R. v. Cao, 2020 ONSC 1554

COURT FILE NO.: 321/18

DATE: 20200313

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Robert Truong Cao

Defendant

Myfanwy Smith, for the Director of Public Prosecutions

Aaron Prevost, for the Defendant

HEARD: January 6, 7, 8 and 9, 2020

Justice R. Raikes

1The defendant, Robert Cao, is charged with possession for the purpose of trafficking cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”).

2On July 17, 2017, London police conducted searches pursuant to search warrants issued for Mr. Cao’s residence, a business unit at 78 Charterhouse Cres. (hereafter “the business unit”) in London, and Mr. Cao’s vehicle – a black Toyota RAV4.

3Police found cocaine inside two containers in a locked tool box at the business unit. The tool box also contained a digital scale with cocaine residue and packaging materials.

4No drugs were found in his residence and car although police found a hidden compartment in the trunk of his car that contained a glass measuring cup and red plastic strainer. Both were examined and found to have trace amounts of cocaine on them. Exactly how and when the cocaine was in contact with those items is unknown. The compartment was wired to the engine and had a hydraulic trap. Police were unable to find the opening mechanism and had to resort to a pry bar to open it. Police also found an unopened box of baggies and spiral notebook elsewhere in the car.

5Police did not undertake a vehicle ownership check to determine who owned the vehicle before Mr. Cao, nor was evidence adduced that the previous owners did not install the compartment.

6Upon search of his residence, police found the following in his bedroom: four cell phones, $1440 in cash under a protein supplement container on a desk, and $3,000 cash in a bundle in the hood of a sweat shirt in his closet.

7There is no direct evidence that the tool box and drugs in the tool box belong to Mr. Cao. There is no DNA or fingerprint evidence showing that Mr. Cao handled the tool box or the containers in that box in which the cocaine was found. Although subject to physical surveillance over a number of days, there is no evidence that Mr. Cao was ever observed carrying or handling the tool box.

8The physical and electronic surveillance strongly suggest that Mr. Cao was engaged in selling drugs, but there is no direct evidence to corroborate same. None of his customers were stopped and searched immediately following suspected transactions. No customer testified that he or she purchased cocaine from Mr. Cao. Police were not close enough to the alleged transactions to observe Mr. Cao handing over drugs or to be sure that whatever was being transferred was cocaine.

9The physical surveillance by police was not 24-hour surveillance. There were gaps between days when the surveillance was done. Police were never inside his residence or the business unit before the searches on July 17, 2017. No attempts were made to purchase cocaine from Mr. Cao by an undercover officer or at least there is no evidence of same.

10Crown counsel concedes that the case against Mr. Cao is circumstantial.

Legal Principles

11There are two fundamental principles that apply to every criminal trial:

a. The presumption of innocence; and

b. The requirement that the Crown prove each constituent element of the offence beyond a reasonable doubt to displace the presumption of innocence.

These principles apply regardless of the offence, the accused or the alleged victim.

12A reasonable doubt is one that is based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not a doubt that is farfetched or frivolous, nor one based on sympathy or prejudice.

13It is not enough that I conclude that Mr. Cao is probably or likely guilty. That is not proof beyond a reasonable doubt. I must be sure that he committed the offence.

14The standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact; viz. to each of the constituent elements of the offence. It does not apply piecemeal to individual items of evidence: R. v. Wu, 2017 ONCA 620 at para. 15.

15In R. v. Lights, 2020 ONCA 128 at paras. 36-38, Watt J.A. summarized the law applicable to cases where the Crown’s case is largely or entirely circumstantial as follows:

36When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.

37To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p.76.

38Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8.

16In Lights, Watt J.A. also summarized the law with respect to proof of possession at paras. 44-52:

44Section 4(3) of the Criminal Code defines possession. It includes:

• personal possession;

• constructive possession; and,

• joint possession.

Our concern here is with personal possession and constructive possession. Knowledge and control are essential elements common to both: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.

45When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See also R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.

46When personal possession is not alleged or it cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

47Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:

i. has knowledge of the character of the thing;

ii. knowingly puts or keeps the thing in a particular place for the use or benefit of the accused or of another person; and

iii. intends to have the thing in the place for the use or benefit of the accused or of another person.

Morelli, at para. 17.

48In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial

49Two further points deserve brief mention.

50When things are found in a premises or place occupied by an accused, no presumption of knowledge or control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.

51We define knowledge as true belief: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 41. It includes not only actual knowledge but also wilful blindness.

52Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.

Analysis

17As mentioned, the drugs were found in a locked tool box in the business unit.

18The business unit is part of a commercial plaza. Entrance to the unit is through a garage door or an adjacent man door. Both doors lock. Mr. Pham was called by the Crown as a witness. He was initially a co-accused with Mr. Cao but the charge was withdrawn against him after he signed a document the details of which he was foggy on.

19Mr. Pham testified that he rented the business unit. Mr. Cao was not a tenant. The landlord was not called as a witness and a copy of a lease was not tendered in evidence. Exhibit 11 is a hand-written page which appears to indicate amounts paid or payable each month for the unit but there is no evidence who authored the document, nor does it indicate the name of the tenant. It does not specify the terms of the tenancy.

20Mr. Pham testified that he rented the business unit for the purpose of running a wheel repair business. The business never got off the ground although some of the equipment for the business was in the unit in the garage area.

21The interior of the business unit is comprised of a large open area accessible through both exterior doors. Photographs taken during the search show the presence of some wheel equipment, a partially constructed paint booth and motorcycles, one of which belonged to Mr. Cao.

22In addition to the garage area, there was an office with an adjacent storage room, and a washroom. The office had a folding table and white board as well as a large brown sectional sofa.

23Immediately adjacent to the office is the storage room. The storage room had a set of shelves against the wall. Beside it was a small refrigerator and microwave. The tool box was found on the floor between the refrigerator and doorway to the office. The tool box was situate next to the wall that separates the office from the storage room.

24The office and storage rooms are accessible through an interior door from the garage area. The interior door had a lock for which a key was required. Police forced open that door during the search.

25Mr. Pham testified that he threw a couple of parties at the unit. He testified that there were people coming and going from the unit regularly. There is exterior surveillance video that shows a group of men coming from a nearby social club unit to the business unit one evening. He also indicated in cross-examination that he left his keys to the unit lying around and anyone could have taken his keys.

26Police surveillance and exterior surveillance video show Mr. Cao coming and going from the business unit on a regular basis including after midnight. Although Mr. Pham testified that Mr. Cao did not have a key to the unit, I do not believe him on that point.

27There is an exterior video camera that looks along the front of some units including the subject unit. The video is not sharp or clear enough to see Mr. Cao’s face but it does show Mr. Cao’s vehicle going into and coming out of the unit. Over the course of several days’ surveillance by police, only Mr. Cao was observed to drive his vehicle. The video also shows Mr. Cao pull up to the garage door, get out of his car and go in through the man door. On some occasions, particularly at night, Mr. Cao appears to be unlocking the man door although the video is not sharp enough to see a key.

28I note that no evidence was tendered to show that Mr. Cao had keys to the unit beyond what the video showed. There is no evidence for example that Mr. Cao had a key chain in his possession when arrested and the keys to the unit were on it. There was also no evidence that the key to the exterior man door would also unlock the interior door to the office area etc. Thus, Mr. Cao’s access to the storage room where the drugs were found when the interior door was locked is unknown.

29During the search of the office, police found a single invoice to Mr. Cao for a UPS mailbox.

30I observe that:

• There is no evidence that Mr. Cao was the owner of or ever touched the tool box in which the drugs were found. Mr. Cao was never observed on video or by police or any witness to have the tool box in his possession;

• There is no evidence that the containers in the tool box that held the drugs were ever touched by Mr. Cao or belonged to him;

• There is no evidence that other items found in the tool box belonged to Mr. Cao;

• There is no evidence who put the tool box in the storage room or who put the drugs in the tool box;

• There is no evidence that Mr. Cao was a tenant of the unit;

• There is no evidence that Mr. Cao had a key to the locked interior door behind which the tool box was found;

• There is no evidence that Mr. Cao had control of the room or rooms where the tool box was found; and

• There is no evidence that Mr. Cao knew the tool box was there.

31Crown counsel submits that I should infer that the drugs in the tool box belonged to Mr. Cao. He had a key to the premises. He was there regularly. He often went from that unit to short meetings at various locations consistent with the sale of drugs. He engaged in anti-surveillance driving techniques. The drugs were found in the unit where other items belonging to Mr. Cao were found. The UPS mailbox invoice to Mr. Cao was found in the office which evidences his use of that area.

32I agree with Crown counsel that the hidden compartment in Mr. Cao’s vehicle, the items found in that compartment, the extra cell phones in his residence, and his activities appear consistent with drug dealing. On the evidence, it seems to me very likely that Mr. Cao was indeed trafficking illicit drugs. The evidence is not sufficient, however, to compel a finding that the cocaine found in the locked tool box at 78 Charterhouse Cres. belonged to Mr. Cao.

33I have already summarized the gaps in the evidence concerning possession, actual and constructive. There is an absence of evidence that Mr. Cao knew the cocaine was in the tool box or that he knowingly put the tool box in the storage room of the business unit. The mere fact that Mr. Cao had regular access to and use of the unit does not suffice to establish constructive possession of the cocaine. There were others who were in and out of the unit who cannot be ruled out as responsible for the tool box and its contents, including Mr. Pham who was not an especially credible or reliable witness. I am not satisfied beyond a reasonable doubt that Mr. Cao’s guilt is the only reasonable inference to be drawn from the evidence as a whole.

34In the circumstances, I am not satisfied beyond a reasonable doubt that the cocaine found in the business unit was in Mr. Cao’s possession or control. I am not satisfied beyond a reasonable doubt that the only logical alternative is that the cocaine and tool box were his.

35I find the defendant not guilty.