COURT FILE NO.: CR/18/90000227/0000 DATE: 20190513 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - JEFFREY CHAN and ALFRED NHAN
Counsel: Mr. Oakey, for the Crown Mr. Foord, for Mr. Chan Mr. Engel, for Mr. Nhan
Heard: April 8, 9 and 10, 2019
Croll J.
REASONS FOR JUDGMENT
Introduction
[1] Jeffrey Chan and Alfred Nhan are charged as follows:
(1) that they, at the City of Montreal, in the Province of Quebec, on or about the 14th day of February in the year 2017, did unlawfully import into Canada a controlled substance to wit: Fentanyl (N-(1-phenethyl-4-piperidyl) propionanilide), contrary to s. 6(1) of the Controlled Drugs and Substances Act (the “CDSA”);
(2) that they, at the City of Toronto, in the Province of Ontario, on or about the 24th day of February in the year 2018, attempted to possess a controlled substance for the purpose of trafficking, to wit: Fentanyl (N-(1-phenethyl-4-piperidyl) propionanilide), contrary to s. 5(2) of the CDSA;
(3) that they, at the City of Toronto, in the Province of Ontario, on or about the 24th day of February in the year 2017, did unlawfully import into Canada a controlled substance to wit: Fentanyl (N-(1-phenethyl-4-piperidyl) propionanilide), contrary to s. 6(1) of the CDSA; and
(4) that they, at the City of Toronto, in the Province of Ontario, on or about the 24th day of February in the year 2017, did possess property or proceeds of property over $5,000.00, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Criminal Code and did thereby commit an offence contrary to s. 355(b) of the Criminal Code.
Factual Background
[2] The parties have entered into two Agreed Statements of Fact (“ASF”). They are commended for doing so. The first ASF was tendered on the first day of the trial and provides as follows:
(1) The accused, Jeffrey Chan (“Mr. Chan”), owns unit 3312 at 4968 Yonge Street, in the City of Toronto (“unit 3312”). Unit 3312 is a one-bedroom unit. Mr. Chan purchased unit 3312 in September 2016.
(2) In February 2017, Mr. Chan was residing in Waterloo, Ontario. Mr. Chan kept personal effects at unit 3312, including in a wardrobe in the living room. Mr. Chan was entitled to stay at unit 3312 and sleep in the living room.
(3) In February 2017, the accused, Alfred Nhan (“Mr. Nhan”), was residing at unit 3312 with his girlfriend, Mary Lemon (“Ms. Lemon”). Mr. Nhan and Ms. Lemon slept in the bedroom of unit 3312. Mr. Nhan and Ms. Lemon had paid rent to Mr. Chan to reside at unit 3312 since September 2016. Mr. Nhan and Ms. Lemon had been in an intimate relationship since the summer of 2016.
(4) Messrs. Nhan and Chan have known each other for several years. They were acquaintances in Ottawa, and then became friends in Toronto over the two-year period leading up to February 2017.
(5) In February 2017, Mr. Nhan was working for HLS Linen Services, a linen company, as co-manager of the depot.
(6) On Tuesday, February 14, 2017, a Canadian Border Services Agency (“CBSA”) officer in Montreal intercepted a Canada Post envelope addressed to “Jack Chan, 4968 Yonge St., Suite #3312, Toronto, Ontario, M2N 7G9, Canada,” from “Wim Mampaey, Lannoystraat 14, 1050 Elsene, Belgium” (the “envelope”).
(7) The envelope contained 188 Fentanyl patches.
(8) The CBSA turned over the envelope to Royal Canadian Mounted Police (“RCMP”) officers in Montreal, who sent the envelope to Toronto. An RCMP officer in Toronto received the envelope, substituted the 188 Fentanyl patches inside with an inert substance, and resealed the envelope (the “substituted envelope”).
(9) Corporal Anderson of the RCMP took possession of the substituted envelope and posed as a building security worker at the security desk of 4968 Yonge Street, Toronto, on Thursday, February 23, 2017.
(10) Corporal Anderson did not deliver the substituted envelope on February 23, 2017. The substituted envelope remained in the possession of the RCMP until February 24, 2017. On Friday, February 24, 2017, Corporal Anderson again posed as a building security worker at the security desk of 4968 Yonge Street and had possession of the substituted envelope.
(11) On February 24, 2017, Corporal Anderson provided the substituted envelope to Ms. Lemon at the security desk of 4968 Yonge Street.
(12) The continuity of the envelope/substituted envelope referred to above, from its interception on February 14, 2017 to it being provided to Ms. Lemon on February 24, 2017, is conceded by Messrs. Nhan and Chan.
(13) Later, on February 24, 2017, RCMP officers arrested Mr. Nhan, Ms. Lemon and Sara Halford (“Ms. Halford”) outside unit 3312.
(14) RCMP officers located a Harry Rosen bag during the arrests.
(15) The Harry Rosen bag contained no less than CDN $92,370 cash, sealed in plastic packaging. Two of Mr. Nhan’s fingerprints were present on this plastic packaging.
(16) Later, on February 24, 2017, Mr. Chan attended at unit 3312. Mr. Chan intended to sleep at unit 3312 that night after going out with friends.
(17) If it is proven beyond a reasonable doubt that Mr. Nhan and/or Mr. Chan attempted to possess Fentanyl, then Messrs. Nhan and Chan will concede that it is also proven that the attempted possession was for the purpose of trafficking.
(18) On February 24, 2017, a second envelope addressed to “Jack Chan, 4968 Yonge St., Suite #3312, Toronto, Ontario, M2N 7G9, Canada,” from “Wim Mampaey, Lannoystraat 14, 1050 Elsene, Belgium” arrived via Canada Post at 4968 Yonge Street, Toronto (the “second envelope”). The RCMP seized the second envelope.
(19) The second envelope contained 281 Fentanyl patches.
(20) The continuity of the second envelope is conceded by Messrs. Nhan and Chan.
(21) The Fentanyl patches contained in the envelope and the second envelope were unused 100 microgram transdermal patches. Each patch contained 16.5 milligrams of Fentanyl. 1,000 micrograms is equal to 1 milligram. The 100 microgram transdermal patch is designed to release 100 micrograms of Fentanyl per hour, over a period of 72 hours, after which time the patch is removed from the skin. Over the 72-hour treatment period, the patch will release 7.2 milligrams of Fentanyl in a controlled fashion. At this point, the patch still contains 9.3 milligrams of Fentanyl – this is an unavoidable feature of the transdermal system. Fentanyl may be ingested by absorption (through the skin), injection, or by smoking. As a non-medical substance, Fentanyl is being used as a replacement for heroin, or being mixed with heroin to heighten the effects of the “rush” desired by drug users. The toxicity of Fentanyl is 80 to 100 times greater than heroin or morphine, and is currently a major health concern in North America. Thousands of deaths have been attributed to Fentanyl overdose. There is a Fentanyl crisis in Canada. Transdermal patches contain high grade Fentanyl. They are not used in their transdermal capacity by Fentanyl users looking for an intense rush or high. Instead, there are generally three non-medical methods to use transdermal patches. The first is to open the patch and boil one or two patches in 20 ml of water for 15 minutes, allow it to cool, then inject 10 ml under the fingernail (or other high blood circulation absorption site) slowly, or intravenously. A second method is to remove the Fentanyl laden gel from the patch and smoke it. A third method involves the distribution of used transdermal patches. A used 100 microgram patch will contain over 9 mg of Fentanyl. Distributors will cut the patch up into small squares referred to as “chicklets”, and sell the chicklets which are consumed by smoking, or by absorption by way of chewing/placing under the tongue. Drug trafficking is generally a cash business. The street price in the Greater Toronto Area (“GTA”) in 2017 for one transdermal Fentanyl patch (100 microgram) was $100 to $300. The price of 188 transdermal Fentanyl patches (100 microgram) in the GTA in 2017 was $18,800 to $56,000. The price of 281 transdermal Fentanyl patches (100 microgram) in the GTA in 2017 was $28,100 to $84,300. The price of 469 transdermal Fentanyl patches (100 microgram) in the GTA in 2017 was $46,900 to $140,700.
(22) Ms. Halford had neither control nor knowledge of the Fentanyl patches and Canadian cash referred to above, and made no attempt to possess the Fentanyl patches referred to above.
[3] Six RCMP officers were called as witnesses on the first day of trial.
[4] As stated, Corporal Kevin Anderson was the undercover officer who posed as a trainee security officer at the Yonge Street building. Corporal Anderson had possession of the substituted envelope on February 23, 2017, and issued a ticket for unit 3312 that indicated there was a package to be picked up. That ticket was then taped to the mailbox of unit 3312. It was the evidence of Corporal Anderson that on February 23rd, Mr. Nhan and Ms. Lemon attended at the security desk with the ticket. However, the package was not delivered to them as Corporal Anderson asked for identification. According to Corporal Anderson, Mr. Nhan was visibly agitated when he was asked for identification, and in a raised and emphatic voice, advised that he was not Chan. Corporal Anderson described Mr. Nhan as displaying an extreme reaction when he was asked for identification. Corporal Anderson denied that he was pushing Mr. Nhan and Ms. Lemon to accept the controlled delivery package.
[5] On the next day, February 24th, a package from Hollister arrived for Ms. Lemon, and a ticket stub for that package was issued and taped to the mailbox for 3312. When Ms. Lemon came to the security desk with the ticket for the Hollister package and the ticket for the substituted envelope from the day before, Corporal Anderson apologized for asking for identification previously, explaining that he was new at the job. He then gave Ms. Lemon the original substituted envelope and the Hollinger package.
[6] Corporal Anderson had no dealings with Mr. Chan on either February 23 or 24.
[7] Corporal Gregory Thomas was the lead investigator and part of the surveillance team of this investigation. It was his evidence that he followed Ms. Lemon to the 33rd floor after she picked up the substituted envelope and the Hollister package on February 24th. He stated that as Ms. Lemon entered unit 3312, he heard a female voice say “I got it”.
[8] Corporal Craig Elliot was another of the RCMP officers on scene on February 24th. He was in the 33rd floor stairwell, looking through a window in the stairwell door, when he saw Ms. Lemon enter unit 3312, after she had picked up the substituted envelope and the Hollister package. It was his evidence that when she entered the unit, she said “I got it, the one from yesterday” in an excited tone, and that a male voice responded by saying “awesome.” Corporal Elliot’s evidence was that he was about 15 to 20 feet away when he heard these utterances, and that the stairwell door had been propped open a bit.
[9] Sergeant Jennifer Oliveros was also part of the RCMP team on February 24th. She entered the hallway outside unit 3312 after the take down by her fellow officers. Among other things, Sgt. Oliveros observed a Harry Rosen bag on the floor. She looked into it and saw stacks of money in Ziploc plastic bags. As agreed, the money totaled just over $92,000. According to Sgt. Oliveros, there were two sheets of white paper in the Harry Rosen bag on top of the money. These two sheets were Bills of Lading addressed to Ontario Forensic Pathology Services from HLS Linen Services. As further agreed, two of Mr. Nhan’s fingerprints were on the plastic packaging and he worked for HLS Linen Services.
[10] It was the collective evidence of the officers who entered unit 3312 after the arrest of Mr. Nhan, Ms. Lemon and Ms. Halford, that the substituted envelope was left on the kitchen counter, in plain view.
[11] After the presentation of viva voce evidence, on day two of the trial, counsel advised that the remaining evidence would be tendered by a second Agreed Statement of Facts. Upon tendering the second ASF, the Crown closed its case, and neither accused chose to call evidence. The second ASF provides as follows:
(1) The accused, Mr. Chan, provided Officer Peter Ferguson with the combination to the safe located in the wardrobe in the living room of unit 3312 at 4968 Yonge Street. The RCMP used that combination to open the safe.
(2) Mr. Chan used the name “Jackie Chan” on some of his videos posted on YouTube in which he performs mixed martial arts. Alan Lee, Mr. Chan’s friend, has never heard or seen Mr. Chan or anyone else refer to Mr. Chan as “Jack Chan”.
(3) Alan Lee arrived at unit 3312 at 7:30 p.m. on February 24, 2017 with plans to spend time with Mr. Chan that night.
(4) Some letter-sized mail items may be delivered to inside a unit mailbox at 4968 Yonge Street, without any procedure involving a mailbox slip. To Mr. Chan’s knowledge, only Mr. Chan had a key to open the unit 3312 mailbox.
(5) The accused, Mr. Nhan, was in possession of a key to unit 3312 when he was arrested in the hallway outside unit 3312 on February 24, 2017.
Circumstantial Nature of the Case
[12] This case is grounded in circumstantial evidence. Where one or more elements of an offence relies largely on circumstantial evidence, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits (see R. v. Villaroman, 2016 SCC 33; also R. v. Gill, 2017 ONSC 3558, at para. 9). As stated in Villaroman, at para. 35, the issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. That said, circumstantial evidence is not to be evaluated piece by piece, but rather, the evidence is to be considered as a whole and assessed cumulatively (see R. v. Ukwuaba, 2015 ONSC 2953, at para. 98).
Count 2: Attempted Possession for the Purpose of Trafficking
[13] Neither Mr. Chan nor Mr. Nhan was in actual possession of the Fentanyl. The Crown’s case is one of constructive possession.
[14] As set out in R. v. Morelli, 2010 SCC 8, constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”. Criminal Code, s. 4(3)(a) Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person (see R. v. Morelli; and R. v. Biggs, 2016 ONCA 910).
[15] The Crown submits that Mr. Chan, Mr. Nhan and Ms. Lemon jointly possessed the controlled delivery for the purpose of trafficking.
Attempted Possession for the Purpose of Trafficking: Mr. Chan
[16] With respect to Mr. Chan, the Crown relies on the following:
(1) Mr. Chan owned the unit, and received rent from Mr. Nhan and Ms. Lemon.
(2) Mr. Chan has control over the unit, given that he could stay there when he wanted to and keep some personal effects and a safe in the living room. The safe contained 3 silver bars and $2,460.
(3) Mr. Chan arrived at the unit about two hours after Mr. Nhan and Ms. Lemon left without taking the controlled delivery package.
(4) The controlled delivery package was addressed to “Jack Chan”, that is, the same surname as Mr. Chan. As well, Mr. Chan had used the name “Jackie Chan” on some YouTube videos.
(5) Drug traffickers would not expose a valuable product like Fentanyl to loss or discovery by a third party. In other words, the Crown submits that the package would not have been sent to Mr. Chan’s unit or left on the kitchen counter for him to discover if he was not involved.
[17] Overall, the Crown submits that the only reasonable inference is that Mr. Chan knew that the controlled delivery package had been picked up by Mr. Nhan and Ms. Lemon, and left in unit 3312, which he owned and over which he had a measure of control.
[18] With respect, I am not persuaded by the Crown’s submissions. In particular, I note:
(1) There was no evidence to establish that Mr. Chan took any steps to possess either of the Fentanyl packages.
(2) There was no evidence that Mr. Chan communicated with anyone, or made any inquires, regarding the Fentanyl packages.
(3) While the addressee on the package had the surname “Chan”, it was addressed to “Jack”, not “Jeffrey” Chan and there is no evidence that Mr. Chan ever used the name Jack. The name “Jackie Chan” that Mr. Chan had used on a YouTube video is also the name of a famous Asian actor. In contrast, there is agreed evidence from a friend of Mr. Chan’s that he never knew Mr. Chan to go by, or be referred to, as “Jack”. Further, it was the evidence of Corporal Thomas that the name of a recipient on drug packages is often fictitious.
(4) There is no evidence that Mr. Chan entered unit 3312 on February 24, 2017.
(5) When the two packages were sent to unit 3312, Mr. Chan was living in Waterloo.
(6) There was no evidence as to the last time that Mr. Chan had been at the Yonge Street unit prior to February 24th.
(7) There is no evidence that Mr. Chan received mail or any packages at unit 3312.
(8) Mr. Chan was cooperative with the police as he gave them the code to his safe, an action seemingly inconsistent with the submission that there were proceeds of crime in the safe.
[19] In sum, the Crown’s case at its highest is that Mr. Chan owned unit 3312; he arrived with a friend at 7:34 p.m. on February 24th, some two hours after Mr. Nhan and the two women had left; and that he is a friend of Mr. Nhan’s. It is speculative to conclude when he would have entered the unit, whether the controlled package was there, and if so, whether Mr. Chan would have seen it, and what he would have done with the package if he had seen it.
[20] On the evidence, it cannot be said that the only reasonable inference to be drawn from the evidence is that Mr. Chan knew that the Fentanyl package was in unit 3312; that he knowingly put or kept the Fentanyl package in unit 3312; and that he had the package in the unit for his use or benefit of that of another person. The Crown has not established constructive possession beyond a reasonable doubt.
[21] Mr. Chan is not guilty of Count 2, attempt to possess Fentanyl for the purpose of trafficking.
Possession of Proceeds of Crime: Mr. Chan
[22] Consequently, and in accordance with the Crown’s closing submissions, Mr. Chan is not guilty of Count 4, possession of property or proceeds of property over $5,000.00, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment.
Attempted Possession for the Purpose of Trafficking: Mr. Nhan
[23] With respect to Mr. Nhan, the Crown relies on the following:
(1) Mr. Nhan and Ms. Lemon were living at unit 3312 for several months and paying rent. Mr. Nhan had a key to unit 3312, and that key was in his possession immediately after he left the unit on February 24th.
(2) On February 23rd, Mr. Nhan attended the security desk with Ms. Lemon to pick up the mail, and was visibly agitated when Corporal Anderson brought out the controlled delivery envelope and asked for identification.
(3) On February 24th, when Ms. Lemon returned to unit 3312 with the controlled delivery envelope, the evidence of Corporal Thomas was that Ms. Lemon stated, “I got it”. According to Corporal Elliot, Ms. Lemon said, “I got it, the one from yesterday”, and a male voice responded with “awesome”. Corporal Elliot testified that by the tone of the voices, both Ms. Lemon and the male were excited. Only Mr. Nhan, Ms. Lemon and Ms. Halford were in the unit at the time, and it is agreed that Ms. Halford had neither control nor knowledge of the Fentanyl patches and cash. Consequently, it is reasonable to infer that it was Mr. Nhan who was excited and said “awesome”.
(4) After leaving the unit minutes later, the bag with over $90,000 in stacks of cash was found in the hallway. Mr. Nhan’s fingerprints were found on the plastic in which the cash was wrapped, and two documents relating to his workplace were found on top of the cash in the bag. Given Ms. Halford’s non-involvement, it is reasonable to infer that the bag was carried out by either Mr. Nhan or Ms. Lemon.
(5) The controlled delivery package was found in plain view on the kitchen counter, within a small condominium unit of about 500 to 600 square feet.
[24] Given these circumstances, the Crown submits that the only reasonable inference to be drawn is that Mr. Nhan knew that the Fentanyl package was in unit 3312; that he knowingly kept the Fentanyl package in unit 3312; and that he had the package in the unit for his use or the benefit of that of another person. As a result, the Crown submits that Mr. Nhan had constructive possession of the Fentanyl.
[25] The defence submits that the Crown has not established constructive possession by Mr. Nhan beyond a reasonable doubt. In particular, the defence notes:
(1) Mr. Nhan did not touch the controlled delivery package.
(2) The controlled delivery package was unopened inside unit 3312, and to infer that Mr. Nhan knew what was inside the package would be an impermissible leap of inference.
(3) Mr. Nhan had ordered a weight lifting belt on February 17, 2017 and was awaiting its arrival on February 23 and 24, 2017. In this regard, I find that very little, if any, weight should be given to the evidence that a weight lifting belt was ordered. There is no indication in the evidence as to when delivery was expected, and it is equally likely that it would have been delivered before February 23rd as it is that it would have been delivered after February 24th.
(4) Mr. Nhan was never seen with the Harry Rosen bag of cash, and upon arrest, it was closer to Ms. Lemon than to him. While I accept that Mr. Nhan was not seen with the Harry Rosen bag in his hands, I do not find that the evidence on the location of the bag in the hallway is especially helpful. Mr. Nhan, Ms. Lemon and Ms. Halford were arrested in the hallway outside unit 3312 as they exited. The evidence of Corporal Thomas was that the parties initially were not compliant when told they were under arrest and he took Mr. Nhan to the ground. While Corporal Saade stated that the bag was closer to where Ms. Lemon was lying, he also noted that the hallway was only 3 to 4 feet wide, and the bag was within arm’s length of each of Mr. Nhan, Ms. Lemon and Ms. Halford. Corporal Elliot stated that when he first saw the bag, it was where the two females were lying on the ground, but he could not say it was closer to Ms. Lemon.
[26] When assessing the circumstantial case against Mr. Nhan, it is the cumulative effect of all the evidence that must establish guilt beyond a reasonable doubt. Individual pieces of circumstantial evidence must not be examined in a piecemeal way, as they are “the links in the chain of ultimate proof”. (R. v. Chen, 2017 ONSC 4083, at para. 10)
[27] What are the links in this case? Are the circumstances such that the inference of knowledge of the controlled substance is the only reasonable inference that can be drawn? I highlight the following:
(1) Mr. Nhan was agitated when unable to obtain the controlled delivery on February 23rd.
(2) Mr. Nhan was excited when Ms. Lemon advised that she had picked up the package from the day before. In this regard, given the relatively small size of the controlled delivery envelope that Mr. Nhan saw on February 23rd, it cannot be said that he was excited because the weight lifting belt had been delivered.
(3) The package, before substitution, was worth $18,800 to $56,000. The value of a controlled substance can be relevant to the issue of knowledge. (R. v. Gill, 2017 ONSC 3558, at para. 53) Mr. Nhan lived at and had the keys to unit 3312, where the package was left in plain view on the kitchen counter. It is common sense to conclude that whoever owned this drug would not want to risk it being left with someone he or she did not trust. Stated differently, it is unreasonable to conclude that this valuable product would be exposed to loss or discovery by uninvolved persons. (R. v. Sandhu, 2017 ONCA 709; R. v. McIntosh, [2003] O.T.C. 246 (S.C.), at para. 46)
(4) Mr. Nhan’s fingerprints were found on the plastic packaging containing some $92,000 in cash. While this cash is not directly connected to the controlled delivery, its quantum is consistent with the fact that drug trafficking is a cash business. As a matter of common sense, the cash and the fingerprints found must be considered in conjunction with all the other evidence. This is not a case like R. v. Mars, where the only evidence connecting the accused to the robbery was his fingerprint on a pizza box.
(5) A second package arrived on the day of the controlled delivery with more Fentanyl packages inside.
[28] I have given these facts, and the inferences that can be drawn from them, careful consideration, applying human experience and common sense. To reiterate, except for police intervention, there were very valuable Fentanyl patches and over $90,000 in cash in the small one-bedroom unit in which Mr. Nhan lived. The events involving the controlled delivery package and the cash found in Mr. Nhan’s vicinity all occurred within a tight temporal and physical proximity.
[29] The basic question to be answered is whether the circumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. (R. v. Gill, 2017 ONSC 3558, at para. 13, quoting R. v. Villaroman, 2016 SCC 33)
[30] In assessing circumstantial evidence, a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence. (C.(R.) v. McDougall, 2008 SCC 53, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In Re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70; R. v. Ukwuaba, 2015 ONSC 2953, at para. 99) This principle was also expressed in Villaroman, where the Court stated that the Crown does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. (R. v. Bagshaw, at p. 8) “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (See Villaroman, at para. 37)
[31] In this case, I find that on the totality of the evidence, there is no reasonable possibility that Mr. Nhan did not have knowledge of the controlled delivery envelope, that Mr. Nhan did not knowingly keep that envelope in unit 3312, and that he did not intend to have the envelope in the unit for his “use or benefit” or that of another person. To find otherwise would be speculative and unreasonable, and fly in the face of common sense.
[32] For all these reasons, I am satisfied beyond a reasonable doubt that Mr. Nhan was in constructive possession of the controlled delivery package of Fentanyl. The parties have agreed that if possession is established, it was for the purpose of trafficking.
[33] Neither the Crown nor defence made submissions on the issue of attempt to possess for the purpose of trafficking. There is no issue that the law of attempt is applicable in this case. As stated in R. v. Chan, at para. 63, the fact that the appellant's act of acquiring the package would have consummated the act of possession had the authorities not intervened, should not preclude conviction based on the law of attempt where the authorities' intervention prevented consummation of the complete offence.
[34] For all these reasons, Mr. Nhan is found guilty of Count 2, attempt to possess Fentanyl for the purpose of trafficking.
Count 4: Possession of Property or Proceeds of Property over $5,000, knowing it was Obtained by Crime: Mr. Nhan
[35] The value of the Fentanyl sent to unit 3312 has been agreed, as has the fact that drug trafficking is generally a cash business. I have found that Mr. Nhan had constructive possession of the controlled delivery envelope. In my view, it flows logically and inextricably from that finding that Mr. Nhan also had knowledge and control of the cash totaling $92,370 which was wrapped in plastic on which his fingerprints were found and which was situated underneath two documents from his work, and that the cash was the proceeds of crime.
[36] Mr. Nhan is found guilty of Count 4.
Counts 1 and 3: Unlawfully Importing Fentanyl into Canada
[37] The Crown candidly acknowledged that its case on importing was not strong.
[38] In order to find an accused person guilty of importing, the first element that must be established beyond a reasonable doubt is that the accused imported a substance into Canada. This means that the accused must have brought the substance into Canada, or caused someone else to bring it in, from outside Canada.
[39] As stated in R. v. Gill, 2017 ONSC 3558, there is a fundamental distinction between an accused person’s knowledge that he came into possession of a controlled substance and his knowledge that the controlled substance originated outside of Canada. Something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or a party to, importing. (R. v. Ukwuaba, 2015 ONSC 2953, at para. 105)
[40] In this case, there is insufficient evidence to conclude that either Mr. Chan or Mr. Nhan imported, or caused someone else to import, the Fentanyl into Canada.
[41] Mr. Chan is not guilty of Counts 1 and 3.
[42] Mr. Nhan is not guilty of Counts 1 and 3.