and maybe getting an inferior product when I can see some – you keep shaking your head in the affirmative. I want to note that.

A. Yes, yes.

Q. When I can buy a capsule that I can see what’s in it and know what I’m getting?

A. Yes. But I’m saying that is true. But on the other hand, I’m saying it wasn’t like the tablet market was non-existent.

Q, Okay. Well, you can always sell something if you lower the price, right? You can always clear your stock if you’re prepared to lower your price enough, right?

A. That’s one possibility. Or you sell it to regain market price and if people are accepting that, then they accept it.

Q. Yeah. Or again, your other scenario, you just ditch it. You couldn’t care less. It’s not worth the risk of carrying around, for example, and have the police catch you with it because you’d still go to jail for it but it’s not worth carrying around because it’s too hard to sell for anything that’s worth anything?

A. That’s a possibility as well.

[36] In each of his reports, and preceding his calculation of the value of the tablets, Detective Margetson, under the heading, “Pricing and Quantity,” included the purity of the drug and the law of supply and demand as factors affecting their value:

Current pricing: The value of the drug is dependent on several factors. Variants that dictate the price of the drug include risk factor, purity of drug, weights sold, seller/buyer relationship, supply/demand factors and location.

During his testimony, he reaffirmed that the above factors are relevant in determining the value of the tablets.

[37] Detective Margetson testified that he arrived at the price of $10.00 to $20.00 per tablet by considering what undercover officers were paying for the drug; by speaking to users or dealers; and “literature” from the drug subculture. He testified that $10.00 would be the most common price per pill or capsule. $20.00 might be paid for a tablet sold in a dance club setting, where there is a “house dealer” who is the sole source inside the club, and there is no relationship between that individual and the buyer.

[38] Detective Margetson testified that buying in bulk lowers the price; hence the price of $3 to $6 per tablet if they were sold in a 100-tablet lot. The price would be even lower if they were sold in 1,000-tablet lots.

[39] Detective Margetson prepared his second report after learning that the tablets contained methamphetamine as opposed to MDMA. Based on his experience, the fact that the methamphetamine was in tablet form, and his knowledge of how the market works, he was of the view that the tablets were being sold as ecstasy or MDMA. He had not seen and was not aware of tablets containing methamphetamine being marketed to methamphetamine users. Nor was he aware of methamphetamine users asking to buy methamphetamine in tablet form. He therefore assumed that the tablets were being marketed as ecstasy. He had no specific knowledge about this case that would lead him to conclude that they were, in fact, being marketed as ecstasy. All he knew was that “they were tablets” and that they contained methamphetamine.

[40] Detective Margetson testified that his opinion in his second report with respect to the pricing of the tablets would not have changed had he known at the time that each tablet contained only .008 grams of methamphetamine. He based his opinion on pricing on his belief that the tablets were being marketed as ecstasy. Even if the analysis showed that the tablets contained twice that amount of methamphetamine, or .016 grams, the price, in his view, would still be the same – at least on the face of it. However, he reiterated that there are other factors that could affect the price:

Like I said, there’s other factors we may know after the fact. Like somebody might have said it was a good product, it was a bad product. I can’t say if it was a good product or a bad product with that amount of mg. I am just surmising. But I would stand by that figure as it would be sold on the face of it.

[41] Detective Margetson initially testified that he was aware at the time that he completed his second report in January 2018 that the tablets contained TFMPP, which reinforced his belief that they were being sold as ecstasy. However, he later testified that he did not become aware of the presence of TFMPP until he prepared his third report in June 2018.

[42] When completing his second report, Detective Margetson had still not been told how many tablets were in the bag, despite his request that an exact count be conducted. Using an estimated weight of .3 grams for each tablet, he calculated that the total number of tablets was 2,340. As it turned out, the tablets weighed slightly more than .3 grams. The exact number of tablets was determined after trial to be 1,943. Detective Margetson used the latter number in his third report in calculating the value of the tablets. He was also aware when he prepared his third report that there were only .008 grams of methamphetamine in each tablet, and an undisclosed quantity of TFMPP.

[43] Detective Margetson agreed that if a dealer had a stash of 5000 tablets that were “junk,” and sold half of them, word would likely have gotten out that his product was inferior. Buyers would realize that “this guy’s stuff is sketchy.” A dealer in that situation might just get rid of the tablets, try to sell them at a cheaper price – something less than the $4 to $6 price range – or try to sell them in a different venue where no one knew him.

[44] Detective Margetson was unable to say whether a tablet containing .008 grams of methamphetamine and an unknown quantity of TFMPP was a “good” or “bad” product. Although he could not say how much MDMA makes a “good” or “bad” tablet, he agreed that the consumer would likely know. The effect on the consumer would depend on a number of factors, including the consumer’s level of tolerance with respect to the drug, body weight, other substances consumed at the same time, and a possible placebo effect.

[45] Detective Margetson agreed that a tablet containing .3 grams (or 300 mg) of methamphetamine would have a “lot more kick” than a tablet containing .008 grams (or 8 mg) of methamphetamine, as it would be 37.5 times stronger. Logically, the former would be worth more to the consumer than the latter. Detective Margetson emphasized that the reference to the weight of .3 grams in his second report referred to his estimated weight of each tablet. In the ASF, this weight was mistakenly used to refer to the amount of methamphetamine in each tablet.

[46] When asked why a buyer in the ecstasy market would prefer tablets containing MDMA as opposed to methamphetamine, Detective Margetson explained that MDMA is not only an amphetamine or stimulant, but also a hallucinogen that enhances sights, sounds etc. People buying MDMA are looking for that “full effect,” where they can not only “go all night” but where “everything looks great, sounds great” and is “fantastic.” Methamphetamine, however, is strictly a stimulant. Detective Margetson noted that TFMPP would add a hallucinogenic effect, but he could not say to what degree methamphetamine plus TFMPP would mimic the effect of MDMA.

[47] Detective Margetson testified that there are a number of reasons why a producer might have substituted methamphetamine for MDMA in the tablets. They may have assumed that the methamphetamine was, in fact, MDMA but came in powder form. They might have run out of MDMA, and decided to substitute it with methamphetamine plus TFMPP. Detective Margetson noted that methamphetamine is cheaper and easier to make than MDMA. He described the production of MDMA as a very arduous process.

[48] In re-examination, Detective Margetson was asked to consider a scenario in which the dealer was aware that the tablets he was selling contained methamphetamine as opposed to MDMA, and that as a result, he paid less for them because methamphetamine is cheaper and easier to produce than MDMA. He agreed that it would not be beyond an unscrupulous dealer to sell the tablets at the usual or market price, as the “name of the game” in dealing drugs is to make as much money as possible.

[49] In re-cross-examination, Detective Margetson was asked to consider a scenario in which a dealer bought 5,000 tablets of what he thought was ecstasy MDMA, but later found out that he had been taken. After selling a number of tablets, he realized that they were “junk” and that he could not keep selling them without damaging his reputation. He therefore stopped selling them because there was simply too much risk for too little reward. Detective Margetson agreed that such a scenario is a “distinct possibility.”

[50] Detective Margetson testified that his valuations in this case were not based on replacement cost but rather on the selling and resale price. They were also not based on quality, but rather how the tablets appeared or presented “on their face.” Detective Margetson agreed that a bag of tablets containing a total of 15 grams of methamphetamine would be dramatically cheaper to replace than a bag of tablets containing a total of 700 grams of methamphetamine. The production of 700 grams of methamphetamine would require a laboratory. However, 15 grams of methamphetamine could be made at home in a coke bottle and using Sudafed.

Analysis

(a) Governing Principles with respect to Reopening the Defence Case following a Finding of Guilt

[51] The Ontario Court of Appeal has made it clear that the power to re-open the defence case following a finding of guilt should only be exercised in exceptional circumstances: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73.

[52] In R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-494, the Court of Appeal set out the test for exercising this discretion as follows:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.). However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, (S.C.C.) at page 205 (see: R. v. Mysko (1980), 2 Sask. R. 342 (C.A.)) That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases … ;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

[53] In R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at paras. 49-52, the Court of Appeal elaborated on the procedure to be followed when an application to re-open a case is made after a finding of guilt. Watt J.A., speaking for the Court, stated:

The authorities, like Kowall, which involve the proffer of further evidence after a finding of guilt has been recorded, contemplate two remedies:

(i) re-opening of the defence case; and

(ii) declaration of a mistrial

As a general rule, permission to re-open would be followed by setting aside the prior finding(s) of guilt, reception of the further evidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy of the prosecution’s proof in light of the new evidence. In some instances, of course, a decision to receive the further evidence might require declaration of a mistrial, or a similar conclusion may be warranted absent a decision on admissibility, for example where the proposed evidence was not disclosed in a timely way by the prosecutor.

Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening. But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then be required to determine whether to continue proceedings to verdict, or terminate them prior to final decision. Kowall and subsequent cases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is to decide which is the more appropriate remedy.

Trial judges are more likely to encounter mistrial applications before, rather than after verdict or judgment, and when sitting with a jury, rather than in judge alone trials…

While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.) at 174; R. v. Paterson (1998), 122 C.C.C. (3d) 254 (B.C.C.A.) at paras. 93-98. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment.

[54] In R. v. Drysdale, 2011 ONSC 5451, at para. 15, Trotter J., as he then was, noted that although the discretion to re-open must be exercised cautiously, it is important to bear in mind the words of the Alberta Court of Appeal in R. v. I.(A.) (2010), 2010 ABCA 375, 265 C.C.C. (3d) 22 at p. 8:

When a trial judge is sitting without a jury, exercise of his discretion to re-open the trial must emphasize the fairness of that trial. Consequently, to the extent that the Palmer criteria are of assistance in determining whether to re-open, the criteria of credibility and materiality (not in dispute before the trial judge or this Court) should be viewed from a fairness perspective.

(b) The Principles Applied to this Case

[55] The application to re-open in the present case is clearly not an attempt to reverse a tactical decision made at trial. In terms of the Palmer test, the parties agree that it is only the fourth criteria that is in issue – that is, whether the fresh evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[56] In my Reasons for Judgment, I noted that Mr. Hung was not an inherently unreliable or incredible witness. There was nothing in his demeanour while giving his evidence that would indicate that he was being untruthful. He has no prior criminal record and, other than the charge before the court, he has never been charged with a criminal offence.

[57] In assessing and ultimately rejecting Mr. Hung’s testimony that he had given Tang a key to his apartment, thereby allowing Tang to have unregulated access to his apartment, and his denial that he had any knowledge of the methamphetamine, I considered his evidence in the context of all of the evidence. “All of the evidence” included the value and quantity of the methamphetamine tablets as stated in the ASF, and which are now known to be inaccurate.

[58] The passages in my Reasons for Judgment, which are set out below, demonstrate the interplay between the value of the methamphetamine, as stated in the ASF, and my assessment of Mr. Hung’s evidence, including his denial of any knowledge of the drug.

[59] The Crown, at trial, relied on the ASF-stated value in submitting that one of the circumstances to be considered in this circumstantial case was the judicially recognized “motive” associated with the lucrative business of commercial drug trafficking. At para. 83, I set out the Crown’s position as follows:

Crown counsel relies on the judicially recognized “motive” associated with drug trafficking. Commercial drug trafficking is a financially lucrative business that is capable of tempting some people to become involved even though they are not in clear financial need.

[60] Given the estimated value of the methamphetamine at the time of trial, I agreed with the Crown that the judicially recognized motive associated with drug trafficking was a factor for consideration. At para. 112, of my Reasons for Judgment, I stated:

The value of the methamphetamine and the significant amount of money that could be made from trafficking in it is a relevant factor for consideration. There is no evidence that Mr. Hung was in financial need, although he had apparently lost a fair amount of money – $10,000 to $15,000 – between May and July of 2015 while playing table games at the casinos. The courts have recognized that the lucrative business of drug trafficking is capable of tempting some individuals to become involved, even though they are not financially needy. This judicially recognized “motive” associated with drug trafficking was considered by Hill J. in Ukwuaba, at para. 114. As Crown counsel put it, it is not unusual for people to want more money, even if they are financially comfortable. Drug trafficking allows for that.

[61] I referred again to the high value of the methamphetamine in the final bullet point in para. 155 of my Reasons for Judgment:

• Finally, courts have recognized that the lucrative business of drug trafficking is capable of tempting some individuals to become involved, even though they are not financially needy. This judicially recognized “motive” associated with drug trafficking is a factor in this case, given that the methamphetamine, in the form of 2,340 tablets, had an estimated value ranging up to almost $50,000. It was a very valuable commodity.

[Underlining added.]

[62] The substantial value of the methamphetamine was also relied on by the Crown at trial in support of its position that Tang was unlikely to have left such a valuable commodity in Mr. Hung’s apartment without telling him about it. The Crown’s position in this regard was set out at paras. 81 and 88 of my Reasons for Judgment:

The Crown submits that given the value of the methamphetamine – anywhere from $7,020 to $46,800 – it is unlikely that Tang or any other drug dealer would risk leaving it in the care or control of someone who did not know it was there as that could lead to the potential loss of the drugs. Such a loss could also lead to safety and harm-related issues for the drug dealer, who would have some explaining to do if the drugs were owned by someone else.

According to Mr. Hung, he gave Tang the key to his apartment on June 21, 2015 and returned home three or four days later. The Crown submits that it is fanciful to suggest that Tang would have risked leaving 700 grams of methamphetamine in Mr. Hung’s apartment without Mr. Hung’s knowledge for the 2.5 weeks leading up to July 8. Crown counsel also observed that Mr. Hung also had no meaningful ability to say when his one-day trip to Casino Rama took place – whether it was July 6, 5, or 4 or 3 for that matter. Obviously, the longer the time period that the methamphetamine was in Mr. Hung’s apartment, the more unrealistic it is that Tang left it there unbeknownst to Mr. Hung.

[63] At para. 118, and again at para. 151 of my Reasons for Judgment, I agreed with the Crown that given the value of the methamphetamine, as set out in the ASF, it was unlikely that Tang would have risked leaving it in Mr. Hung’s apartment without informing him about it:

The fact that the bag containing the methamphetamine was left in the plain view of anyone who opened the closet is a circumstance suggesting that Mr. Hung stored it there himself, or that Tang put it there with the knowledge of Mr. Hung. Given the value of the drug, it seems unlikely that Tang would have risked leaving it in Mr. Hung’s apartment without telling him about it, as that could lead to the loss of the drug. Such a loss could have very serious consequences for Tang, including safety-related issues.

I would also observe that even if Mr. Hung had given the key to Tang on June 21, it is completely illogical or fanciful to suggest that Tang would have left 700 grams of methamphetamine worth over $46,000, in Mr. Hung’s apartment without his knowledge for the two-and-a-half weeks leading up to July 8, 2015. The longer the period of time that the methamphetamine was in Mr. Hung’s apartment, the more unrealistic it is that Tang left it there unbeknownst to Mr. Hung.

[64] I also found that if Tang was responsible for bringing the tablets into Mr. Hung’s apartment without Mr. Hung’s knowledge, he would have done a better job of hiding them, given their value. He would likely not have placed them in the front hall closet, but would have put them in a place where Mr. Hung was unlikely to find them. At paras. 115 and 153 of my reasons for judgment, I stated:

Based on the above scenario, and given the quantity and value of the methamphetamine, which was worth up to $46,800, it is reasonable to infer that Tang would have hidden the drugs in Mr. Hung’s apartment in a place where he thought Mr. Hung was unlikely to find them. However, the evidence indicates otherwise.

As indicated earlier, even assuming that Tang had a key, it is improbable that he would have risked leaving the methamphetamine, which was worth a lot of money, in Mr. Hung’s apartment without telling him about it. That could potentially lead to the loss of the drug, which could have serious ramifications for Tang. Furthermore, as observed earlier, if Tang had, unbeknownst to Mr. Hung, left the methamphetamine in Mr. Hung’s apartment, he would no doubt have hidden it in such a way that Mr. Hung was unlikely to find it. He would not have simply placed it on a shelf in a closet used to store everyday household items and which Mr. Hung was more than likely to access.

[65] I would note that if the drugs were, in fact, not worth much or were of much less value than stated in the ASF, Tang may well not have taken the same care that he would otherwise have taken in secreting them. He would have less fear about the tablets being discovered if their loss did not represent a significant financial loss. He may also have had less fear about the tablets being discovered if they could be replaced relatively cheaply; for example, if they contained 15 grams as opposed to 700 grams of methamphetamine, which proved to be the case.

[66] Finally, in my Reasons for Judgment, I gave some weight, albeit a limited amount, to the Crown’s argument that Tang would not have exposed his friend, Mr. Hung, to the risk of criminal prosecution for possession of almost $50,000 worth of methamphetamine without telling him about the presence of the drug. At para. 125, I stated:

Mr. Hung testified that he and Tang were good friends. They had known each other for one-and-a-half years. They worked out at the gym together three to four times a week. They went out for meals and played poker together. Tang regularly drove Mr. Hung to their various destinations because Mr. Hung’s driver’s licence was under suspension. The Crown submits that given their friendship, it is unlikely that Tang would have exposed Mr. Hung to a potential criminal prosecution for a very serious offence by storing almost $50,000 worth of drugs in his apartment without advising him of it. Given the close relationship between Mr. Hung and Tang, some weight may be accorded to the “friendship” factor. However, I would not place significant weight on it as it assumes that Tang, a mid to high-level drug dealer, was too moral or honourable to place a friend in such jeopardy.

[67] There is now a great deal more information before the court with respect to the value of the tablets than was presented at trial.

[68] It is now known that there were only 1,943 as opposed to 2,340 tablets in the bag. Although Detective Margetson maintained that the price per tablet is the same as his earlier estimate, that is, $10 to $20, he testified that the most common price would have been $10. Thus, based on Detective Margetson’s estimate, and disregarding for the moment other factors that arguably could have affected the price, the value of the tablets, if sold individually, would probably have been closer to $19,430 ($10 x 1,943), or in the lower part of the range, as opposed to $38,860 ($20 x 1943).

[69] It is now known that Detective Margetson reached his conclusion about the value of the tablets based on the assumption that they were being marketed as ecstasy. He based this assumption on the fact that he had not heard of methamphetamine users buying methamphetamine in tablet form, and the fact that the tablets contained TFMPP. However, the quantity of TFMPP remains unknown. There is therefore no way of knowing whether its presence should play any role in characterizing the tablets as ecstasy.

[70] It is now known that buyers in the ecstasy market prefer MDMA, as opposed to methamphetamine, and would not knowingly purchase an ecstasy tablet that contained methamphetamine. As the tablets in issue contained methamphetamine, there was at least the potential that consumers would have complained about their quality. Of the 5,000 tablets that were purportedly in the bag marked “5000,” over 3,000 of them had been sold, which is a sufficient quantity such that a dealer could potentially have received negative feedback from buyers. In addition, it is now known that each tablet contained only 8 milligrams, as opposed to 300 milligrams, of methamphetamine. Although Detective Margetson was not in a position to say what quantity of methamphetamine would make a “good” or “bad” tablet, he acknowledged that a tablet containing 300 milligrams would have a “lot more kick” than one that contained only 8 milligrams.

[71] In accordance with Detective Margetson’s testimony and his third report, it is now known that “if the desired effect or experience with the consumed tablet is inferior, then this will negatively affect the price of the ecstasy tablet.” Detective Margetson testified that if word got out that a dealer was selling “junk,” that dealer might try to sell the tablets at a cheaper price – something less than in the $3 to $6 price range. In some instances, the quality of the tablets could be so poor in terms of providing users with the desired effect that the dealer would simply “ditch” them, as they could not be sold and had no value.

[72] It is now known that in 2015, buyers in the ecstasy market preferred gelatin capsules over tablets, and that capsules were “heavier in the market” or the most common way to sell ecstasy. Users did not want tablets because they were suspicious about their content. They were more confident that they were getting MDMA or a “purer” product when they purchased capsules, as opposed to tablets, which normally contained any number of fillers.

[73] Despite the fact that the market had largely moved away from tablets, and despite the suspicion with which users regarded tablets, Detective Margetson maintained that the price for tablets and capsules in 2015 was the same. In cross-examination, however, he acknowledged that it would not make any sense for a user to buy a tablet, whose contents were unknown, when, for the same price, they could purchase a capsule that allowed them to “see” what was in it. Although Detective Margetson testified that there was still a market for tablets in 2015, I gather from his evidence that it was far from robust. Buyers did not want tablets.

[74] I note that Detective Margetson’s evidence that tablets sold for the same price as capsules despite the lack of demand for tablets is somewhat at odds with his statement in all of his reports, which he adopted during his testimony, that the value of the tablets was dependent on, among other things, supply/demand factors.

[75] It is now known that the total amount of methamphetamine contained in the tablets was 15.54 grams as opposed to over 700 grams. The cost of replacing 15.54 grams, which could easily be produced in someone’s kitchen, would be dramatically less than the cost of replacing 700 grams, which would require a laboratory.

[76] Crown counsel submitted that the replacement cost is irrelevant as Detective Margetson’s opinion regarding the value of the drug has consistently been based on the value of each tablet. The Crown argued that it is artificial to suggest that there is a striking reduction in value because of what it would cost to replace 700 grams versus 15 grams of methamphetamine. It is the tablets that would have to be replaced.

[77] In my view, although the replacement cost might not be a factor with respect to the price that a dealer chooses to charge for each tablet, it could well be a relevant consideration in terms of the financial or other consequences that the dealer might expect to suffer should the tablets be lost. As noted earlier, in my Reasons for Judgment, at paras. 115 and 153, I found that if Tang was responsible for bringing the tablets into Mr. Hung’s apartment, and if he did so without Mr. Hung’s knowledge, he would have done a better job of hiding them, given the quantity and value of the drug, which was stated to be 700 grams and estimated to be worth up to $46,800. He would not have simply put them on a shelf in the front hall utility closet. In other words, the high value of the tablets played a role in my drawing the inference that if Tang put the tablets there, he did so with the knowledge of Mr. Hung. That inference could potentially be weakened in light of the fresh evidence. It is now known that the tablets did not contain 700 grams of methamphetamine, but only 1/37 of that amount – that is, 15 grams. It is also known that 15 grams of methamphetamine could be easily and cheaply replaced. Thus, if Mr. Hung discovered the tablets and the tablets were lost or destroyed, the loss would not result in a significant financial loss to Tang. As Mr. Rusonik put it, “If [the methamphetamine] could be easily replaced to get the same sale value again, it’s not as big a loss.” In these circumstances, Tang may have been less concerned about Mr. Hung finding the tablets, and taken less care in choosing a place to hide them.

Whether the fresh evidence regarding the value of the tablets could reasonably be expected to have affected the result

[78] The value of the tablets was not in issue at trial. The parties accepted as a proven fact that the value was in the range of $7,020 to $46,800. This range is now known to be inaccurate as it was too high.

[79] Crown counsel urged me to accept Detective Margetson’s evidence that the value of the tablets ranged from $5,828 to $38,860, which is in the same ballpark, so to speak, as the range stated in the ASF. Thus, the “new” range could not reasonably be expected to have affected the verdict.

[80] The “new” range is based on the fact that there were fewer tablets in the bag than were earlier estimated. In calculating this range, Detective Margetson used the same price per tablet and price per 100-lot of tablets that he had used in calculating the range stated in the ASF. I note that although he indicated in each of his reports that purity is a factor affecting price, he did not take purity into account in calculating the range: he simply took the market value of the tablets “on their face.”

[81] Detective Margetson qualified the values in his final report in an important way. He made it clear in both his report and his testimony that the price of the tablets would be negatively affected “down the road” if the desired effect or experience with the consumed tablet was found to be inferior by the buyer. He testified that the negative experience of buyers could potentially lead to the tablets being worthless, as a dealer would be unable to sell them at any price. A dealer might also opt not to sell the tablets so as not to risk losing business by gaining a reputation for selling an inferior product.

[82] Obviously, the effect on the consumer would be affected in large measure by the nature of the controlled substance in the tablets. Detective Margetson testified that buyers in the ecstasy market in 2015 preferred tablets containing MDMA, as opposed to methamphetamine, and would not knowingly purchase an ecstasy tablet that contained methamphetamine. As the tablets in this case contained methamphetamine, there is a reasonable possibility that consumers would have been unhappy with the effect of the tablets and complained to the dealer about them.

[83] In terms of purity, the amount of methamphetamine in each tablet is now known to be only .008 grams. Detective Margetson could not say whether that would constitute a “good” or “bad” pill, but it would definitely not have had as much “kick” as a tablet containing .3 grams.

[84] It appears that a significant number of tablets – about 3,000 of them – had already been sold when the bag, which had the number “5000” written on it, was seized by police. According to Detective Margetson, this would have been a sufficient quantity such that buyers would have figured out “if the stuff was sketchy” and “spread the word,” thereby negatively impacting the price of the tablets.

[85] The context in which the tablets were being sold is also a consideration. The market for ecstasy in 2015 was one in which buyers preferred capsules and had a negative mind-set towards tablets, which were viewed with suspicion.

[86] Taking into account all of these factors, I find that there is some evidence to support the suggestion that the value of the tablets was lower than the range provided by Detective Margetson in his third report, and “not in the same ballpark” as the incorrect ASF-range of value – or at least that is a reasonable alternate possibility based on all of the circumstances.

[87] I have already set out how the incorrect ASF-range of value played a role in my assessment of Mr. Hung’s credibility. As stated at para. 150 of my Reasons for Judgment, in rejecting Mr. Hung’s denial of knowledge of the tablets and his testimony that he had given Tang a key to his residence so that Tang could use his laundry facilities, I considered his evidence as a whole and in the context of all of the evidence, which included the value and quantity of the methamphetamine. To recap:

• I found that the judicially recognized “motive” associated with drug trafficking was a factor in this case, “given that the methamphetamine, in the form of 2340 tablets, had an estimated value ranging up to almost $50,000”: Reasons for Judgment, at para. 155.
• I found that given the substantial value of the methamphetamine, as stated in the ASF, it was “completely illogical or fanciful to suggest that Tang would have left 700 grams of methamphetamine worth over $46,000 in Mr. Hung’s apartment without his knowledge …”: Reasons for Judgment, at para. 151.
• I found that if Tang was responsible for bringing the tablets into Mr. Hung’s apartment, without his knowledge, he would have done a better job of hiding them, given the fact that they were potentially worth up to $46,800: Reasons for Judgment, at paras. 15 and 153.
• I also gave some weight, albeit limited, to the fact that Tang, as Mr. Hung’s good friend, would not have exposed him to the risk of a criminal prosecution for possession of “almost $50,000 worth of methamphetamine without telling him about the presence of the drug”: Reasons for Judgment, at para. 125

[88] In addition, as explained at paras. 75-77 in these reasons, the inference that Tang would not have put the tablets in the closet without telling Mr. Hung about them is now potentially weakened in light of the fresh evidence that the tablets contained only 15 grams of methamphetamine. Unlike 700 grams of methamphetamine, that amount could be easily and cheaply replaced by Tang in the event that the tablets were discovered and lost.

[89] Crown counsel observed that in my Reasons for Judgment, I took into account a number of factors that were completely unrelated to the value of the tablets in determining that Mr. Hung’s testimony regarding the key, and his denial of knowledge of the tablets was not credible. For example, the contraband drugs in Mr. Hung’s apartment (marihuana, methamphetamine, and ketamine) were stored in different locations, consistent with the practice of drug traffickers; Mr. Hung was regularly associating with Tang, who was a known trafficker of methamphetamine and marihuana; Mr. Hung was aware of Tang’s dealings in marihuana, and had actually purchased a pound of marihuana from Tang on the day of his arrest; and the quantity and variety of drugs in Tang’s apartment indicated that he had no need or inclination to store drugs outside his own residence.

[90] Crown counsel submits that it cannot be said that the proposed fresh evidence could have any meaningful impact on the adverse credibility findings made by the court, given the many factors upon which I relied in making those findings that were totally unrelated to the value of the drugs. While there were a number of such factors upon which I relied, I also bear in mind that this case consisted entirely of circumstantial evidence into which an incorrect high value of the drugs was interwoven. That high value played a role in my assessment of the credibility of Mr. Hung who, as earlier noted, was not an inherently unreliable or incredible witness. To use the words of Goldstein J. in R. v. Duro, 2018 ONSC 285, at para. 26, I cannot at this point unscramble this particular scrambled egg.

[91] I find that the fresh evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The standard for re-opening a case following a finding of guilt has been met. Accordingly, the finding of guilt is set aside and the evidence is admitted.

Whether a mistrial should be declared

[92] At this point, there are two potential remedies. I could make a fresh assessment of the evidence I have already heard, and come to a conclusion, based on that evidence, as to whether the Crown’s case has been proved beyond a reasonable doubt. Or I could declare a mistrial.

[93] I find that the only reasonable course of action in the circumstances is to declare a mistrial. The difficulty with continuing the trial is that I have made very strong adverse findings of credibility against Mr. Hung. If I were to re-evaluate his credibility in light of the fresh evidence and convict Mr. Hung, he and reasonably informed members of the public would wonder whether that conclusion was tainted by my prior adverse findings of credibility. Similar concerns would arise if I changed my views and acquitted. Whatever result I reached would be open to question. In these circumstances, the only appropriate remedy is to declare a mistrial.

Disposition

[94] For the reasons given, the application to re-open the case is allowed and a mistrial is declared.

Garton J. Released: January 8, 2019