SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-5524
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
SI HOAN NGUYEN and SI DUONG DAVID NGUYEN
Respondents
John Semenoff and Jonathan Thompson, for the Crown
Leo Russomanno, for Si Hoan Nguyen
Brett McGarry, for Si Duong David Nguyen
HEARD: January 11, 12, 13, 14, 15 and 18 and February 8, 9 and 10, 2021
REASONS FOR DECISION
H.J. Williams, J.
OVERVIEW
[1] Si Hoan Nguyen and Si Duong David Nguyen are charged with possession of cocaine and crack cocaine for the purpose of trafficking, multiple offences relating to two firearms and possession of proceeds of crime.
[2] Cocaine, crack cocaine, two firearms, ammunition and $195.00 in cash were among the items seized by Ottawa Police Services when they executed a search warrant at 413 Country Glen Way in Kanata the morning of December 4, 2018.
[3] Several OPS tactical and drug unit officers testified at the trial as did three expert witnesses who gave opinions about drug use and trafficking, firearms and ammunition and DNA analysis and interpretation, respectively.
[4] The defendants did not testify and called no evidence.
[5] The OPS investigation culminating in the charges against the defendants began in the fall of 2018, when an OPS detective involved in an unrelated investigation saw what he believed were two drug deals unfolding in the parking lot of a Kanata shopping mall. About two months later, the detective received a tip from a confidential informant. OPS conducted surveillance at the shopping mall and at the Country Glen Way residence. They then obtained a search warrant for the residence and a black Lexus registered to that address.
[6] The defendants brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms to exclude the evidence obtained through the search, arguing that there were no reasonable grounds for the warrant and that the OPS tactical unit’s dynamic entry into the residence was not justified. The defendants also brought a Garofoli application. On the Garofoli application, I allowed limited cross-examination of the affiant of the information to obtain the search warrant. I subsequently dismissed the Charter application.
ADMISSIONS
[7] Certain facts were admitted and incorporated into two agreed statements of facts:
Admissions in respect of the nature and weight of seized substances
[8] It was admitted that the following were seized from 413 Country Glen Way:
(a) A plastic bag containing 1.6 grams of cocaine;
(b) A plastic bag containing 32.7 grams of cocaine;
(c) 3.8 grams of crack cocaine; and
(d) 667.5 grams of an unknown powder that is not a substance within the meaning of the Controlled Drugs and Substances Act, Cannabis Act or the Prescription Drug List as defined in section A.01.010 of the Food and Drug Regulations.
[9] It was also admitted that 0.1 grams of cocaine was scraped off a toilet at 413 Country Glen Way.
Admissions in respect of firearms and ammunition
[10] It also was admitted that:
(a) Two firearms were seized from 413 Country Glen Way on December 4, 2018: (1) a Browning 9 mm Luger semi-automatic pistol, in proper firing condition, which is a “restricted firearm” as defined in the Criminal Code; and (2) a Hi-Point Firearms 380 AUTO semi-automatic pistol, in proper firing condition, which is a “prohibited firearm” as defined in the Criminal Code;[^1]
(b) On December 4, 2018, the defendants were not authorized, were not licensed and did not possess a registration certificate with regard to the two firearms;
(c) The following ammunition was seized from 413 Country Glen Way on December 4, 2018: (1) from the closet of the primary bedroom:[^2] nine rounds of 9 mm Sellier & Bellot ammunition from the magazine of the Hi-Point 380 caliber pistol and four boxes of 9 mm Sellier & Bellot ammunition; (2) from the closet of the front bedroom: [^3] 15 rounds of 9 mm Sellier & Bellot ammunition from the magazine of the Browning 9 mm pistol, one box of Sellier & Bellot 9 mm ammunition containing 50 rounds, one box of Sellier & Bellot 9 mm ammunition containing 33 rounds and 76 rounds of 9 mm ammunition found in a brown Louis Vuitton cloth bag; (3) from the table and floor of the front bedroom: five rounds of 380 hollow point ammunition and two rounds of 9 mm ammunition;
(d) The serial number on the Browning 9 mm firearm had been obliterated, in that it had been ground out; and
(e) When the two firearms were seized on December 4, 2018, they were being stored in a careless manner.
THE EVIDENCE
[11] In September 2018, while on an unrelated investigation, Det. Jason Lehman saw what he believed were two drug deals taking place in the east side of the parking lot of the Tanger Outlets shopping mall in Kanata. Det. Lehman said he saw the driver of a black Lexus enter two other vehicles for a short period of time. Det. Lehman took down the plate number of the Lexus. He later ran a search on the plate and learned the Lexus was registered to the defendant Si Hoan Nguyen at 413 Country Glen Way in Kanata. Det. Lehman estimated that 413 Country Glen Way was about half a kilometre from the Tanger Outlets.
[12] In November 2018, Det. Lehman received a tip from a confidential informant. The informant said that someone named “Si” was actively selling cocaine and marijuana and that he was meeting people in the east end of the parking lot of the Tanger Outlets. The informant said Si was a skinny Asian male who lived near the shopping mall and drove a newer model black Lexus.
[13] The OPS conducted two days of surveillance at the shopping mall and 413 Country Glen Way on November 28 and 30, 2018. Det. Lehman, Det. Wes Cory, Sgt. Seth Curtis and Det. Timothy Renwick were involved in the surveillance. They were given a Ministry of Transportation photograph of Si Hoan. Over the two days, police observed a person they identified as Si Hoan meet briefly with other people in the parking lot of the Tanger Outlets on eight occasions. They also observed the person make several round trips each day between 413 Country Glen Way and the shopping mall parking lot.
[14] On one occasion, Det. Cory saw the driver of the black Lexus pull up beside the driver’s side of a white van and hand the driver of the van a Ziploc bag. Both vehicles then immediately left the parking lot and the black Lexus returned to 413 Country Glen Way. On another occasion, Sgt. Curtis saw the black Lexus drive up to a silver Audi. Sgt. Curtis saw the Audi driver walk toward the Lexus, look all around the parking lot and then reach his closed hand into the driver’s side window of the Lexus. Sgt. Curtis then saw the Audi driver place his hand into his jeans pocket, while continuing to scan the parking lot. The two cars then left the parking lot a few minutes apart. On four other occasions, Sgt. Curtis saw the drivers of other vehicles get into the Lexus, and then return to their vehicle after about 30 seconds to two minutes.
[15] Police obtained a warrant to search 413 Country Glen Way and the black Lexus.
[16] When the OPS tactical unit arrived at the Country Glen Way residence the morning of December 4, 2018, there were two vehicles in the driveway. The tactical unit used a battering ram to try to force open the front door by striking its lock. The door moved but would not open because of a metal device affixed to the tile floor of the house just inside the doorway. Several officers described the device as a “kick plate.” After striking the door multiple times, the unit’s “breacher” Cst. Keith Cummings gave the large window in the door “a bit of a hit”. The window fell into the house and several officers entered by climbing through the door, until one of them disengaged the kick plate from the inside and opened the door. Cst. Cummings said they were on the scene at 10:24 a.m., the breach took place at 10:25 a.m. and the house was secured with two people in custody by 10:29 a.m.
[17] The two defendants were inside the house. Cst. Mark Cutts found Si Hoan on the main floor, near the living room, and arrested him. Cst. Aaron Reichert was the first to see Si Duong David Nguyen, who was on a landing on a staircase between the main level and the upper level. Both defendants were wearing only shorts or boxer shorts.
[18] There was a dog in the house, described by one officer as a German Shepherd and by another as German Shepherd-like. Si Hoan put the dog in the back yard before Cst. Cutts handcuffed Si Hoan. In a pre-search video taken by Det. Lehman,[^4] a German-Shepherd-like dog can be seen through the window of the back door of the house; the dog is on the outside and is obviously barking.
[19] Det. Danick Payment of the drug unit took custody of Si Hoan from Cst. Cutts. Det. Payment found Si Hoan’s driver’s licence in a satchel close to where Si Hoan was sitting. The address on the driver’s licence was 413 Country Glen Way. Det. Payment testified that because Si Hoan was wearing only boxer shorts, he had to get dressed to go outside. Det. Payment said he followed Si Hoan upstairs to a room which he would classify as the master bedroom of the house, where Si Hoan found and put on some clothes. Det. Payment could not say whether the clothes came from the closet of the bedroom or the floor.
[20] Once the tactical unit was satisfied it had located and arrested everyone who was inside the house, the drug unit officers took over to search the house.
[21] Most of the items seized by police were found in the primary bedroom or the front bedroom.
The search of the primary bedroom
[22] Det. Payment found a firearm in a garment bag in a walk-in closet in the primary bedroom. This was the Hi-Point 380 referred to under “Admissions”, above. Det. Payment said the firearm contained a magazine. He removed the magazine and racked the firearm to see if there was a bullet in the chamber. There was: A bullet was ejected.
[23] In the same garment bag, Det. Payment found the four boxes of ammunition, referred to under “Admissions”, above. He also found a face mask with an attached nun’s wimple and veil.
[24] Inside a black Tommy Hilfiger bag in the closet, Det. Payment found a contract for the purchase of a 2017 Lexus[^5] and an expired Canadian passport, both in Si Hoan’s name.
[25] Sgt. Curtis found a money counter in the primary bedroom. He plugged it in and concluded that it worked. Sgt. Curtis also found a black iPhone charging beside the bed. He also found a 2015 cancellation notice from Gore Mutual Insurance Company regarding a 2011 BMW. It was in Si Hoan’s name, at a different Kanata address.
The search of the front bedroom
[26] Det. Cory found a firearm in the closet of the front bedroom. The firearm was in an Air Jordan shoebox, on top of a stack of shoeboxes on the floor of the closet. The gun’s hammer was cocked back when he found it. Det. Cory took the box downstairs to ask tactical unit officers to prove the gun was safe. Cst. Forsythe removed the gun’s magazine. He exposed the gun’s chamber area and when he did so, a round was ejected.
[27] The firearm found by Det. Cory was the Browning 9 mm with the ground-out serial number referred to under “Admissions”, above. Fifteen rounds of 9 mm ammunition were found in the gun’s magazine. Det. Cory also found the ammunition in the front bedroom closet, referred to under “Admissions”, above. He found one box of 9 mm ammunition with 50 rounds and one box with 33 rounds. He also found 76 rounds of loose ammunition in a brown Louis Vuitton bag. Det. Cory also found a gun cleaning kit that consisted of tools, gun oil and wipes. The ammunition and the gun cleaning kit were all found in a fried noodles box in the closet.
[28] Det. Cory also found, in plain view, some loose ammunition on a table in the front bedroom and on the floor. This was the five rounds of 380 hollow point ammunition and two rounds of 9 mm ammunition referred to under “Admissions”, above.
[29] The 1.6 grams of cocaine, the 32.7 grams of cocaine, the 3.8 grams of crack cocaine and the 667.5 grams of unknown white powder referred to under “Admissions” were found in the front bedroom. The cocaine was on the table in two grey plastic bags. Several chunks of crack cocaine were on a paper towel on the table, in plain view. The unknown white powder was in a large freezer bag on the floor, under the table.
[30] Items seized from the table in the front bedroom included the following:
(a) A digital scale, covered in white powder, found to be functioning and in working order;
(b) A silver X-Acto knife, with white powder residue on the blade;
(c) A plastic bag containing several small plastic bags known as “dime bags” and several packages of dime bags. Det. Cory said some of these packages had 50 dime bags in them;
(d) Two open boxes of baking powder;
(e) A plastic prescription pill bottle with the name “Nguyen, Duong” on the label;
(f) A white iPhone that was functioning and in working order; and
(g) $155.00 in Canadian currency.
[31] Other items found in the front bedroom included the following:
(a) A wallet that belonged to Si Duong David. Det. Cory said the wallet was returned to Si Duong David in the cell block;
(b) A set of keys with a BMW key, a Lexus key, a Snap-on Tools key and a house key. The house key opened the front door of 413 Country Glen Way. The keys were found on the bed;
(c) A large box containing multiple plastic prescription pill bottles, some full and others empty. The name on the label of the bottles was “Nguyen, Duong.” Det. Cory said there were probably 30 or 40 bottles in the box, although he did not know the precise number. He said the pill bottles were seized and later returned to Si Duong David;[^6] and
(d) A TD Canada Trust “info sheet” in the name of Si Duong Nguyen describing how to set up direct deposits and pre-authorized debits. The document included an account number. The document was found on the bed.
Items found elsewhere in the house
[32] Det. Payment found white powdery residue on the toilet of a bathroom on the second floor of the house. The bathroom in which the residue was found was off the same hallway as the primary bedroom, the front bedroom and a third bedroom; it was not the en suite bathroom in the primary bedroom. Det. Payment scraped the residue off the toilet and sent it for analysis. It is admitted that it was 0.1 grams of cocaine. Det. Payment said there was an open, black Louis Vuitton bag in the middle of the bathroom.
[33] Det. Lehman found two $20.00 bills (Canadian) on the main floor of the house but could not recall precisely where he found them.
[34] Det. Lehman said he also found two documents on the main floor of the house, one in Si Hoan’s name and one in Si Duong David’s name, both with the 413 Country Glen Way address. I have already noted (at footnote 5) that Det. Lehman believed the document in Si Hoan’s name was a Tony Graham contract relating to a vehicle purchase. A Tony Graham contact in Si Hoan’s name was in evidence but it was found in the closet of the primary bedroom, and it did not have the Country Glen Way address on it. There were no documents in evidence bearing both Si Duong David’s name and the Country Glen Way address.
THE ISSUES
[35] The issues are whether the defendants were in possession of the cocaine, the crack cocaine, the firearms and the $195.00. If I find possession of the cocaine or the crack cocaine, I must also decide whether the possession was for the purpose of trafficking. If I find possession of either of the firearms, some of the admissions will apply to make out the firearm-related charges. If I find possession of the $195.00, I must also decide whether the $195.00 was proceeds of crime.
THE LAW
[36] The defendants are, of course, presumed innocent, unless the Crown proves guilt beyond a reasonable doubt.
Proof beyond a reasonable doubt
[37] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Believing that an accused is probably guilty or likely guilty is not sufficient. In those circumstances, the benefit of the doubt must be given to the accused person, because the Crown has failed to prove guilt beyond a reasonable doubt. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. (R. v. Lifchus, [1997] 3 SCR 320, at para. 39.)
Possession
[38] Section 4(3) of the Criminal Code defines possession and provides that, for the purposes of the Code;
(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 of 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 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.[^7]
[39] The Court of Appeal considered constructive and joint possession in R. v. Pham, (2005), 77 O.R. (3d) 401; 2005 44671 (ON CA):
[14] Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in s. 4(3)(a);
(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and
(iii) joint possession as defined in s. 4(3)(b).
[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).
[16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).
[17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. 6 (QL):
There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge.
[40] The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge.
[18] The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p. 448 C.C.C., [page407] Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug".
Circumstantial evidence
[41] In R. v. Lights, 2020 ONCA 128, Watt J. A. reviewed the law relating to circumstantial evidence:
[36] When 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.
[37] To 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] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 1941 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
[38] Inferences 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 13 (SCC), [1972] S.C.R. 2, at p. 8.
[39] When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.
ANALYSIS
ISSUE ONE: Has the Crown proven, beyond a reasonable doubt, that either or both of the defendants were in possession of the drugs in the front bedroom?
[42] I will consider this issue first in respect of Si Duong David and then in respect of Si Hoan.
Si Duong David
[43] The Crown argued that Si Duong David had cocaine in his personal possession and both cocaine and crack cocaine in his constructive possession, either on his own or jointly with Si Hoan.
Personal possession of cocaine (Si Duong David)
[44] The Crown argued that Si Duong David had cocaine in his personal possession under s. 4(3)(a) of the Criminal Code. The Crown argued that the only reasonable inference from the evidence is that, as soon as he heard the police at the door on December 4, 2018, Si Duong David flushed cocaine down the toilet in order to destroy evidence.
[45] When police entered the house, they found Si Duong David on a landing between the main and second floors of the house. Cocaine residue was found on the toilet bowl of the second-floor bathroom. An open, black or dark-coloured man purse or satchel was found on the floor of the bathroom where the cocaine residue was found.
[46] The Crown argued the only reasonable inference to be drawn from the cocaine residue on the toilet bowl and Si Duong David’s location in the house, was that Si Duong David put the cocaine in the toilet and had the cocaine in his hands and therefore in his personal possession.
[47] It is difficult to imagine a scenario in which cocaine would end up on the rim of a dirty toilet bowl unless someone intended to flush it down the toilet to make it disappear. The empty satchel on the bathroom floor invites an inference that there had been more cocaine where the residue on the toilet came from. I find that the only reasonable inference from the evidence is that, as soon as it became apparent that police were at the door of 413 Country Glen Way, someone flushed cocaine down the toilet.
[48] However, I am unable to conclude that the only reasonable inference from the evidence is that it was Si Duong David who put the cocaine in the toilet. When police entered the house, they found Si Hoan and Si Duong David almost immediately. Si Hoan was on the main floor near the living room; Cst. Cutts said Si Hoan was behind an open door leading to the basement. Si Duong David was on the landing between the main and second floors of the house. The pre-search video taken by Det. Lehman (Ex. 2A) shows that the door leading to the basement is at the base of the staircase where Si Duong David was found. Only six or seven stairs separated the locations where the two defendants were found. Although Si Duong David was the closer of the two to the bathroom where the cocaine residue was found, it is plausible that both defendants were upstairs when the police arrived, that Si Hoan flushed the cocaine down the toilet while Cst. Cummings was repeatedly ramming the front door, that both defendants then headed to the main floor and Si Hoan got there first.
[49] For these reasons, I find the Crown has failed to prove that Si Duong David was in personal possession of cocaine.
Constructive possession of cocaine and crack cocaine (Si Duong David)
[50] The Crown also argued that Si Duong David had the cocaine and the crack cocaine in the front bedroom in his constructive possession under s. 4(3)(a)(ii) of the Criminal Code either on his own or jointly, with Si Hoan, under s. 4(3)(b) of the Code.
[51] Constructive possession of an item is complete when an accused: i. has knowledge of the character of the thing; ii. knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and iii. intends to have the thing in the place for the use or benefit of the accused or of another person. (Lights, at para. 47.)
[52] Because the evidence the Crown relies upon in respect of constructive possession is circumstantial, the Crown is required to prove each essential element was the only reasonable inference available on the evidence as a whole. (Lights, at para. 102.)
[53] Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. (Lights, at para. 38.)
[54] I must consider the evidence as a whole. The following evidence and findings in particular inform my consideration of this issue:
(a) Si Duong David was at 413 Country Glen Way when police entered the house around 10:25 a.m. on December 4, 2018. Police had the house under surveillance as of 8:10 a.m. They saw no one enter or leave. There were two cars in the driveway;
(b) Si Duong David was on a landing about halfway between the main and second floors of the house when he was first seen by the police. He was wearing only boxer shorts;
(c) There were three bedrooms on the second floor of the house, the primary bedroom, the front bedroom and a third bedroom. In the police pre-search video of the house (Ex. 2A), the primary bedroom and the front bedroom both had the appearance of being occupied or “lived in.” There was a pillow and either sheets or a duvet on the bed in each of these rooms. There were several bottles of water in each room. There were bottles of other beverages beside the bed in the primary bedroom and an empty beer bottle in the front bedroom. An iPhone was found in each of these rooms. In contrast, the third bedroom appeared as though it was being used for storage. There was a folding bed in the third bedroom, folded in half and resting on its side. The floor of the room was strewn with items, including a pillow and what appeared to be bed linens, clothes, shoes, shoeboxes, rolls of paper towels or toilet paper, an overturned laundry basket and a large green plastic bag that appeared to be full. There were clothes and boxes in the closet. What appeared to be a vacuum cleaner can be seen in a back corner of the room;
(d) The en suite bathroom in the primary bedroom and the main bathroom off the second-floor hallway both appeared to be used. The toilet bowls in both bathrooms were stained. There was toilet paper in both bathrooms. There was a bathroom scale, a hairdryer, a razor, toiletries and towels in the en suite bathroom and a hair dryer, a hairbrush and a plugged-in electric toothbrush in the main bathroom;
(e) The cocaine and the crack cocaine were on a table in the front bedroom. The cocaine was in two grey plastic bags. The crack cocaine was in plain view, on a paper towel. A scale covered in white power, an X-Acto knife, packages of dime bags, some cash and some loose ammunition were also on the table, also in plain view. Some more loose ammunition and a large freezer bag of white powder were on the floor;
(f) A prescription pill bottle in the name of “Nguyen, Duong” was on the same table as the cocaine and the crack cocaine;
(g) Multiple prescription pill bottles, also in the name of “Nguyen, Duong”, some full and some empty, were in a box in the front bedroom, along with several packages of dime bags;
(h) A wallet belonging to Si Duong David was in the front bedroom;
(i) A TD Canada Trust document in the name of Si Duong Nguyen was on the bed in the front bedroom;
(j) Keys on the bed in the front bedroom included a key that opened the front door of 413 Country Glen Way, a Lexus key and a BMW key;
(k) There was evidence linking Si Hoan to the primary bedroom. An expired passport and a contract for a Lexus, both in Si Hoan’s name, were found in a Tommy Hilfiger bag in the closet of the primary bedroom. Si Hoan went to the primary bedroom to find clothes to put on before being taken to the police station; and
(l) When police arrived at 413 Country Glen Way the morning of December 4, 2018, the two defendants were inside, and a kick plate prevented the police from forcing the front door open.
[55] Si Duong David’s counsel argued that Si Duong David was, at best, minimally linked to 413 Country Glen Way and the black Lexus. He argued that it was a reasonable inference from the evidence that Si Duong David was no more than an overnight guest at the house. He argued that it would not be unusual for someone staying at someone else’s house to have a key to the house and to bring prescription medication with him.
[56] I have already found there are no documents in evidence bearing both Si Duong David’s name and the 413 Country Glen Way address. Although the police saw the black Lexus pull into the driveway of 413 Country Glen Way behind a black BMW during their surveillance on November 30, 2018, their investigation did not lead them to conclude that anyone other than Si Hoan lived at the address. There were clothes in the front bedroom and in its closet but no evidence that the clothes belonged to Si Duong David. A BMW key was found in the front bedroom but there was no evidence about who owned the BMW.
[57] Nonetheless, I am satisfied that the only reasonable inference from the evidence is that Si Duong David occupied the front bedroom at 413 Country Glen Way at the time the police executed the search warrant on December 4, 2018. No one was seen entering or leaving the house after 8:10 a.m. that morning; Si Duong David was wearing only boxer shorts when he was found on a landing between the main and second floors of the house; items in his name, including a wallet and numerous prescription medication bottles in the name “Nguyen, Duong”[^8] were found in the front bedroom. Further, Si Duong David and Si Hoan were both inside the house when the warrant was executed, only two of the three bedrooms in the house appeared to be occupied and there was evidence linking Si Hoan to the other occupied bedroom, the primary bedroom.
[58] I am also satisfied that the only reasonable inference from the evidence is that Si Duong David’s status at 413 Country Glen Way was something more than a mere overnight guest. A key to the house was found on the bed in the bedroom he occupied. Further and more striking is that an overnight guest would not bring with him at least 14[^9] bottles of prescription medication, including five bottles of the same medication, gabapentin, which, according to the instructions visible on the bottles, required one capsule to be taken twice daily. I find that it would be reasonable to infer that 413 County Glen Way was not Si Duong David’s permanent or his only address. However, neither an inference that Si Duong David was not a full-time resident of 413 Country Glen Way, nor an inference that he may also have resided elsewhere, is incompatible with the inferences I have made.
[59] When things are found in a premises or place occupied by a defendant, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession. (Lights, at para. 50.) However, the court may draw appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug. (Pham, at para. 18, citing R. v. Chambers, [1085] O. J. No. 143, 1985 169 (ON CA), 20 C.C.C. (3d) 440 (C.A.)) In R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), [1988] OJ. No. 1877 (C.A.), for example, the Court of Appeal agreed that where narcotics are found in plain view in a common area of a residence, a scale is found in a bedroom apparently occupied by the accused and the accused apparently occupies the residence, the requisite knowledge may be inferred even without any direct knowledge.
[60] In this case, the crack cocaine was in plain view on a paper towel on a table in the front bedroom. The cocaine was on the table, inside grey plastic bags. A scale covered in white powder, multiple dime bags and some ammunition were on the table, in plain view. One of the prescription pill bottles in Si Duong David’s name was on the table. I am satisfied that the only reasonable inference from the evidence is that Si Duong David had knowledge of the cocaine and the crack cocaine.
[61] I am also satisfied that the only reasonable inference from the evidence is that Si Duong David had a measure of control over the cocaine and the crack cocaine. It is highly unlikely that Si Duong David would have been occupying the front bedroom, as I have found he was, if he did not have a measure of control or a right to control the drugs in the room. If someone other than Si Duong David had exclusive control over the drugs, that person would not have invited Si Duong David to spend the night in the room with the drugs and simply assume or hope that they would still be there, in the same quantity and condition, in the morning. Further, the crack cocaine in the room was on a paper towel on the table, exposed to the air and at risk of being knocked onto the floor if an occupant of the room was not careful. The crack cocaine was not being stored; it was either being broken into smaller pieces or weighed or packaged or consumed or something else. Si Duong David was occupying and had control over this room where the cocaine and crack cocaine were located.
[62] For these reasons, I have concluded that the only reasonable inference from the evidence, taken as a whole, is that Si Duong David knew about the cocaine and the crack cocaine in the front bedroom, that he knowingly kept the drugs there and that he intended to have the drugs there for his use or benefit.
[63] I am, therefore, satisfied that the Crown has proven, beyond a reasonable doubt, that Si Duong David had both knowledge and a measure of control, and therefore constructive possession, of the cocaine and the crack cocaine in the front bedroom.
Si Hoan
Constructive possession of cocaine and crack cocaine, either on his own or jointly (Si Hoan)
[64] The Crown argues that Si Hoan had the drugs in the front bedroom in his constructive possession under s. 4(3)(a)(ii) of the Criminal Code or that he was in joint possession of the drugs with Si Duong David, under s. 4(3)(b) of the Code.
[65] In order to prove constructive or joint possession of the drugs, the Crown is not required to prove knowledge of cocaine and crack cocaine, specifically; the Crown is only required to prove knowledge of illegal drugs. (R. v. Aiello, 1978 62 (ON CA); R. v. Johnson, 2017 ONSC 1130, at paras. 17 – 21.)
The evidence
[66] In addition to the evidence and findings to which I have already referred, the following evidence and findings inform my consideration of this issue:
(a) The surveillance evidence;
(b) The address on Si Hoan’s driver’s licence was 413 Country Glen Way;
(c) The black Lexus had plates registered to Si Hoan at 413 Country Glen Way;
(d) The black Lexus was parked at 413 Country Glen Way when the police executed the search warrant on December 4, 2018;
(e) An expired passport with Si Hoan’s name on it was found in a bag in the closet of the primary bedroom;
(f) A contract for the purchase of a Lexus dated August 2017 was found in the same bag;
(g) A Gore Mutual Insurance Company cancellation notice for an automobile policy and a cheque stub for $6.00 dated November 2015 in Si Hoan’s name was found in the primary bedroom as well as Gore Mutual “pink slips” for a 2011 BMW;
(h) Si Hoan went to the primary bedroom to find clothes to put on before police removed him from the residence;
(i) A loaded Hi-Point 380 firearm was found in a garment bag in the closet of the primary bedroom and ammunition was found in the same bag;
(j) A money counter was found in the primary bedroom, on the floor next to the bed;
(k) The engaged kick plate at the front door of 413 Country Glen Way; and
(l) Si Hoan put the German Shepherd-like dog in the backyard of 413 Country Glen Way when he was asked to do so by police.
The surveillance evidence: Was Si Hoan identified by police?
[67] I will turn first to the surveillance evidence. The OPS had received a tip from a confidential informant that a “skinny Asian male” named Si who drives a black Lexus and lives close to the Tanger Outlets shopping mall in Kanata was actively selling cocaine and marijuana. I have already noted that the OPS conducted the two days of surveillance at 413 County Glen Way and the nearby shopping mall on November 28 and 30, 2018. Det. Lehman, Det. Cory, Sgt. Curtis and Det. Renwick were involved in the surveillance.
[68] The officers were all given or shown a Ministry of Transportation photograph of Si Hoan. Over the two days of surveillance, they observed a person they identified as Si Hoan, driving a black Lexus, meet briefly with other people in the parking lot of the shopping mall on eight occasions. They also observed the person make several round trips in the black Lexus each day between 413 Country Glen Way and the shopping mall’s parking lot.
[69] On one occasion, Det. Cory saw the driver of the black Lexus pull up beside the driver’s side of a white van and hand the driver of the van a Ziploc bag. Both vehicles then immediately left the parking lot and the black Lexus returned to 413 Country Glen Way. On another occasion, Sgt. Curtis saw the black Lexus drive up to a silver Audi. Sgt. Curtis saw the Audi driver walk toward the Lexus, look all around the parking lot and then reach his closed hand into the driver’s side window of the Lexus. Sgt. Curtis then saw the Audi driver place his hand into his jeans pocket, while continuing to scan the parking lot. The two cars then left the parking lot a few minutes apart. On four other occasions, Sgt. Curtis saw the drivers of other vehicles get into the black Lexus, and then return to their vehicle after 30 seconds to two minutes.
[70] In the information to obtain the search warrant, Det. Renwick said that, based on his experience in drug investigations, he believed the eight short meetings to be drug transactions.
[71] In dismissing the defendants’ Charter application, I concluded that the informant’s tip had been corroborated by the surveillance evidence and that the ITO disclosed sufficient credible and reliable evidence to justify the search warrant.
[72] If I can be satisfied, beyond a reasonable doubt, that Si Hoan was involved in the eight meetings the police observed, and that the meetings were drug transactions, it will not require a huge leap also to be satisfied that the only reasonable inference from the evidence is that Si Hoan had knowledge and control of the drugs in the front bedroom of 413 Country Glen Way on December 4, 2018; they were the only drugs found in the house.
[73] The four officers involved in the surveillance in this case had one photograph of Si Hoan; an MTO photo. Si Hoan was the target of their investigation. The officers did not suspect that more than one person was living at 413 Country Glen Way. They expected to see a “skinny Asian male” driving a black Lexus and they expected that person to be Si Hoan. Based on the evidence at trial, Si Duong David fits the same description as Si Hoan: Det. Lehman described seeing Si Duong David for the first time the morning of December 4, 2018, saying he was an Asian male with a “slender build” and dark hair. There was evidence that Si Hoan was 5’10” tall and no evidence of how tall Si Duong David was. Having no evidence of an obvious discrepancy in the height of the two defendants, it strikes me as entirely conceivable that one defendant could be mistaken for the other, particularly by observers who were expecting to see one of them and did not know of the existence of the other and even more so when the observers’ vantage points were from a distance. Although the officers who were observing 413 Country Glen Way during the surveillance saw the target getting in and out of the Lexus, the officers at the shopping mall only saw the target while he was inside the car. No photographs or videos of the target were taken during the surveillance.
[74] For these reasons, I cannot be satisfied beyond a reasonable doubt that the officers involved in the surveillance on November 28 and 30, 2018 actually saw Si Hoan, and not Si Duong David, driving the black Lexus between 413 Country Glen Way and the shopping mall. I wish to make clear that I am not questioning the integrity of the four officers involved in the surveillance, all of whom placed Si Hoan behind the wheel of the Lexus. As Si Hoan’s counsel argued, one of the risks frequently associated with identification evidence is the honest but mistaken witness. In unusual circumstances such as these, I cannot be sure enough that even multiple honest witnesses could not be mistaken.
Did Si Hoan live at 413 Country Glen Way and occupy the primary bedroom?
[75] Although I am not satisfied that Si Hoan was identified during the police surveillance, I am satisfied, beyond a reasonable doubt, that Si Hoan lived at 413 Country Glen Way and that he occupied the primary bedroom. This is for the following reasons: In addition to the driver’s licence and vehicle registration both in Si Hoan’s name and bearing the 413 Country Glen Way address, Si Hoan, like Si Duong David, was at the house the morning of December 4, 2018, wearing only boxer shorts. Police had been watching the house since about 8:10 a.m. and no one arrived or left. The kick plate at the front door was engaged when police arrived. A passport, a contract relating to the purchase of a black (“obsidian”) Lexus and Gore Mutual insurance documents, all in Si Hoan’s name, were found in the primary bedroom. “Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense.” (R. v. Emes, 2001 3973 (ON CA).) As I have previously noted, Si Hoan went to the primary bedroom to get his clothes following his arrest. The primary bedroom contained personal items that suggested that it was someone’s bedroom: there were bottles of water and other beverages by the bed; an iPhone was found in the room; there were large stuffed animals in the room as well as two devices that appeared to be either portable heaters or air conditioners; there was also a framed photograph or drawing of a dog resembling the German Shepherd-like dog at the house. The primary bedroom appeared to be larger than either the front bedroom or the third bedroom and had an en suite bathroom; it appeared to be the preferred bedroom of the three. Identification and items belonging to Si Duong David were found in the front bedroom of the house. For these reasons, I have concluded that there is no other reasonable inference from the evidence other than that Si Hoan lived at 413 Country Glen Way and that the primary bedroom was Si Hoan’s bedroom.
Did Si Hoan have knowledge and control of the loaded Hi-Point 380 firearm in the closet of the primary bedroom?
[76] I turn now to whether Si Hoan was in possession of the loaded Hi-Point 380 firearm in the closet of the primary bedroom.
[77] I have already noted that this firearm was found in a garment bag in the closet of the primary bedroom and that a loaded Browning 9 mm was found in a shoebox in the closet of the front bedroom.
[78] I am satisfied that it is “a” reasonable inference from the evidence that Si Hoan had both knowledge and control of the Hi-Point 380 firearm and the associated ammunition. I have found that Si Hoan lived at 413 Country Glen Way and that the primary bedroom was occupied by him. Documents belonging to him were found in the closet where the firearm and the ammunition were found. As the occupant of the primary bedroom, Si Hoan could consent to objects being in the bedroom or refuse to have them there.
[79] But is the only reasonable inference from the evidence that Si Hoan had both knowledge and control of the Hi-Point 380 firearm? I must consider whether it is a reasonable inference that Si Duong David, or perhaps someone else, hid or was storing the loaded Hi-Point 380 in that closet, and that Si Hoan either did not know about it or knew about it but had no control over it.
[80] I have considered the following: Si Hoan occupied the primary bedroom. The Hi-Point 380 was loaded—it had nine rounds of ammunition in its magazine and one in its chamber. The Hi-Point 380 was not safely stored in a locked box or compartment. The gun was in a garment bag that had a zipper. It was accessible, loaded and ready to be fired. There were four boxes of compatible ammunition in the same garment bag, suggesting that whoever put the loaded gun in the garment bag wanted it handy and was also contemplating an on-going relationship with it. The engaged kick plate inside the front door of 413 Country Glen Way suggested the occupants believed someone might want to enter the house without waiting to be let in. Si Hoan and Si Duong David were the only people inside the house, each occupying a different bedroom. Cocaine, crack cocaine and a Browning 9 mm were in the front bedroom and a money counter was in the primary bedroom.
[81] On all of the evidence, I conclude that it is not reasonable to infer that Si Duong David or someone else (that is to say, someone other than Si Hoan) put the loaded Hi-Point 380 in the closet of the primary bedroom without informing Si Hoan, who occupied the primary bedroom. I also conclude that it is not reasonable to infer that Si Hoan, who occupied the primary bedroom, did not have a measure of control over this loaded weapon. The Hi-Point 380 was loaded and ready to be fired; it is not reasonable to infer from the evidence that this loaded handgun would have been of use to anyone other than the occupant of the primary bedroom, Si Hoan.
[82] I am satisfied that the only reasonable inference from the evidence is that Si Hoan had knowledge of the loaded Hi-Point 380 firearm, that he knowingly put or kept the Hi-Point 380 in the closet of the primary bedroom and that he intended to have it there for his use or benefit.
[83] I am, therefore, satisfied that the Crown has proven, beyond a reasonable doubt, that Si Hoan had both knowledge and a measure of control, and therefore constructive possession, of the loaded Hi-Point 380 firearm in the primary bedroom closet.
Did Si Hoan have knowledge and control of the drugs in the front bedroom?
[84] I will now turn to whether Si Hoan was in constructive or joint possession of the drugs in the front bedroom.
[85] The Crown argued that both Si Duong David and Si Hoan had unfettered access to the front bedroom at 413 Country Glen Way. Although I have found that Si Hoan lived at the house and occupied its primary bedroom, it does not necessarily follow that he had unfettered access to the front bedroom. It is possible, for example, that Si Duong David kept the door of the front bedroom closed and possibly also locked.[^10] I must consider whether it is a reasonable inference from the evidence that Si Hoan had no knowledge of the drugs or that he had knowledge but no control over them.
[86] I have already found that Si Hoan was in possession of the loaded Hi-Point 380 firearm in the closet of the primary bedroom. Si Hoan also kept a money counter in the room. Det. Brian Emery, who was called by the Crown to give expert opinions about drug use and trafficking, and to whose evidence I will refer in greater detail below, said a money counter can be a tool of the drug trade; Det. Emery said drug trafficking is a cash business. There were, however, other items in the house that could have been sold for cash. Det. Lehman said there were many “nice” car and bike (I understood this to mean “motorcycle”) parts in the house as well as helmets. There were also numerous collectibles, which Det. Lehman described as “bobbleheads”, in the basement of the house. Det. Lehman said these items were in boxes that measured about 4 inches by 4 inches; he said they were about the same size as a box that might contain a Christmas ornament.
[87] The presence of the money counter in the primary bedroom, without more, does not render unreasonable an inference that Si Hoan knew nothing about the drugs in the front bedroom. Si Hoan could have been running a business, unrelated to drugs, selling bobbleheads and automotive parts and accessories, and could have been selling enough of these items for cash to justify a money counter. However, when police arrived at 413 Country Glen Way the morning of December 4, 2018, they found both Si Hoan and Si Duong David on the other side of a kick plate that prevented the police from forcing the front door open. As I have already observed, the only reasonable inference from the kick plate is that the occupants of the house wanted to thwart or delay others from entering without permission and believed there was reason to worry this could happen. Si Hoan also had a loaded gun in the closet of his bedroom. On its own, the money counter by the bed could be explained by a bobblehead and automotive parts business, but I find that the barricaded front door and the loaded gun in the closet cannot. Si Hoan lived at 413 Country Glen Way and occupied the primary bedroom; on the evidence, if there was a principal resident of the house, it was Si Hoan. I am satisfied that there is no reasonable inference from the evidence as a whole other than that Si Hoan had knowledge of the drugs in the front bedroom, that he consented to the drugs being kept in the front bedroom, that he had a measure of control over the drugs in the front bedroom and that he intended that they be kept there for his use or benefit or that of Si Duong David.
[88] I am, therefore, satisfied that the Crown has proven, beyond a reasonable doubt, that Si Hoan was in constructive possession of the drugs in the front bedroom.
Joint possession (drugs)
[89] Based on the evidence as a whole, I am also satisfied that the Crown has proven, beyond a reasonable doubt, the elements of knowledge, consent and control, and that Si Duong David and Si Hoan were in joint possession of the drugs in the front bedroom under s. 4(3)(b) of the Criminal Code.
ISSUE TWO: Has the Crown proven, beyond a reasonable doubt, that either or both of the defendants were in possession of the two loaded firearms?
[90] I have already found, in the context of my consideration of whether Si Hoan was in possession of the drugs in the front bedroom, that the Crown has proven that he was in possession of the Hi-Point 380 firearm in the closet of the primary bedroom.
[91] The Browning 9 mm firearm was found in a shoebox in the closet of the front bedroom. It was loaded. Multiple rounds of 9 mm ammunition were also found in the closet, in a separate box. Two rounds of 9 mm ammunition and five rounds of 380 “hollow point” ammunition were found on the table and floor of the front bedroom.
[92] Det. Joseph Meehan, who was qualified as an expert in the identification and classification of firearms and ammunition, testified that the 9 mm ammunition found in the front bedroom was compatible only with the Browning 9 mm. Det. Meehan said the five rounds of 380 ammunition found in the front bedroom could have been used in the Browning 9 mm but were more suited to the Hi-Point 380 in the primary bedroom. Det. Meehan explained that the 380 ammunition could be loaded into the Browning 9 mm and would fit and function but not necessarily as intended. He said there could be issues, such as stoppages, and that using the 380 ammunition in a gun such as the Browning 9 mm was not recommended.
[93] A DNA expert, Heather Shacker, testified about DNA from a swab of the Browning 9 mm. Ms. Shacker testified that Si Duong David could not be excluded as the source of DNA on the swab. The Crown conceded that, considering evidence at trial that a number of police officers had touched Si Duong David on December 4, 2018, and that some of those officers had also handled the gun, the court could not reasonably conclude that there was no possibility other than that Si Duong David had handled the gun.
[94] I have already reviewed the evidence that connected Si Duong David to the front bedroom, in particular the prescription pill bottles in his name, the wallet and the banking document. I have already noted that one of the prescription pill bottles was on the same table as the crack cocaine, which was in plain view, the bags of cocaine and the scale. Five rounds of loose ammunition were on the table adjacent to and just centimetres away from the prescription pill bottle.
[95] The Browning 9 mm was not in plain view. It was in the closet, in the top box of a stack of boxes.
[96] I am satisfied that it is a reasonable inference from the evidence that Si Duong David was aware of the loaded Browning 9 mm in the closet of the front bedroom. It is reasonable to infer that Si Duong David knew about the ammunition, which was in plain view beside a pill bottle in his name, and that if he knew about the ammunition, he knew about the loaded gun.
[97] I must, however, consider whether there are reasonable inferences from the evidence other than that Si Duong David knew, specifically, that there was a loaded Browning 9 mm in the closet of the front bedroom. Si Duong David’s counsel argued that the defendants are not strangers, they are brothers, and that a brother may not give another brother the third degree, even if something seems suspicious, in other words, that Si Duong David may have seen the ammunition but may not have asked Si Hoan what it was all about. Si Duong David’s counsel also argued that someone else, a third person, could have had access to the house. He mentioned the bed, albeit a folded one, in the third bedroom and that there was no evidence about who owned the BMW seen in the driveway of 413 Country Glen Way. I must, therefore, consider whether it is reasonable to infer from the evidence that Si Hoan or someone else placed the loaded Browning 9 mm in the closet of the front bedroom without telling Si Duong David that it was there.
[98] Given that Si Hoan lived at 413 Country Glen Way, and the drugs and associated paraphernalia were in the front bedroom, it would not be unreasonable to infer that Si Hoan put the loaded Browning 9 mm in the closet of the front bedroom. But is it reasonable to infer that Si Hoan would have done this without telling Si Duong David about it? For the following reasons, I have concluded that the answer to this question is no. Si Duong David was staying in the front bedroom. If Si Hoan had put the Browning 9 mm in the front bedroom closet and had wanted to hide it from Si Duong David for some reason, Si Hoan also would have hidden the loose ammunition that was in plain view in the room. If Si Hoan had put the Browning 9 mm in the front closet and was not hiding it from Si Duong David, it is highly unlikely that he would not have told Si Duong David about it. The Browning 9 mm was loaded, with ammunition in its magazine and a round in its chamber. Det. Cory said its hammer was also cocked back and that, although he said was no firearms expert, it looked to him like it was ready to fire. When Det. Cory found the gun, he immediately took it to tactical officers to prove it was safe. I infer from this evidence that, handled incorrectly, the Browning 9 mm would have posed a danger both to an unsuspecting person who may have touched it and consequently also to others in the same vicinity. I do not consider it to be a reasonable inference from the evidence that Si Hoan would have placed a loaded gun, with its hammer cocked back, in the closet of the bedroom where Si Duong David either lived or at least spent time, without ensuring that Si Duong David knew about it and knew that it was loaded.[^11] It would have been dangerous for Si Hoan not to have told Si Duong David about the loaded gun, both in terms of physical danger and because of the risk of exposure should a neighbour or passerby hear a gun being discharged.
[99] I have also considered whether it is reasonable to infer that Si Hoan placed the loaded Browning 9 mm in the closet of the front bedroom and did not want Si Duong David to know about it, but forgot or failed to hide the loose ammunition. This is a possibility, but one that would mean that Si Duong David would have seen the ammunition, which was in plain view. To infer that Si Duong David did not have knowledge of the gun in the closet in these circumstances would require an inference either that Si Duong David saw the ammunition and did not ask Si Hoan about it or that he asked Si Hoan about it and Si Hoan lied to him. Particularly given that there were drugs and drug paraphernalia in the front bedroom, and a kick plate at the front door to prevent a forced entry, which both defendants must have been aware of, I conclude that these are not inferences I can reasonably make on the whole of the evidence.
[100] I also do not consider it to be a reasonable inference from the evidence that anyone other than Si Hoan or Si Duong David put the Browning 9 mm in the closet of the front bedroom. Si Hoan and Si Duong David were the only people in the house when the police arrived on December 4, 2018. There was no evidence of anyone else having been in the house. When police arrived, there were two cars in the driveway, two people in the house, two guns in the house, one in each of the two occupied bedrooms, and drugs in the house. While it is possible that other people had been inside the house, the two known occupants of the house would have been very careful about who was permitted to enter and what areas of the house any visitor was allowed to see. I consider an inference that someone other than Si Hoan or Si Duong David put the loaded Browning 9 mm in the closet of a bedroom that contained drugs and ammunition in plain view, and that Si Duong David did not know about it, would qualify as an inference from the “irrational” or “fanciful” category.
[101] For these reasons, I am satisfied that the only reasonable inference from the evidence is that Si Duong David had knowledge of the loaded Browning 9 mm in the closet.
[102] I am also satisfied that the only reasonable inference from the evidence is that Si Duong David also had a measure of control over the loaded Browning 9 mm. To conclude otherwise, I would be required to draw an inference that Si Duong David knew there was a loaded gun in the closet of the bedroom he occupied, a bedroom which contained illegal drugs, but Si Duong David had no say in whether the loaded gun remained in the closet and was not permitted to touch it. I do not consider these possibilities to be reasonable.
[103] The kick plate on the front door of 413 Country Glen Way is also relevant to my consideration of this issue. The kick plate was engaged the morning the police arrived, with both defendants inside the house. The kick plate was clearly visible in the pre-search video of the house taken by Det. Lehman (Ex. 2A) and is a noticeable feature of the front foyer of the house; a person would not enter the house through the front door and not notice it. Both Si Hoan and Si Duong David would have known about the kick plate and its purpose, which was to keep uninvited guests from entering the house, at least without some advance notice. Si Hoan kept a loaded handgun in the closet of the bedroom he occupied. The money counter in Si Hoan’s bedroom suggests there was cash in that room from time to time. No cash or drugs were found in Si Hoan’s bedroom. The drugs were in the front bedroom. The primary bedroom, therefore, may have contained items of interest to uninvited guests; the front bedroom, which Si Duong David occupied, certainly did. There was a gun cleaning kit in the closet of the front bedroom and loose ammunition in the front bedroom compatible with both firearms but more suited to the Hi-Point 380 in the primary bedroom. To the extent that either of the two occupied bedrooms was more associated with the loading and maintenance of the firearms, it was the front bedroom, which Si Duong David occupied.
[104] For these reasons, I am satisfied that the only reasonable inference from the evidence is that Si Duong David had knowledge of the loaded Browning 9 mm in the closet of the front bedroom, that he knowingly kept it there and that he intended to have it there for his use or benefit.
[105] I am, therefore, satisfied that the Crown has proven, beyond a reasonable doubt, that Si Duong David was in constructive possession of the loaded Browning 9 mm firearm in the front bedroom closet.
Joint possession (firearms)
[106] I have considered whether the Crown proved that the defendants had possession of the firearm in the bedroom other than the bedroom I have found each of them occupied. I have concluded that I cannot be satisfied that the only reasonable inference from the evidence is that each of the defendants had both knowledge and control of the gun in the bedroom other than the bedroom he himself occupied.
ISSUE THREE: Has the Crown proven, beyond a reasonable doubt, that the defendants possessed the cocaine and the crack cocaine for the purpose of trafficking?
[107] Having found that both the defendants were in possession of the drugs in the front bedroom, I must determine whether the Crown has proven, beyond a reasonable doubt, that the defendants were in possession of the drugs for the purpose of trafficking.
[108] Trafficking is defined in s. 2 of the Controlled Drugs and Substances Act as including sale, transport or delivery of a prohibited substance or an offer to do so.
[109] It was admitted that 34.3 grams of cocaine and 3.8 grams of crack cocaine were found in the front bedroom.
The evidence of Det. Brian Emery
[110] The Crown sought to qualify OPS Det. Brian Emery as an expert witness in the areas of: (1) possession for the purpose of trafficking of cocaine and crack cocaine; (2) possession of proceeds of crime. More specifically, the Crown sought to have Det. Emery qualified in the areas of:
(a) Scale and different levels of drug trafficking operations;
(b) Methods of packaging/preparation of the drugs for sale;
(c) Value and pricing;
(d) Practices and habits of drug users and traffickers;
(e) Instruments of trafficking and possession of the purpose (including paraphernalia); and
(f) Proceeds of crime derived from the sale of controlled substances.
[111] The defendants agreed that Det. Emery could be qualified as an expert witness in these areas but took issue with certain opinions he was expected to offer.
[112] At the first, or threshold stage of my consideration of Det. Emery’s evidence, I concluded that he was a properly qualified expert. As an undercover officer, Det. Emery had been involved in more than 250 drug purchases, most of them cocaine and crack cocaine. He had also acted as the exhibit officer for seizures and had handled confidential informants. He teaches police recruits about aspects of drug investigation.
[113] I was also satisfied that the proposed areas of Det. Emery’s testimony were relevant and necessary, in the sense that they would assist me to interpret the evidence.
[114] I ruled that Det. Emery was qualified to give opinions in the six areas identified by the Crown but agreed with the defendants’ counsel that Det. Emery should be restricted from offering certain opinions. I concluded that, although Det. Emery’s opinions with respect to the use of cocaine and crack cocaine were based on his years of observation and experience, his opinions with respect to the maximum amount a user could be expected to consume were similarly limited by his own observations and experience and, in that sense, could be characterized as “anecdotal”. I ruled that Det. Emery could properly provide opinions about the consumption of cocaine and crack by users but not about maximum daily consumption. I ruled that, at the threshold stage of my consideration of Det. Emery’s evidence, I would not exclude an opinion about the ultimate issue of whether the defendants possessed the cocaine and crack cocaine for the purpose of trafficking, but that, if asked, I would consider revisiting the ruling at a later stage.
[115] In examination in chief, I found Det. Emery’s evidence to be non-partisan. For example, asked if a scale was a tool of a drug trafficker, he said yes, but that drug users may also possess and use scales, to ensure that they are not short-changed. Det. Emery also said that, in the past, having two cell phones might have been a telltale sign that a person was trafficking in drugs but that times have changed, and he could no longer say this is the case. If Det. Emery was unable to answer a question based on his experience, he said so.
[116] The cross-examination by Si Duong David’s counsel, however, raised a serious issue about the origin of a paragraph in Det. Emery’s written report. Det. Emery’s report, which he had prepared in 2018, included a paragraph that was virtually identical to a paragraph in a report written by another Ottawa police officer who had testified at a trial in 2014, and which Toscano Roccamo J. had reproduced in a written decision. The paragraph in Det. Emery’s report was the following:
Based on my experience, training, and discussions with other officers in the field, I find Crack Cocaine users generally buy in small amounts when purchasing the product for personal use. Typically, I expect a user to either purchase, or be in possession of no more than an 8-ball, 3.5 grams of crack cocaine at one time. I also find heavy users often resort to selling a portion of their cocaine purchases to finance and maintain their costly habit. When searching a heavy user I would expect to find evidence of crack cocaine use, namely items such as a crack pipe, lighter, (sic) which has been used to facilitate ingestion of the drug.
The paragraph of the other officer reproduced in Toscano Roccamo J.’s decision was the following:
Based on my experience, training and discussions with other officers in the field, I find crack cocaine users generally buy crack in small amounts when purchasing the product for personal use. Typically, I expect a user to either purchase, or be in possession of no more than an ‘8-ball’ (approximately 3.5 grams) of crack cocaine at one time. I also find heavy users often resort to selling a portion of their crack cocaine purchases to finance and maintain their costly habit. When searching a heavy user I would expect to find evidence of crack cocaine use, namely items such a (sic) homemade or city issued pipe, or a lighter or something similar to facilitate the smoking of the drug.
[117] Before the excerpt from the other officer’s report was put to him, Det. Emery had said that his own report had been written entirely in his own words, that he had not cut and pasted his report from other sources, other than the definition of cocaine hydrochloride, and that he had not relied on a police template. Presented with the report of the other officer, Det. Emery explained that when officers first start to do work as expert witnesses, they rely on other officers to assist them with their reports. Det. Emery said that he had not done so in this case, and that his report in this case was his own. He also said that while he does not have an Ottawa police template, he does have his own definitions saved, and that this paragraph was his definition of what a crack user would consume. He said that he had not had a hand in preparing the other officer’s 2014 report and that he had not accessed the other officer’s report when he wrote his.
[118] In his closing argument, the Crown counsel downplayed this issue, arguing that as Det. Emery had adopted the opinions in the paragraph, and as they were opinions he was entitled to give based on his training and experience, it was not significant. The defendants’ counsel argued that Det. Emery’s evidence should be excluded in its entirety because he had not been candid with the court when he had said his report was entirely in his own words and because his opinions were not based on his own independent judgment. Si Hoan’s counsel argued it was obvious that Det. Emery had copied the impugned paragraph from the report of the other officer. Si Duong David’s counsel, while agreeing that Det. Emery’s evidence should be excluded, also argued that some of Det. Emery’s evidence was supportive of the defendants’ position that the drugs were for personal use and not for the purpose of trafficking. For example, the 3.8 grams of crack cocaine found in the front bedroom was not significantly more than the 3.5 grams Det. Emery had said would be the most he would expect a user of crack cocaine to possess at any given time. Det. Emery had also said that if crack pipes, rolling papers or lighters had been found at 413 Country Glen Way, this would weigh in favour of personal use of crack cocaine, rather than trafficking. Si Duong David’s counsel had demonstrated that several lighters were visible in the police pre-search video of the house (Ex. 2A.). Si Duong David’s counsel also argued that Det. Emery had said that the amount of cocaine that was seized could be consistent with personal use, depending on the circumstances, and that the presence of guns did not eliminate the possibility that the drugs were for personal use, rather than for the purpose of trafficking, because users, like traffickers, have to worry about being ripped off.
[119] I have already referred to the rulings I made at the threshold stage of my consideration of Det. Emery’s evidence. At the second stage of the analysis, the gatekeeping stage, I must undertake a cost-benefit analysis, balancing the potential risks and the potential benefits of admitting the evidence. (Lights, at para. 41; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.)
[120] Det. Emery did not clearly articulate how it could be that his report contained virtually the same paragraph as a report prepared by another officer years earlier. I took from Det. Emery’s evidence that other officers had assisted him with his first expert’s report, which he wrote in 2017, and that he later used his first report to prepare his subsequent reports, including his report in this case. I infer that Det. Emery received assistance from the officer who wrote the report in the 2014 case or that he and that other officer had both at one time received assistance from the same officer or officers. Although Det. Emery said there was no OPS template, the information-sharing he described when officers prepare an expert’s report for the first time amounted to template-sharing by another name. I cannot accept that the impugned paragraph was in Det. Emery’s “own words”. Even if he had taken it from one of his own previous reports for purposes of the report in this case, it had obviously come from somewhere else initially.
[121] I can appreciate that someone who has never previously written a report for use in a court proceeding might seek help from colleagues. However, that two reports would include a paragraph with the same four opinions (that crack cocaine users generally buy in small amounts; that they would not expect a user to buy or be in possession of more than “an 8-ball” or 3.5 grams of crack cocaine at one time; that heavy users often sell a portion of their cocaine to finance and maintain their habit; and that when searching a user, they would expect to find a pipe or a lighter) raises questions about the origin of the opinions in the paragraph.
[122] Det. Emery’s difficulty in articulating how virtually the same paragraph ended up in the reports of two officers left me with concerns about the extent to which his opinions were the product of a collaborative effort. That said, that he relied in part on other officers was not something he was attempting to conceal: the impugned paragraph specifically states that it is based in part on discussions with other officers. It was also clear that Det. Emery’s training as a police officer, by other officers, informed his opinions, as well as his experience, which would include experience working with and sharing information with other officers.
[123] I found Det. Emery’s evidence when he was cross-examined about the origins of the impugned paragraph to be unclear and difficult to follow, but I did not find it to reveal a lack of impartiality or a bias on his part.
[124] I had already ruled at the threshold stage of my consideration of Det. Emery’s evidence that one of the opinions in the impugned paragraph, the one in respect of the maximum amount he would expect a user to possess at one time, was not admissible. As I now consider whether the opinions in the balance of the paragraph are more probative or more prejudicial, I have concluded that I require one of the other opinions, the one in respect of the items Det. Emery (and the officer who wrote the 2014 report) would expect a user, as opposed to a trafficker, of crack cocaine to have on hand, including lighters, because it will assist me to interpret the evidence. It is probative and is not an opinion that is helpful to the Crown’s position. As Si Duong David’s lawyer argued, although Det. Emery was not aware of this, several lighters were seen in the pre-search video (Ex. 2A) taken by the OPS on December 4, 2018.
[125] I consider the balance of Det. Emery’s evidence, the evidence other than the evidence in the impugned paragraph, to be more probative than prejudicial overall. Nonetheless, I intend to exercise my gatekeeper function by according his evidence less weight than I otherwise might have and by limiting my reliance on this evidence to: (a) areas where it supports the defendants’ position; or (b) where I consider it necessary to assist me to interpret other evidence.
[126] In my ruling at the threshold stage, I had said that I would be open to revisiting my decision with respect to the admissibility of Det. Emery’s opinion about whether there was possession for the purpose of trafficking in this case. However, in his oral evidence in chief, while Det. Emery gave evidence about the indicia of trafficking, he did not in fact offer an opinion with respect to whether there was possession for the purpose of trafficking in this case.
The 3.8 grams of crack cocaine
[127] Det. Emery testified that the amount of crack cocaine that was seized, 3.8 grams, was not necessarily inconsistent with personal use.
[128] On cross-examination by Si Duong David’s counsel, Det. Emery agreed that if crack cocaine were being consumed at the house, one would expect to see a heat source, such as a lighter. Det. Emery agreed that crack cocaine can be rolled into a joint. He agreed that users of crack cocaine sometimes make it themselves, and that baking soda can be used to do this. He also agreed that crack pipes can be very small.
[129] Det. Emery said he did not know whether lighters or rolling papers were found at 413 Country Glen Way. He knew that two boxes of baking soda had been seized.
[130] A video taken by police at the house showed there were several lighters in the house. It also showed a bathroom with a lighter, what appeared to be some small approximately cigarette-sized paper tubes, several packages of cigarettes and what could have been loose tobacco on a counter between the sink and the toilet.
[131] As lighters, what could have been rolling papers, tobacco and baking soda were all seen, if not seized, at 413 Country Glen Way, and as Det. Emery said that 3.8 grams was not necessarily inconsistent with personal use, I find that the Crown has failed to prove, beyond a reasonable doubt, that the crack cocaine was possessed by the defendants for the purposes of trafficking.
The 34.3 grams of cocaine
[132] I turn now to consideration of whether the Crown has proven, beyond a reasonable doubt, that the defendants were in possession of the 34.3 grams of cocaine found at 413 Country Glen Way for the purpose of trafficking.
[133] I must consider all the evidence, including the surveillance evidence. I have already noted that over two days of surveillance, police observed a person they identified as Si Hoan, driving a black Lexus, meet briefly with other people in the parking lot of the shopping mall on eight occasions. They also observed the person make several round trips in the black Lexus each day between 413 Country Glen Way and the shopping mall’s parking lot. On one occasion, Det. Cory saw the driver of the black Lexus pull up beside the driver’s side of a white van and hand the driver of the van a Ziploc bag. On another occasion, Sgt. Curtis saw the black Lexus drive up to a silver Audi. Sgt. Curtis saw the Audi driver walk toward the Lexus, look all around the parking lot and then reach his closed hand into the driver’s side window of the Lexus. Sgt. Curtis then saw the Audi driver place his hand into his jeans pocket, while continuing to scan the parking lot. On four other occasions, Sgt. Curtis saw the drivers of other vehicles get into the Lexus, and then return to their vehicle after 30 seconds to two minutes.
[134] Although I did not accept the evidence that Si Hoan was identified as the driver of the black Lexus, I do accept that the black Lexus, registered to 413 Country Glen Way, made multiple round trips between 413 Country Glen Way and the Tanger Outlets parking lot and that, whoever was driving at the time, took part in eight short meetings, one of which involved the exchange of a Ziploc bag and another of which involved a person who reached into the Lexus and then put his hand into his jeans pocket, all the while looking around the parking lot.
[135] I must also consider the items found in the front bedroom of 413 Country Glen Way, in addition to the two grey plastic bags that contained the cocaine. A scale was found on the table beside the bags containing the cocaine. I have already noted that Det. Emery said that both traffickers and users may have scales. There were multiple packages of unused plastic “dime bags” in the front bedroom. Some of these little bags were found on the table and others were in a box with a number of prescription pill bottles. Det. Emery said that dime bags that have already been used to hold cocaine have white residue in them. He said that used dime bags at a location are more a sign that cocaine is being used there and that a quantity of unused dime bags is more a sign that something is being packaged there.
[136] Det. Cory described a large freezer bag of white powder in the front bedroom. The substance in the bag was admitted to be “667.5 grams of an unknown powder that is not a substance within the meaning of the C.D.S.A., Cannabis Act or the Prescription Drug List as defined in s. A.01.010 of the Food and Drug Regulations.” In the pre-search video taken by Det. Lehman (Ex. 2A), the large freezer bag can be seen on the floor, directly under the table where the cocaine was found. Det. Cory said that the white powder in the bag did not appear to be cocaine; it had a different look and texture. Det. Cory said that, based on his experience in the drug unit, he believed the powder to be “Phenacetin”. Det. Cory said Phenacetin is a substance that is used to mix with cocaine that the drug unit seizes frequently. Asked on cross-examination whether he knew Phenacetin to be a pain-relieving drug, Det. Cory said he only knew it to be what he described as a “buffing agent” for cocaine. Det. Payment, the exhibits officer on December 4, 2018, described having received a bag containing a “buffing agent” which he also described as a mixing agent, to be mixed with drugs. Det. Emery said that a buffing agent is a substance that is added to cocaine to increase its weight and therefore its profitability. He said that, in the process, the purity of the cocaine is reduced. Det. Emery said that Phenacetin is the “go to” buffing agent but that a buffing agent can be any substance that has the same appearance as cocaine. Det. Emery did not know what the buffing agent was in this case. Det. Emery said that users of cocaine do not use buffing agents; they want the purest cocaine and therefore the best “high” they can get for their money.
[137] The evidence included a money counter, which Det. Emery said could be a tool of drug traffickers, because drug dealing is a cash business. The evidence also included two loaded handguns and a kick plate on the inside of the front door of 413 Country Glen Way. Det. Emery said that weapons are a tool of the drug traffickers, although, as I have already noted, he said that users may carry weapons as well. Det. Emery said that drug trafficking is a dangerous business and that drug traffickers face threats from both competitors and users.
[138] I can draw no inferences from the cocaine residue found on the toilet in the main bathroom. The amount that was flushed down the toilet is unknown. I imagine that both users and traffickers of cocaine would be motivated to make it disappear when they know the police are coming through the front door.
[139] Based on all the evidence, I am satisfied, beyond a reasonable doubt, that the defendants were in possession of the 34.3 grams of cocaine for the purpose of trafficking. Det. Emery said that multiple short duration meetings, such as those described by the officers involved in the surveillance, could be evidence that someone is either selling drugs or buying drugs. However, Det. Cory saw the driver of the black Lexus hand the driver of the white van a Ziploc bag, not vice versa. The occupants of 413 Country Glen Way could have been selling “bobblehead” figurines or motorcycle helmets out of the black Lexus, but the driver of the silver Audi could not have fit a bobblehead or a helmet into his jeans pocket after he removed his hand from the driver’s side window of the Lexus. I am satisfied that the officers were seeing drug transactions unfold and that the driver of the black Lexus was the seller, not the buyer. Because multiple packages of dime bags were found in a box with multiple bottles of prescription pills, I have considered whether the pills or their contents were being packaged in the front bedroom and not the cocaine. This is possible, but this would not explain the bag containing 667.5 grams of white powder. While I cannot be satisfied, based on the evidence, that this white powder was Phenacetin, I am satisfied, based on the evidence of Det. Cory, Det. Payment and Det. Emery that this white powder was a buffing or mixing agent, which is used by traffickers to increase the weight of cocaine. I am also satisfied that buffing or mixing agents reduce the purity of cocaine and would not be added to cocaine by users of the drug. In combination, the multiple short duration meetings involving the black Lexus, the Ziploc bag seen by Det. Cory, the multiple packages of dime bags, the 667.5 grams of a buffing or mixing agent, the scale covered in white powder, the two loaded firearms, the money counter in the primary bedroom and the kick plate at the front door, all weigh in favour of possession of the cocaine for the purpose of trafficking and not for personal use.
[140] In conclusion, I am satisfied that the Crown has proven, beyond a reasonable doubt, that the defendants, who were both in possession of the drugs in the front bedroom, were both in possession of the 34.3 grams of cocaine for the purpose of trafficking.
ISSUE FOUR: Has the Crown proven, beyond a reasonable doubt, that Si Duong David and/or Si Hoan had possession of $195.00 in Canadian currency knowing that all or part of it had been obtained through trafficking?
[141] Police seized $155.00 in cash from the table in the front bedroom and two $20.00 bills from the living room area on the main floor.
[142] I am satisfied that Si Duong David had constructive possession of the $155.00 in the front bedroom, based on his occupation of the bedroom and the relative location of the cash and the prescription pill bottle with his name on it that was found on the table. I cannot be satisfied that Si Hoan had knowledge or control of the $155.00, nor can I be satisfied that either of the defendants had knowledge and control of the two $20.00 bills in the living room area.
[143] Det. Emery said that the amount of cash and drugs a drug dealer may have on hand will fluctuate. He said that sometimes dealers have a lot of cash but only a small quantity of drugs and at other times they may have very little cash and a large quantity of drugs.
[144] Despite the proximity of the $155.00 to the cocaine in the front bedroom, I cannot be satisfied, beyond a reasonable doubt that the $155.00 was obtained through trafficking. I do not consider the amount to be an unusual amount for a person to have on hand.
DISPOSITION
[145] In conclusion:
IN RESPECT OF THE FIRST COUNT ON THE INDICTMENT, possession for the purpose of trafficking cocaine:
I find Si Hoan Nguyen guilty.
I find Si Duong David Nguyen guilty.
IN RESPECT OF THE SECOND COUNT ON THE INDICTMENT, possession for the purpose of trafficking crack cocaine:
I find Si Hoan Nguyen guilty of simple possession.
I find Si Duong David Nguyen guilty of simple possession.
IN RESPECT OF THE THIRD COUNT ON THE INDICTMENT, possession of a loaded restricted firearm, a Browning 9 mm:
I find Si Hoan Nguyen not guilty.
I find Si Duong Davd Nguyen guilty.
IN RESPECT OF THE FOURTH COUNT ON THE INDICTMENT, possession of a loaded prohibited firearm, a Hi-Point 380 AUTO:
I find Si Hoan Nguyen guilty.
I find Si Duong David Nguyen not guilty.
IN RESPECT OF THE FIFTH COUNT ON THE INDICTMENT, storage of the Browning 9 mm firearm in a careless manner:
Based on the agreement statement of facts marked as Ex. 12:
I find Si Hoan Nguyen not guilty.
I find Si Duong David Nguyen guilty.
IN RESPECT OF THE SIXTH COUNT ON THE INDICTMENT, storage of the Hi-Point 380 AUTO firearm in a careless manner:
Based on the agreement statement of facts marked as Ex. 12:
I find Si Hoan Nguyen guilty.
I find Si Duong David Nguyen not guilty.
IN RESPECT OF THE SEVENTH COUNT ON THE INDICTMENT, possession of the Browning 9 mm firearm for a purpose dangerous to the public peace:
I find Si Hoan Nguyen not guilty.
I find Si Duong David Nguyen guilty.
IN RESPECT OF THE EIGHTH COUNT ON THE INDICTMENT, possession of the Hi-Point 380 AUTO firearm for a purpose dangerous to the public peace:
I find Si Hoan Nguyen guilty.
I find Si Duong David Nguyen not guilty.
IN RESPECT OF THE NINTH, TENTH, ELEVENTH and TWELFTH COUNTS ON THE INDICTMENT:
The Crown requested a stay of these four counts under the Kienapple Principle if a conviction was registered under counts 3 and 4.
As I have made findings of guilt under counts 3 and 4, Counts 9, 10, 11 and 12 shall be stayed.
COUNTS THIRTEEN, FOURTEEN, FIFTEEN AND SIXTEEN HAVE BEEN DISMISSED.
IN RESPECT OF COUNT SEVENTEEN, possession of the Browning 9 mm firearm, knowing that the serial number has been altered:
Based on the finding of guilty on Count Three, the agreed statement of facts marked as Ex. 12, and s. 108(4) of the Criminal Code;
I find Si Hoan Nguyen not guilty (in respect of count 17).
I find Si Duong David Nguyen guilty (in respect of count 17).
IN RESPECT OF COUNT EIGHTEEN, possession of $195.00 knowing that all or part had been obtained from trafficking:
I find Si Hoan Nguyen not guilty.
I find Si Duong David Nguyen not guilty.
COUNTS NINETEEN AND TWENTY HAVE BEEN DISMISSED.
Released: June 14, 2021
COURT FILE NO.: 18-5524
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
SI HOAN NGUYEN and SI DUONG DAVID NGUYEN
Respondents
REASONS FOR JUDGMENT
Madam Justice H. J. Williams
Released: June 14, 2021
[^1]: These firearms were more fully described in two reports of Det. Joseph Meehan dated January 31, 2019, which were admitted for the truth of their contents.
[^2]: This bedroom was at the back of the second floor of the house. It was referred to as the master bedroom in the agreed statement of facts and in the oral testimony of some of the witnesses.
[^3]: In the agreed statement of facts, this bedroom was referred to as “the upstairs bedroom” To avoid confusion, I will refer to it as “the front bedroom”; both the primary bedroom and the front bedroom were on the second floor of the house.
[^4]: This video was marked as Ex. 2A.
[^5]: At the trial, Det. Payment identified a retail sales contract which named Tony Graham Luxury Automobiles Ltd. as the seller as being the contract he had found in the primary bedroom. Si Hoan’s address on the contract was in Kanata but not at Country Glen Way. Det. Lehman testified that he found on the main floor of the house a Tony Graham contract for the purchase of an automobile that had the 413 Country Glen Way address on it. There was only the one Tony Graham contract in evidence, it did not have the 413 Country Glen Way address on it.
[^6]: A video taken after the search (Ex. 2F) shows 14 pill bottles spread out on the floor of the front bedroom. Not all the labels on the bottles are visible; five are for gabapentin, with instructions to take one capsule twice daily. Two are for methadone. There was no expert evidence at trial about the purpose of these medications. In the pre-search video taken by Det. Lehman (Ex. 2A), several packages of dime bags can be seen in the box where the prescription pill bottles were found. Six packages of dime bags are seen on the floor with the pill bottles in Ex. 2F.
[^7]: Section 2 of the Controlled Drugs and Substances Act adopts the definition of "possession" in s. 4(3) of the Code.
[^8]: The prescription pill bottles with labels that were legible in the police videos were in the name of “Nguyen, Duong” and not “Si Duong David Nguyen”, the name on the indictment. Particularly given the proximity of the bottles to the TD Canada Trust document in the name of “Si Duong Nguyen” found on the bed in the front bedroom and the wallet belonging to Si Duong David Nguyen found in the front bedroom and later returned to Si Duong David, I am satisfied that the prescription pill bottles belonged to Si Duong David.
[^9]:Det. Cory had estimated there were 30 to 40 empty and full pill bottles in the box found in the front bedroom but also said he did not know the exact number. A video taken by police showed 14 bottles.
[^10]: There was no evidence about whether there was a lock on the door to the front bedroom.
[^11]: There was no formal admission that the defendants were brothers. In concluding that it is not reasonable to infer that Si Hoan would not have told Si Duong David about the Browning 9 mm, I am making no assumptions about the defendants’ relationship including any assumption that they would have been protective of each other because of a familial connection.