COURT FILE NO.: 15-G5754
DATE: 2021/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUNG D. CHU
Tim Radcliffe and Andrea Levans, for the Crown
Michael Smith, for the Defendant
HEARD: September 18, 19, and 20, 2019, September 8, 9, 10, and 11, 2020, and March 24, 2021
REASONS FOR JUDGMENT
Ryan Bell J.
Overview
[1] Dung D. Chu is charged with possession of cocaine, cannabis marihuana, cannabis resin, MDMA, and crack cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), S.C. 1996, c. 19 (counts 1, 2, 5, 8, 9, 11, and 12). Mr. Chu is also charged with possession of psilocybin and cocaine, contrary to s. 4(1) of the CDSA (counts 6 and 10). Finally, Mr. Chu is charged with possession of property obtained by crime, contrary to s. 354(1) of the Criminal Code (counts 3, 4, 7, and 13).
[2] The offences are said to have taken place on October 8, 2015.
[3] The case against Mr. Chu rests entirely on circumstantial evidence. Eleven witnesses testified at trial, all of whom were members of the Ottawa Police Service. These witnesses testified about their surveillance observations and the seizures; Sergeant Trevor Dunlop provided expert opinion evidence.
[4] As is his right, Mr. Chu chose not to testify at trial. No evidence was called on his behalf.
[5] The Crown’s position is that, based on the circumstantial evidence, the only reasonable inference is Mr. Chu was a high-level drug trafficker who was supplying drug traffickers in Ottawa with marihuana and cocaine at the pound and kilogram level. The Crown submits that the totality of the circumstantial evidence is overwhelming and establishes each of the thirteen counts against Mr. Chu beyond a reasonable doubt.
[6] Mr. Chu’s position is that the officers failed to gather appropriate contextual evidence in conducting their investigation. The defence submits that the Crown has failed to establish that Mr. Chu was in possession of the prohibited substances and property obtained by crime.
The Evidence
The Surveillance Evidence
[7] On September 15, 2015, the Ottawa Police Service Drug Unit began a drug investigation into Mr. Chu and Mr. Heman Ha, at 1235 Meadowlands Drive East and 710 Malibu Terrace. Surveillance was conducted on 13 days over a three-week period. In reviewing the surveillance evidence, I have used the Crown’s categories or groupings. The categories are:
(a) Mr. Chu’s use of 1235 Meadowlands;
(b) Mr. Chu’s use of 710 Malibu;
(c) Mr. Chu’s so-called “short meets”;
(d) Mr. Chu’s longer meetings in other residences; and
(e) Mr. Chu’s allegedly dangerous driving and “heat checks.”
(a) Mr. Chu’s use of 1235 Meadowlands
[8] On several different dates during the surveillance period, Mr. Chu was observed using a key to access 1235 Meadowlands. On September 17, 2015, an unidentified individual was allowed into the residence by Mr. Chu; the individual remained inside for 15 minutes. Shortly thereafter, Mr. Chu left 1235 Meadowlands and placed a white bag under the driver’s seat of his car. On September 21, Mr. Chu and an unidentified individual, both carrying bags, entered 1235 Meadowlands for a few minutes; when they left, they were carrying different bags. On October 2, Mr. Chu was observed counting out and giving money to an unidentified male at the front door of the residence. Shortly thereafter, Mr. Ha was seen entering the residence and, minutes later, all three men left the residence, with the unidentified man holding a white envelope.
[9] 1235 Meadowlands is the address shown on Mr. Chu’s driver’s license.
(b) Mr. Chu’s use of 710 Malibu
[10] On several occasions during the surveillance period, Mr. Chu was observed using a key to access the 710 Malibu residence. On September 16, two unidentified males (each with either a gym bag or a shoulder bag) were seen to enter and then leave the residence. On September 24, Mr. Chu was observed using his key to enter 710 Malibu. Three unidentified men were seen entering the residence at different times: one carried a cardboard box (which he later carried out), one had a backpack, and one entered empty-handed but left with a handbag. On September 28, Mr. Chu was seen leaving 710 Malibu with a hockey bag over his shoulder. The next day, Mr. Chu retrieved a hockey bag from his car and entered 710 Malibu. Also on September 29, two unidentified males were seen leaving 710 Malibu at different times, the first carrying a man-purse and a brown paper grocery bag, and the second carrying a box and a duffle bag over his shoulders. On October 8, Mr. Chu entered 710 Malibu, followed by an unidentified individual. They remained inside for approximately 13 minutes.
(c) Mr. Chu’s “short meets”
[11] On September 15, Mr. Chu had a “30 second” meeting in a parking lot, following which he attended 710 Malibu. On September 29, Mr. Chu was observed having a five-minute meeting in a parking lot. On October 2, Mr. Chu had a two-minute meeting in a restaurant.
(d) Mr. Chu’s longer meetings in other residences
[12] On September 22, Mr. Chu was observed at a 13-minute meeting after putting a big satchel into the trunk of his car. On September 29, Mr. Chu had a 35-minute meeting at another residence. Mr. Chu carried a hockey bag into and out of this residence. On October 8, Mr. Chu had a 10-minute meeting at a residence, following which he placed “something” into the trunk of his car.
(e) Mr. Chu’s allegedly dangerous driving and “heat checks”
[13] On September 17, Mr. Chu was seen driving through a red light, travelling at a high rate of speed. The same day, he drove “fast” on Highways 416 and 401 and was seen “weaving” through traffic. On September 24, Mr. Chu was observed driving at a high rate of speed and cutting through traffic.
The Seizures
[14] On October 8, 2015, Mr. Chu was arrested. While conducting a search incident to arrest, the police seized items located on Mr. Chu’s person, including $1,380, two cell phones, a paper list of names and numbers, and three sets of keys. The seizures from Mr. Chu’s vehicle included $2,000 (Cdn.), held at the middle with an elastic band, a radar detector, and the ownership and insurance for the vehicle.
[15] The same day, searches were executed at and items were seized from 1235 Meadowlands and 710 Malibu. The seized items from 1235 Meadowlands included:
• two packages of cocaine (995.2 grams and 990.7 grams);
• two bags of dry cannabis marihuana (216 grams and 216.8 grams);
• two boxes of somatropin;
• 276 Viagra pills;
• $300 (Cdn.);
• $7,805 (Cdn.) in three bundles, held together with multiple rubber bands;
• a digital scale;
• a paper list of names and numbers;
• a large bag of rubber bands;
• Foodsaver vacuum seal system box of bags;
• a Zigzag box of bags;
• a large vacuum type bag containing empty packaging;
• two small hockey bags;
• empty BBQ wood chunks boxes;
• various documents, including two voting cards in the name of Kim Chieu Le and Dung Chu, respectively, with the address of 1235 Meadowlands, and a medical appointment letter addressed to Chien Le; and
• Canadian passports in the name of Dung Chu and Kiera Le.
[16] The bundles of currency, Viagra pills and the bag of elastics were seized from the master bedroom. The insurance documents were seized from the dining room. The cocaine was located in a box in another bedroom, together with a purse containing the two passports. The voter cards were located in the front door vestibule, and the two boxes of somatropin were seized from the kitchen.
[17] The items seized from 710 Malibu included:
• 5845 grams of marihuana;
• 81.6 grams of cannabis resin;
• 35 juju cannabis resin joints;
• 0.9 grams of powder cocaine;
• 461.8 grams of phenacetin;
• 999.8 grams of MDMA;
• 3.5 grams of crack cocaine;
• 6.8 grams of psilocybin;
• 5128 Cialis pills;
• 462 Viagra pills;
• packaging and bags;
• three digital scales;
• various documents, including paper lists and notebooks;
• a money counter;
• a binder labelled “inventory log”;
• bills and documentation in the name of Heman Ha;
• Foodsaver vacuum pack machine; and
• a spoon.
[18] The items were seized from the basement, three different bedrooms, and the dining room of 710 Malibu.
The Opinion Evidence
[19] Sergeant Dunlop of the Ottawa Police Service was qualified as an expert in relation to possession for the purpose of trafficking of cocaine, crack cocaine, cannabis resin, MDMA, cannabis marihuana, and possession of the proceeds of crime, including the different levels of drug trafficking operations, the packaging and preparation of drugs for sale, their value, instruments of trafficking and drug paraphernalia, and the bundling of currency. On consent, Sergeant Dunlop’s report was entered into evidence.
[20] Sergeant Dunlop testified that based on his experience, the amount of cocaine seized – approximately two kilograms and having a street value of approximately $200,000 – was not intended for personal consumption. The cocaine seized had a purity in the 90 per cent range. Sergeant Dunlop testified that phenacetin (also seized) is often mixed with cocaine as a buffing agent in order to maximize profits; he explained that a user would not add a buffing agent to the product they intended to consume. Sergeant Dunlop also testified that there were no items seized at the residence to facilitate the consumption of the controlled substances. It was also Sergeant Dunlop’s opinion, based largely on the amounts seized, that the MDMA, marihuana, cannabis resin, and juju joints were for the purpose of trafficking.
[21] The street value of the marihuana seized was between $60,000 and $96,000. Sergeant Dunlop explained that the marihuana seized from both locations was pre-packaged in common trafficking level increments. In his opinion, it would be highly unlikely that a user would purchase such a large amount of marihuana in half pound and quarter pound increments; the marihuana would rot before a heavy user could consume such a large amount.
[22] Sergeant Dunlop testified that, based on his experience, it is common for drug traffickers to have more than one type of controlled substance available for sale. Being able to provide a variety of substances allows a trafficker to enlarge their client base.
[23] In Sergeant Dunlop’s opinion, it is very common for traffickers to possess large quantities of cash. The manner in which the currency seized was secured in bundles using elastic bands is consistent with proceeds from the sale of drugs.
[24] Sergeant Dunlop also testified concerning drug paraphernalia and certain equipment seized from the residences. He explained that vacuum sealed bags are used in the drug trafficking industry to avoid detection and to have the controlled substances separated into specific amounts for easy sale. Scales are used to ensure the proper weight of the drug during packaging and, on the purchaser’s side, to verify the amount purchased. Phenacetin is a commonly used buffing agent used to increase profit margins in the sale of cocaine.
[25] In his testimony, Sergeant Dunlop identified one of the documents seized as an inventory list; in his opinion, the references on the document were to different types of marihuana, with the numbers in full and half pound increments. In his opinion, the inventory log indicated the “amounts and quantities of marihuana, and who was getting which quantity.”
Applicable Legal Principles and Statutory Framework
The Crown’s Burden of Proof
[26] Mr. Chu is presumed to be innocent of the charges against him. The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of each offence. This may be accomplished by direct evidence or may be inferred from circumstantial evidence: R. v. Pham, 2005 44671 (ON CA), at para. 18.
[27] It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the court must be sure that the offence was committed. There is no onus on Mr. Chu to prove anything, least of all his innocence. The burden remains on the Crown.
[28] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for, or prejudice against, anyone involved in the trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or the absence of evidence.
Possession
[29] Each of the charges before the court – simple possession, possession for the purpose of trafficking, and possession of property obtained by crime – requires the Crown to establish possession beyond a reasonable doubt.
[30] s. 4(3) of the Criminal Code defines possession as follows:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly:
i. has it in the actual possession or custody or another person, or
ii. has it 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; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[31] Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code.
[32] s. 4(3) of the Criminal Code creates three types of possession: personal, constructive, and joint. Each type of possession requires knowledge and control over the item beyond mere passive acquiescence.
[33] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question and, the accused must be aware of what that thing is. Both elements must co-exist with an act of control: R. v. Morelli, 2010 SCC 8, at para. 16.
[34] 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 requires that the accused: (i) has knowledge of the character of the object; (ii) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him; and (iii) intends to have the object in the particular place for his “use or benefit” or that of another person: Morelli, at para. 17.
[35] In establishing possession, the Crown must prove the elements of knowledge and control beyond a reasonable doubt.
[36] As with other offences, the Crown may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence: R. v. Bains, 2015 ONCA 677, at para. 157. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to the trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: Bains, at para. 157.
[37] The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself: Pham.
Possession for the Purpose of Trafficking
[38] Section 2 of the CDSA defines “traffic” to include selling, giving, transferring, or offering to do so. Section 5(2) prohibits anyone from possessing a controlled substance for the purpose of trafficking.
[39] In order to prove an offence of possession for the purpose of trafficking, the Crown must prove the following elements beyond a reasonable doubt: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possessed a substance included in one of the schedules of the CDSA; and (iv) that the accused intended to traffic.
[40] The intent to traffic is determined on the totality of the evidence and may be proved by drawing inferences from the evidence. As Martin J.A. observed in R. v. Oakes, 1983 1850 (ON CA):
In cases where narcotics are possessed for the purpose of trafficking, the quantity is usually such as to indicate the possession of the drug is not for personal use. Frequently…the drugs are packaged in such a way as to indicate that they are intended to be distributed. Commonly, where substantial quantities of a narcotic are found in the possession of an accused other indicia of trafficking are also found, such as packaging material, bags, scales, and records; such evidence is, of course, sometimes supplemented by surveillance, including electronic surveillance. Where the possession of a narcotic drug is of such a nature as to be indicative of trafficking, the common sense of a jury can ordinarily be relied upon to arrive at a proper conclusion.
Possession of Property Obtained by Crime
[41] The elements of the offence of possession of property obtained by crime are: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possess the property or proceeds; (iv) that the property or proceeds were obtained or derived, either directly or indirectly, as a result of the commission of an indictable offence; and (v) that the accused knew that the property or proceeds were obtained or derived, directly or indirectly, as a result of the commission of an indictable offence.
Circumstantial Evidence
[42] This case rests on circumstantial evidence. Where the Crown’s case depends on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, at para. 55; R. v. Wu, 2017 ONCA 620, at para. 9.
[43] The circumstantial evidence does not have to totally exclude other conceivable inferences; “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, at para. 22.
[44] Where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact; it does not apply “piecemeal” to individual items of evidence: Wu, at para. 15. The correct approach was summarized by the Court of Appeal for Ontario in R. v. Uhrig, 2012 ONCA 470, at para. 13, cited in Wu, at para. 15:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin [citations omitted]. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King [citations omitted].
[45] The court is entitled to consider that the accused did not testify and did not adduce evidence to support any other reasonable inference consistent with the accused’s innocence: R. v. Noble, [1997] S.C.R. 874, at para. 89; Wu, at para. 16. Silence may indicate that there is no evidence to support speculative explanations of the Crown’s evidence offered by defence counsel; if, however, there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt: Noble, at para. 89.
Issue
[46] The central issue in this case is whether Mr. Chu had knowledge and control of the prohibited substances and property and therefore, had them in his possession.
Analysis
Observations on the Evidence
[47] The Crown’s theory is that Mr. Chu kept his more valuable drugs at his residence at 1235 Meadowlands and used 710 Malibu as a “stash house.” The Crown submits that Mr. Chu had knowledge and control of the prohibited substances and relies on the surveillance evidence to provide context and to “bolster” the seizure evidence.
[48] The defence concedes that Mr. Chu resided at 1235 Meadowlands. The evidence is that Mr. Chu also attended at 710 Malibu and accessed the residence using a key.
[49] The surveillance evidence establishes that Ms. Le (whose passport was also seized from the residence) accessed 1235 Meadowlands using a key. Mr. Ha was observed carrying boxes into 710 Malibu. There is evidence that other people were present in both residences from time to time.
[50] The surveillance evidence has marked limitations. At no time were communications between Mr. Chu and other individuals overheard. At no time was Mr. Chu observed passing drugs to other persons. By way of example, Detective Cory, the lead detective, confirmed on cross-examination that he never saw what was in the bag Mr. Chu was carrying; he agreed with the defence that the plastic bag Mr. Chu was carrying “could have been so many other things other than drugs.”
[51] There was no evidence of the nature of the relationship between Mr. Chu and the individuals with whom he was observed to have met.
[52] During the period of surveillance, nothing was observed in either residence until the take down on October 8. Mr. Chu’s activities while inside are unknown. There is no evidence where Mr. Chu went or what he did once he was inside either residence. There is no evidence where the other individuals who were present from time to time in the residences went once inside or which rooms they accessed.
[53] Significantly, there is no evidence as to the state of either residence on any date other than October 8 when the search warrants were executed, and the drugs and other items were seized. On October 8, Mr. Chu was observed accessing 710 Malibu with a key; he was inside for 13 minutes. He was not observed accessing 1235 Meadowlands on October 8.
[54] Sergeant Dunlop’s testimony serves to highlight the limitations of the surveillance evidence. For example, on cross-examination, Sergeant Dunlop acknowledged that while the meetings Mr. Chu had with other individuals could offer “context”, he could not say that any one of those meetings (short or long) was in relation to drugs or a drug transaction.
[55] In regard to Mr. Chu’s driving, Sergeant Dunlop acknowledged that he did not have information to differentiate between Mr. Chu’s normal driving habits and the times when Mr. Chu was observed to be speeding and weaving in and out of traffic.
Simple Possession: Counts 6 and 10
[56] There is no physical possession in relation to count 6 (possession of psilocybin) and 10 (possession of cocaine). The Crown must prove beyond a reasonable doubt that Mr. Chu had constructive possession of the drugs. In order to constitute constructive possession, there must be knowledge which extends “beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed”: Pham, at para. 15.
[57] Knowledge will often depend on the visibility of the object and the accused’s connection with the location. Occupancy does not automatically infer knowledge of the items within the dwelling: R. v. Grey, 1996 35 (ON CA).
[58] Here, the prohibited substances were not situated in plain view of entering either property. Both residences have multiple room. Mr. Chu’s movements once inside the residences are unknown. Other individuals had access to both residences and still others visited both residences. There are other reasonable inferences available on the evidence that are consistent with Mr. Chu’s innocence and raise a reasonable doubt: that Mr. Chu did not have knowledge of the entire contents of 1235 Meadowlands and 710 Malibu, that he did not have the sole control of who accessed either location, and that Mr. Chu interacted with individuals at both locations for legitimate reasons.
[59] The Crown has failed to establish that Mr. Chu had constructive possession of the prohibited substances. I therefore find Mr. Chu not guilty on counts 6 and 10, the simple possession charges.
Possession for the Purpose of Trafficking: Counts 1, 2, 5, 8, 9, 11, and 12
[60] For similar reasons, I find the evidence is insufficient on the possession for the purpose of trafficking charges.
[61] Mr. Chu was a resident of 1235 Meadowlands and had a key to 710 Malibu. However, he was not the only resident of the first, and not the only one with a key to the latter. Other unidentified individuals visited both properties. Mr. Chu was not observed at 1235 Meadowlands on October 8, the date of the alleged offences. Mr. Chu was inside 710 Malibu for 13 minutes on October 8. His movements inside the residence on that date are unknown. The prohibited substances were not situated in plain view. Residency and access do not automatically infer knowledge of the entire contents of a residence, nor do residency and access automatically infer control. The constellation of factors around Mr. Chu’s relationship to the properties is simply insufficient to satisfy me beyond a reasonable doubt on the elements of knowledge and control.
[62] I therefore find Mr. Chu not guilty of the possession for the purpose of trafficking charges – counts 1, 2, 5, 8, 9, 11, and 12.
Possession of Property Obtained by Crime: Counts 3, 4, 7, and 13
[63] The Crown submits that the inferences drawn from the circumstantial evidence establish beyond a reasonable doubt that the money seized from 1235 Meadowlands, 710 Malibu, and on Mr. Chu’s person incident to arrest are proceeds obtained by crime.
[64] For the same reasons I have already outlined, the Crown has failed to establish knowledge and control of the proceeds seized from the residences beyond a reasonable doubt. In addition, because the simple possession and possession for the purpose of trafficking charges have not been proven, I find the Crown has failed to establish that these proceeds were derived as a result of the commission of an indictable offence.
[65] As for the money on Mr. Chu’s person when he was arrested, there was evidence elicited on cross-examination from Detective Cory that he was aware Mr. Chu worked at a restaurant. Defence counsel proffered the suggestion that the money seized from Mr. Chu may have been cash payment for his work at the restaurant. This is a reasonable explanation, one which raises a doubt as to Mr. Chu’s guilt.
Conclusion
[66] For all these reasons, I find Mr. Chu not guilty on all counts.
Ryan Bell J.
Released: May 27, 2021