Court File and Parties

COURT FILE NO.: CR-18-9-456 DATE: 2020-05-06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HO TING CHAR Defendant

Counsel: Kerry Benzakein and Kester Yeh, for the Crown Kim Schofield, for the Defendant

HEARD: January 13, 14, 15, 16, 17, 20, 22, 23, 27, 28, 29, 30, 31 and February 3, 2020

Byrne J.

Introduction

[1] Ho Ting Char comes before this Court charged with one count of conspiracy, one count of unlawful production of methamphetamine and two counts of unlawful production of ketamine. It is alleged that between October 1, 2016 and March 24, 2017, Mr. Char along with a number of other males, was producing methamphetamine and ketamine at 80 Colville Road and at 107 Northolt Crescent, in the City of Toronto.

[2] Mr. Char elected to be tried without a jury in the Superior Court of Justice.

[3] The Crown’s case consisted of 13 viva voce witnesses. In addition, and on consent, 27 exhibits were filed which included over 200 photographs and over 100 video clips from covert surveillance cameras. Most of the witnesses were called for the purpose of narrating and providing a contextual backdrop to assist the Court in viewing and assessing the video and photographic evidence. The parties agreed at the outset that any evidence falling into this category was not being admitted for the truth of its contents. The defence called no evidence.

[4] This is my judgment.

Legal Principles

[5] The principles to be applied in this case are the same as those to be applied in any criminal trial.

[6] As in every criminal case, Mr. Char is presumed to be innocent, unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt.

[7] I remind myself that reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[8] It is not enough for me to believe that Mr. Char is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[9] The sole issue in this case is identity. In that regard, the Crown’s case against Mr. Char is entirely circumstantial. Accordingly, I remind myself that in order to find Mr. Char guilty, I must be satisfied beyond a reasonable doubt that such a finding is the only logical conclusion or inference based on the evidence as a whole. (See: R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 at paras. 22–25; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 38–43.)

[10] The distinction between inference and speculation is difficult. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion the trier of fact may, but not must, draw in the circumstances. (See: Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, 139 O.R. (3d) 161, at para. 61, leave to appeal to S.C.C. refused, 38022 (13 December 2018).) (See also: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349 at paras. 229–231, leave to appeal to S.C.C. refused, 37533 (8 February 2018).)

[11] Speculation, on the other hand, involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn. (See: R. v. Chanmany, 2016 ONCA 576, 328 C.C.C. (3d) 578, at para. 45, leave to appeal to S.C.C. refused, 37488 (1 June 2017).)

[12] It is for the trier of fact to determine what inferences are to be drawn from the evidence taken as a whole and whether the cumulative effect of those inferences satisfies or falls short of the standard of proof required in a criminal trial.

Overview of Evidence

[13] All charges against Mr. Char stem from a joint forces police investigation into clandestine laboratories producing ketamine and methamphetamine called Project Apollo. The investigation commenced in August 2016 and concluded on takedown day on March 24, 2017. This investigation focused on the following four locations:

(1) 80 Colville Road – A unit in an industrial building. (2) 107 Northolt Crescent – A detached home in a residential neighborhood. (3) 7 Copthorne Drive – A detached home in a residential neighborhood. (4) 20 Chasser Drive – A home in a residential neighborhood.

[14] On February 2, 2017, police executed a covert general warrant inside the front porch of 107 Northolt Crescent. A sample from a white paper funnel tested positive for ketamine. At the time of warrant’s execution, all items in the porch were innocuously stored. It would not have been evident to any one entering that porch that nefarious items connected to controlled substances like ketamine and methamphetamine were being stored there.

[15] On March 24, 2017, search warrants were executed at each of the aforementioned locations. The agreed statement of fact, contained in Exhibit 1, sets out a detailed inventory of the items seized by police at each location which include ketamine, methamphetamine along with other ingredients and equipment necessary for production of these substances.

[16] Further, defence concedes that at some point prior to takedown day, methamphetamine and ketamine were being produced at 80 Colville Road.

[17] There is one other unusual aspect to this case that bears mentioning, especially in the context of an allegation of conspiracy. The case against Mr. Char turns entirely on video surveillance evidence and the conduct of Mr. Char and others. There is absolutely no evidence of any verbal communication between any of the males including Mr. Char.

Identification and Conduct of Mr. Char

[18] The identification of Mr. Char as depicted in the videos, is very much in issue in this case. A male whom the police believe to be Mr. Char was captured in 11 surveillance videos. The Crown alleges that Mr. Char was in attendance and captured on video at 80 Colville Road on March 6, 8, 9 and 10, 2017, at 107 Northolt Crescent on March 10 and 16, 2017 and at 7 Copthorne Drive on March 16, 20, and 23, 2017. A male believed to be Mr. Char was also captured on video on March 9, 2017 at the Selco Elevator location and on March 20, 2017 having dinner with Mr. Gao at the Kebob restaurant.

[19] Defence takes no issue with the identification of Mr. Char and his attendance at 107 Northolt Crescent, Selco Elevator and the Kebob restaurant.

[20] The defence does challenge the identification of Mr. Char in the remaining videos. In the absence of a Leaney [1] application (as is the case before me), it falls to the trier of fact to determine if identification has been proven beyond a reasonable doubt. As set out in R. v. Nikolovski, [2] a trier of fact may determine identification solely on the basis of video tape evidence as long as the video is of sufficient clarity and quality and shows the accused for a sufficient period of time. In this case, there is no issue as to the authenticity and accuracy of the video evidence. Further, I have watched each video multiple times and have had the benefit of Mr. Char appearing before me in person every day for three weeks. What follows is a summary of each video and my findings.

Date: March 6, 2017 Location: 80 Colville Road Time: 1715 hrs Source: Covert Camera

[21] The covert camera captures a male walking from the garage door at 80 Colville Road across the parking lot. The male has nothing in his hands. He is on camera for approximately five seconds. The male is wearing a dark coloured toque, a dark jacket and pants. The male is also wearing glasses. The clothing matches that worn by Mr. Char on March 9, 2017 when he attended at Selco Elevator. Further, the body size of this male is consistent with Mr. Char’s. Despite the brief opportunity to observe the male’s full face, I am satisfied beyond a reasonable doubt that the male was Mr. Char.

[22] Another male person follows Mr. Char out of the garage. The police identified this male as Mr. Do. I am not convinced. Although the officer testified that he had observed this same male 10 or 15 times over the course of surveillance, he provided no basis for his belief that it was Mr. Do. Crown counsel also alleges that shortly after Mr. Char left the building, a black Honda Civic belonging to Mr. Sun drove out of the bay door. I acknowledge that a black Honda Civic did exit the bay door, however, there is no evidence that it belonged to Mr. Sun. There is an absence of evidence about who owned any and all vehicles captured on the video surveillance footage.

Date: March 8, 2017 Location: 80 Colville Road Time: 1508 hrs Source: Covert Camera

[23] The covert camera captures a lone male wearing the same clothes as Mr. Char on March 6, 2017 exiting the rear bay door and entering the driver seat of a Subaru, parked in the parking lot at the rear of the building. The male drives away. The male has nothing in his hands. The camera catches a close up of the male’s face and I am satisfied beyond a reasonable doubt that the male was Mr. Char.

[24] As Mr. Char is driving away, a black Honda reverses out of the bay door and exits.

[25] Although I can see a person in the front passenger seat, I am unable to determine who that person is. I am also unable to determine the identity of the driver of the Honda.

[26] Another male also exits the bay door after the Honda. The male’s back is to the camera and I am not able to determine his identity.

Date: March 9, 2017 Location: Selco Elevator Time: 1630 hrs Source: Photographs

[27] Defence concedes that on this occasion, Mr. Char drove to Selco Elevator in the Subaru. Defence further concedes that Mr. Char had employees at that location assist him in loading a rust colored gas canister into the Subaru. Crown counsel argues that this is the same gas canister that was located in the garage at 107 Northolt Crescent on takedown day. Given the limited evidence on this point, I am not prepared to make that finding. Aside from the colour being somewhat similar, I have no basis of comparison. The photographs are of limited value. The photographs taken at Selco Elevator are from a distance and at no point am I able to see the entire canister.

[28] Further, there is no evidence of Mr. Char delivering the canister to 107 Northolt Crescent. Defence points out that there is no evidence of Mr. Char being surveillance conscious when he is loading the canister. Mr. Char was loading the canister in daylight in an open parking lot. It is agreed that there was a more private loading dock area that could have be utilized. It was not. I do not disagree that there is an element of suspicion when considered in conjunction with the rest of the evidence. However, absent further evidence as to what the canister contained and where Mr. Char took it, I am cautious about the weight I place upon it.

Date: March 9, 2017 Location: 80 Colville Road Time: 1730 hrs Source: Covert Camera

[29] The covert camera captures the rear bay door opening and two males exiting into the parking lot. It is dark outside and the exterior lighting is poor. I am unable to identify the male parties.

[30] The camera also captures a motor vehicle leaving the parking lot. It appears to be a Subaru. Crown counsel takes the position that because Mr. Char has been seen driving the Subaru on other occasions, it is logical to infer that he was driving it on this occasion. I disagree. There are a number of occasions where it is impossible to tell who was driving the Subaru and at least one occasion where Mr. Sun was driving the Subaru. Moreover, there is no evidence before me that the Subaru was owned, leased or registered to Mr. Char. This information, if available, would have fortified the Crown’s argument. On the record before me, I am not prepared to find that it was Mr. Char driving the Subaru on this occasion.

Date: March 9, 2017 Location: 80 Colville Road Time: 2007 hrs Source: Direct Observation of PC Johnston

[31] The officer observes a silver Subaru drive from the east laneway of 80 Colville Road to the west laneway of 80 Colville Road. For reasons previously stated, I am not prepared to find that Mr. Char was driving the Subaru on this occasion.

Date: March 9, 2017 Location: 80 Colville Road Time: 2025 hrs Source: Covert Camera

[32] The covert camera captures a silver Subaru reversing out of the bay door and driving down the laneway. For reasons previously stated, I am not prepared to find that Mr. Char was driving the silver Subaru on this occasion.

Date: March 10, 2017 Location: 80 Colville Road Time: 0832 hrs Source: Covert Camera

[33] The covert camera captures the Subaru arriving at the rear of 80 Colville Road. I cannot identify the driver. For reasons previously stated, I am not prepared to find that Mr. Char was the driver on this occasion.

Date: March 10, 2017 Location: 80 Colville Road Time: 0839 hrs Source: Covert Camera

[34] The covert camera captures the Subaru exiting 80 Colville Road. For reasons previously stated, I am not prepared to find that Mr. Char was the driver.

Date: March 10, 2017 Location:107 Northolt Crescent Time: 0913 hrs and 0918hrs Source: Covert Camera

[35] Defence concedes the identity of both Mr. Sun and Mr. Char in these two video clips. The covert camera captures a black Honda in the driveway. At 0913 hrs, Mr. Char and Mr. Sun are carrying white buckets from the trunk of the car into the porch area of the home. One of the buckets Mr. Char is carrying appears to have some liquid in it and it appears to be less than half full. Mr. Char also retrieves something from the front seat area of the car and puts it in the porch. I am unable to discern what this item was. This entire transaction takes only seconds.

[36] At 0918 hrs, Mr. Char and Mr. Sun are captured bringing in some other items from the trunk of the Honda in small bins into the porch area. They may have accessed the garage with the items. The entire transaction takes only seconds.

[37] Two buckets containing Ethyl Benzoate [3] were found in the garage of 107 Northolt Crescent on takedown day. Ethyl Benzoate is a liquid used in production of ketamine. In my review of the photographs of the content of the garage on takedown day, I observed at least six buckets with liquid in them in addition to the two found to contain Ethyl Benzoate. The two buckets containing Ethyl Benzoate were both full and the buckets carried in by Mr. Char were not. Further, the buckets carried into the porch by Mr. Char seemed to have a clear or transparent quality to them. The buckets containing Ethyl Benzoate were not transparent and one of them seemed to have a blue exterior. Again, very different from the buckets carried in by Mr. Char.

Date: March 10, 2017 Location: 80 Colville Road Time: 1045 hrs – 1047 hrs – 1214hrs – 1216hrs Source: Covert Camera and Direct Observations of PC Wahidie

[38] Defence concedes the identity of Mr. Sun and Mr. Char on these occasions. At 1045 hrs, Mr. Sun reverses a U-Haul truck into the bay at 80 Colville Road. At 1047 hrs, Mr. Char walks into the garage area with nothing in his hands. At 1214 hrs, Mr. Char walks out of the garage area immediately followed by the U-Haul truck exiting.

[39] At 1216 hrs, defence concedes that Mr. Char entered the silver Subaru parked at the back of 80 Colville Road.

Date: March 10, 2017 Location: 107 Northolt Crescent Time: 1255hrs – 1311hrs – 1430 hrs – 1520 hrs – 1535 hrs – 1540 hrs Source: Covert Camera – Surveillance Video – Direct Observation

[40] Defence concedes the identification of Mr. Sun, Mr. Lin and Mr. Char on these occasions. At 1255 hrs, a U-Haul truck arrives in the driveway followed by the Subaru. Mr. Char, Mr. Sun and Mr. Lin are all seen in the driveway area. At 1535 hrs, all three males start moving items from the back of the U-Haul truck into the garage. It is difficult to see exactly what the items are. At one point, Mr. Char appears to carry a brown cardboard box with black tape on it into the garage. Crown counsel points out that a similar box was found inside the garage on takedown day. [4] I agree that the photograph shows a box very similar to this one. There is no evidence, however, as to what was in the box. Mr. Char is also seen moving what appears to be a white funnel from the truck into the garage. A funnel similar to this one was located in the garage inside a Pampers box on takedown day. [5]

Date: March 11, 2017 Location: 7 Copthorne Avenue Time: 1340 hrs – 1406hrs – 1701 hrs – 1704 hrs Source: Covert Camera

[41] I am satisfied beyond a reasonable doubt that Mr. Char drove a Subaru to this residence and entered the home with what appears to be a briefcase in his left hand. I am satisfied that it is also Mr. Char captured on video at 1406 hrs exiting the residence and getting back into the Subaru. It would appear that Mr. Char remained in the residence for 26 minutes. Upon entering the house, Mr. Char was in the company of another male. I am unable to identify that male from the video clip. I am mindful that the Crown alleges that the male in this video is Mr. Gao and relies on photographs contained in an Intelligence Information Sheet as proof of said identification. Be that as it may, I am still unable to verify that the male is Mr. Gao. When Mr. Char leaves the residence, he is in the company of two males and I am unable to identify those males.

[42] I am satisfied that Mr. Char returns to the residence at 1701 hrs. He puts what appears to be a brown box and white banker box into the garage and leaves in the Subaru at 1704 hrs. There is no evidence as to the contents of these boxes.

Date: March 16, 2017 Location: 107 Northolt Crescent Time: 0853 hrs – 0926 hrs – 0932 hrs – 0947 hrs – 1206 hrs – 1222 hrs Source: Covert Camera

[43] Defence concedes that Mr. Char and Mr. Sun are captured in this video at the front door to the residence and the U-Haul truck is parked in the driveway. Defence also concedes that at 0947 hrs, Mr. Char walks to the front door with something white in his left hand. I am not able to discern what the item is but it is in a rectangle shape and looks like paper. The Crown alleges that Mr. Lin is also present at the same time as Mr. Char and Mr. Sun. Based on the evidentiary record before me, I am unable to identify Mr. Lin as the third male.

[44] The Crown alleges that at 1220 hrs, Mr. Char and Mr. Sun arrive at the residence in the U-Haul truck. I disagree. The video captures Mr. Sun reversing the U-Haul truck into the driveway of the residence. He is alone.

[45] At 1222 hrs, Mr. Sun and Mr Char are captured on video each bringing a bucket into the porch. I am unable to conclude that the buckets came from the U-Haul truck. The doors to the U-Haul truck do not appear to be open in the video clips before me. The Crown alleges that the bucket carried by Mr. Char had liquid in it. I disagree. I have watched the video numerous times and no liquid is visible.

[46] The Crown alleges that at 1225 hrs, Mr. Char and Mr. Sun leave the residence in the U-Haul truck. I disagree. The video does not capture the moment the U-Haul truck leaves. I have no evidence as to when it left or who was in the truck.

Date: March 19, 2017 Location: 7 Copthorne Drive Time: 1009 hrs – 1137 hrs – 1325 hrs – 1334 hrs – 1638 hrs – 1736 hrs Source: Covert Camera

[47] I am satisfied that it is Mr. Char captured in all of these very short video clips. The video clips of Mr. Char on this occasion are seconds long and show him either going in or out of the residence with either a thin briefcase or nothing in his hands. At 1736 hrs, he is seen exiting the front door holding a white box in his left hand. I am unable to identify the other males in these clips.

Date: March 20, 2017 Location: 7 Copthorne Avenue Time: 1759 hrs – 1924 hrs Source: Covert Camera

[48] I am unable to identify Mr. Char in any of these video clips.

Date: March 20, 2017 Location: Bayami Kabob Restaurant Time: 2046 hrs Source: Direct Observation

[49] Defence concedes that Mr. Char and Mr. Gao were having a meal at this restaurant with four other people. It appears to be a family gathering of some sort.

Date: March 23, 2017 Location: 7 Copthorne Avenue Time: 1840 hrs and 1951 hrs Source: Covert Camera

[50] I am unable to identify Mr. Char in these video clips.

Date: March 20, 2017 Location: 20 Chasser Drive Time: 2152 hrs Source: Direct Observation of DC McKercher

[51] Detective Constable McKercher testified that he observed Mr. Char and an unknown male leave a restaurant in the Subaru and drive to 20 Chasser Drive.

[52] The officer testified that he relied on a photograph in an Investigative Services Report to identify Mr. Char. That photograph was not entered into evidence leaving this Court with no ability to assess the officer’s testimony on this point. Accordingly, I am not prepared to find that this officer observed Mr. Char on this occasion.

Expert Evidence

[53] Scott McGregor is employed by Health Canada as a drug analyst. He was qualified as an expert, and on consent permitted to provide opinion evidence, in relation to the known chemical roots in the production of methamphetamine and ketamine, the role certain substances play in the synthesis of those substances, and the laboratory and physical equipment used for production purposes.

[54] On March 24, 2017, Mr. McGregor attended at 80 Colville Road for the purposes of assisting police at that location by identifying substances and equipment consistent with the production of methamphetamine and ketamine. Mr. McGregor also played a vital role in identifying safety hazards at this location. Clandestine labs are inherently dangerous environments, the dismantling of which is fraught with risk to the investigators. Safety is paramount.

[55] All the substances and physical equipment located at 80 Colville Road were identified by Mr. McGregor as being consistent with the production of methamphetamine and ketamine. Remnants of both drugs were found on the premises. In my view, it is self-evident from the photographs and Mr. McGregor’s evidence that at some point prior to takedown day, methamphetamine and ketamine were being produced at 80 Colville Road. Defence counsel concedes same.

[56] The same conclusion cannot be drawn from 107 Northolt Crescent. Mr. McGregor did not attend that location. He did review photographs and had the benefit of substances that were sampled and tested. Remnants of ketamine were found on some paper towel inside a bucket in the garage. Many other ingredients and equipment were also located in the garage. The most notable difference between 107 Northolt Crescent and 80 Colville Road is the set up. The photographs of the interior of the garage at 107 Northolt Crescent are innocuous. They depict a typical garage with some garbage, some boxes of items, containers and other things. Certainly, to the untrained eye, nothing seems on its face suspicious. I agree that the garage contained many items necessary for the production of methamphetamine and ketamine, however, there is no evidence before me that it was set up for production on takedown day. Nor am I prepared to conclude on the evidentiary record before me that it had been used as a facility for production prior to takedown day. I am satisfied that it was a storage facility for the production of methamphetamine and ketamine. I am further satisfied that it was connected to the 80 Colville Road location.

Other Video Surveillance Footage

[57] Also in evidence is video footage capturing the activity of males other than Mr. Char on the following dates: November 5, 2016, January 5, 2017, March 2, 2017, March 3, 2017, March 7, 2017, March 12, 2017, March 21 2017, March 22, 2017 and March 23, 2017. I have reviewed this footage in detail and will refer to it when necessary in my analysis.

Agreed Facts

[58] At the outset of trial, counsel made a number of other admissions pursuant to s. 655 of the Criminal Code, R.S.C., 1985, c. C-46. Those admissions are contained in full in Exhibits 1 and 27. Included in those admissions is an agreed fact that methamphetamine and ketamine along with other items and substances were located inside the residences at 107 Northolt Crescent, 20 Chasser Drive and at 7 Copthorne Drive on takedown day.

Analysis

Production of a Controlled Substance

[59] For reasons stated, I am satisfied that ketamine and methamphetamine were at some point produced at the 80 Colville Road location prior to takedown day on March 24, 2017. Further, I have found that there was no such production taking place at 107 Northolt Crescent but that it was being used as a storage facility to house equipment and ingredients necessary for the production of ketamine and methamphetamine. Further, given that many of the same males were seen at both locations, there is an undeniable inference that the locations were, to some extent, connected.

[60] The question becomes what was Mr. Char’s role in all of this?

[61] In order to find Mr. Char guilty of the production counts, I must be satisfied not only that Mr. Char participated in the production but also that he knew he was participating in the production of ketamine and/or methamphetamine. As previously indicated, not only is the case against Mr. Char wholly circumstantial, but it is also based entirely on non-verbal conduct of Mr. Char captured on video clips. From that perspective, this case is very much an anomaly. As such, under these circumstances, I must be satisfied that the only logical conclusion based on Mr. Char’s conduct and frequency at the locations in question is that he knew he was participating in the production of these controlled substances.

[62] After a thorough review of the evidence, I have identified Mr. Char attending at the location of 80 Colville Road on three days: March 6, 8 and 10, 2017. Further, I have identified Mr. Char attending the location of 107 Northolt Crescent on two days: March 10 and March 16, 2017.

[63] On March 6, 2017, he is seen in the parking lot of 80 Colville Road with nothing in his hands. There is an absence of evidence regarding how long he was in attendance or if he went inside the building. He is seen on screen for less than five seconds. The next time Mr. Char is seen at 80 Colville Road is on March 8, 2017 and he is captured leaving the rear bay door. I do not know how long he was inside the building. I do not know where he went inside the building and I do not know where he went after he left. Again, he had nothing in his hands and he was on screen for less than five seconds.

[64] The next time Mr. Char is captured on video is on March 10, 2017 at both 80 Colville Road and 107 Northolt Crescent. There is no denying that Mr. Char’s conduct on this day is deserving of significant examination. In the morning, Mr. Char is seen helping Mr. Sun move some buckets from a black Honda into the front porch of 107 Northolt Crescent. For reasons already stated, I am not persuaded that these buckets were the same ones found on takedown day to contain Ethyl Benzoate. They are, however, similar to other buckets with contents unknown that were found inside the garage.

[65] Later that same morning, Mr. Char is observed in attendance at 80 Colville Road. It appears on this day he spent approximately one hour inside the unit. There is an absence of evidence as to what, if anything, Mr. Char was doing inside the unit. There is an absence of evidence as to who, if anyone, was inside the unit at the same time as he was. I do know that the U-Haul truck that has been identified as going back and forth between 107 Northolt Crescent and 80 Colville Road was inside 80 Colville Road at the same time as Mr. Char. Later that same day, Mr. Char is back at 107 Northolt Crescent and was captured on video along with Mr. Sun and another male removing items from the U-Haul truck into the garage. At one point, Mr. Char removes what appears to be a white funnel from the U-Haul truck. A similar white funnel was found inside a Pampers box in the garage on takedown day.

[66] At first glance, this evidence seems quite compelling, even suspicious. However, when I consider it in conjunction with the lack of evidence as to when the clandestine lab was in operation, it becomes less so. Here is why. The last day Mr. Char was seen at 80 Colville Road was on March 10, 2017 and it was not until 14 days later that police discovered the clandestine lab for the production of ketamine and methamphetamines at that location. There is no dispute between that parties that a lab of this nature can be set up and running within a matter of days.

[67] The expert testified that there was no way to determine how long this lab had been functioning. Certainly, on March 24, 2017, it would have been self-evident to anyone who entered that it was or had been operating as clandestine lab. Unfortunately, I have no evidence as to how it appeared or what the contents were on March 10, 2017, the last day that Mr. Char was in attendance. This leaves open the very real possibility that when Mr. Char was in attendance, the lab had not been set up at all or in any noticeable way. There is a similar absence of evidence as to the set up in the garage of 107 Northolt Crescent on March 10, 2017.

[68] I am mindful that Mr. Char was also captured on video at 107 Northolt Crescent on March 16, 2017. Again, on this day, Mr. Char is seen on video taking a white bucket and placing it in the porch. For reasons already stated, I am unable to discern what, if anything, was in the bucket and where Mr. Char retrieved it from.

[69] I have also turned my mind to the copious amount of ketamine, methamphetamine and other substances that were found inside 107 Northolt Crescent on takedown day. If Mr. Char were aware of its presence, the argument that he did possess knowledge would be far more persuasive. Unfortunately, there is no evidence that Mr. Char ever entered the actual house. The video clips show him, on two occasions, inside the porch and on the one occasion accessing the garage. Moreover, even if Mr. Char did enter the house, I have no evidence that these items were in plain view and would have thereby been observed by him.

[70] I have also found that Mr. Char attended at 7 Copthorne Drive on two separate days. The first was on March 11, 2017 and the second was on March 19, 2017. Apart from exiting with a white box (contents unknown) on one occasion, there was nothing nefarious or suspicious about these brief visits. I am mindful that two grams of ketamine was found in a coffee filter in the kitchen of that residence and that a whopping 32 kilograms of 2-chlorophenyl-cyclopentyl ketone (a precursor to the production of ketamine) were found in the trunk of a Toyota Camry parked at the residence. I have no evidence that Mr. Char would have known of or even seen these items.

[71] For reasons already stated, I am not satisfied that Detective Constable McKercher observed Mr. Char at 20 Chasser Drive. As set out in the agreed statement of facts, a significant amount of ketamine, methamphetamine and other substances were located throughout the house. Even if I found that Mr. Char did drive the Subaru to this location, there is no evidence that he entered the residence or that if he had entered the residence, that the drugs were in plain view and he would therefore have seen them or been aware of them.

[72] When I consider the totality of the evidence against Mr. Char, there is no denying that his conduct and associations with people and places are highly suspicious. However, to find Mr. Char guilty of the production counts, I must be convinced beyond a reasonable doubt that the only logical inference based on the evidence or the lack of evidence, is that Mr. Char knew that he was participating in the production of controlled substances or that he was willfully blind. Because the evidence in this case is based entirely Mr. Char’s conduct, the nature of the activity must be clear and unequivocal. It is not. There are any number of reasonable and innocent explanations for his activity that I am unable to exclude. As such, I find myself left in a state of reasonable doubt.

[73] Accordingly, acquittals will be entered on counts 2, 3, and 4.

Conspiracy

[74] The offence of conspiracy is the agreement between two or more people to carry out an illegal act. In essence, all that is required is a meeting of minds. In this case, the Crown must prove that Mr. Char conspired with another to produce ketamine or methamphetamine. I am mindful that a conviction does not hinge on production being completed. Nothing needs to have happened, no physical action is required to warrant conviction. However, being present when something happens, acting in the same way as others, or even associating with others that are part of a conspiracy does not necessarily amount to knowledge of the alleged conspiracy. The analysis is contextually driven and turns on the inferences that logically flow from the facts as I have found them to be.

[75] As previously indicated, the Crown’s case of conspiracy is based entirely on non-verbal video clips of Mr. Char. The clips are brief in nature and even when combined with the rest of the evidence, I am not persuaded beyond a reasonable doubt that Mr. Char was part of a conspiracy to produce ketamine and/or methamphetamine. I am not able to exclude innocent explanations for Mr. Char’s conduct. The evidence, in my view, does not rise to the level of proof beyond a reasonable doubt.

[76] Accordingly, an acquittal will be entered on count 1.

Released: May 6, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – HO TING CHAR Defendant REASONS FOR JUDGMENT Byrne J. Released: May 6, 2020

[1] R. v. Leaney, [1989] 2 S.C.R. 393. [2] R. v. Nikolovski, [1996] 3 S.C.R. 1197. [3] See: Exhibit 1 – Agreed Statement of Fact and Exhibit 13 – photographs 14 and 18. [4] See: Exhibit 13 – photographs 2, 3 and 14. [5] See: Exhibit 13 – photographs 12 and 45.