Court File and Parties
COURT FILE NO.: CR-21-10000144-0000 DATE: 20210719
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – NICHOLAS ORTEGA
Counsel: Chris Walsh, for the Federal Crown Stephen Byrne, for the Provincial Crown Michael A. Johnson and Ryan E. Durran, for Mr. Ortega
HEARD: June 21, 22, 23, 28, and 29, 2021
R.F. GOLDSTEIN J.
REASONS on Directed Verdict
[1] In October 2018 the Toronto Police commenced an investigation into Vincent Huang and Daniel Siu. During that investigation they observed Nicholas Ortega associating with Huang (and Siu) once in November 2018. The police observed Mr. Ortega again in February 2019. The police charged Huang and Siu with various offences relating to the guns and the drugs. They also charged Mr. Ortega. Mr. Huang and Mr. Siu will be tried separately. Mr. Ortega appears before me alone charged with the following offences:
Conspiracy to traffic fentanyl with Vincent Huang and others between November 2, 2018 and February 16, 2019 contrary to s. 465(1)(c) of the Criminal Code;
Conspiracy to traffic cocaine with Vincent Huang and others between November 2, 2018 and February 16, 2019 contrary to s. 465(1)(c) of the Criminal Code;
Possession of fentanyl for the purpose of trafficking on February 16, 2019 contrary to s. 5(2) of the Controlled Drugs and Substances Act;
Possession of cocaine for the purpose of trafficking on February 16, 2019 contrary to s. 5(2) of the Controlled Drugs and Substances Act;
Possession of a prohibited or restricted firearm (a Taurus handgun) on February 16, 2019, together with readily accessible ammunition without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a prohibited device (an overcapacity magazine) on February 16, 2019, contrary to s. 91(2) of the Criminal Code;
Possession of fentanyl for the purpose of trafficking on February 15, 2019 contrary to s. 5(2) of the Controlled Drugs and Substances Act;
Possession of cocaine for the purpose of trafficking on February 15, 2019 contrary to s. 5(2) of the Controlled Drugs and Substances Act;
Possession of a loaded prohibited or restricted firearm (a Smith & Wesson handgun) on February 15, 2019, without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a prohibited or restricted firearm (a Ruger handgun) on February 15, 2019, together with readily accessible ammunition without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a prohibited or restricted firearm (a Glock handgun) on February 15, 2019, together with readily accessible ammunition without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a prohibited or restricted firearm (a black and gold Smith & Wesson handgun) on February 15, 2019, together with readily accessible ammunition without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a prohibited or restricted firearm (a black Smith & Wesson handgun) on February 15, 2019, together with readily accessible ammunition without having a licence or authorization contrary to s. 95(1) of the Criminal Code;
Possession of a firearm (an SKS rifle) knowing he did not have a licence for it on February 15, 2019, contrary to s. 92(1) of the Criminal Code.
[2] The charges are being prosecuted jointly by the federal and provincial Crowns.
[3] On February 14 and 15, 2019 the police executed search warrants at storage lockers, residences, and two cars. The police found guns and drugs. The Crown theory is that Mr. Ortega conspired with Mr. Huang and others to traffic heroin and fentanyl, and that Mr. Ortega had joint possession of the guns and drugs with Mr. Huang and Mr. Siu.
[4] Counts 1 and 2 relate, obviously, to alleged conspiracies to traffic in fentanyl and cocaine.
[5] Counts 3 to 6 relate to drugs and a firearm seized from secret “traps” in a Hyundai Sonata parked at 37 Mystic Avenue in Toronto. The Sonata was registered to Huang. The police had observed Ortega driving it on February 14, 2018. The police seized the following items from three secret “traps” the Sonata:
• A kilogram of fentanyl (count 3);
• A half-kilogram of cocaine (count 4);
• A Taurus 9mm handgun and the overcapacity magazine (counts 5 and 6).
[6] Counts 7 to 14 relate to drugs and firearms seized from storage locker 3433 at Access Storage at 3680 Victoria Park Road, Toronto. The police also seized a money counter from storage locker 3121 at Access Storage. The police seized the following items from locker 3433:
• A kilogram of fentanyl (count 7);
• A kilogram of cocaine (count 8);
• Handguns, a silencer, and a rifle (counts 9-14.
[7] The police also seized a half-kilogram of heroin and two kilograms of marijuana from locker 3433, but Mr. Ortega is not charged with possession of those drugs.
[8] The police seized 90 grams of Fentanyl from a secret “trap” in a Hyundai Santa Fe driven by Huang and his wife. The police also seized $60,400 in cash, a money counter, and a vacuum sealer from the residence of Huang and his wife. The police did not charge Mr. Ortega with any offences in relation to the seizures from the Santa Fe or the Huang residence.
[9] The Crown has closed its case. The Crown’s case consisted of surveillance of Mr. Ortega, video footage from the storage facility, evidence of the seizing officers, and business records from the storage facility.
[10] The defence brings an application for a directed verdict. The defence position is that there is no evidence that Mr. Ortega had knowledge or control of the drugs or the guns either in the Sonata or at the storage facility. There is also no evidence that Mr. Ortega conspired with anyone to traffic drugs.
[11] For the reasons that follow, I agree. Mr. Ortega is discharged on all counts.
BACKGROUND
[12] The police investigation into Siu and Huang commenced in October 2018. Police used surveillance, tracking warrants, business records, and covert cameras. There are no intercepted communications or extractions from cell phones.
[13] Business records and testimony reveal the following facts about the storage lockers:
• On June 11, 2018 Huang rented storage locker 3121 at Access Storage. Martina Tran, his wife, was listed as the secondary contact. At some point (it is not clear when) Siu rented locker 3143.
• In order to enter the Access Storage building, each renter must enter a code on a keypad. The code is unique to each renter. Once inside the building, each renter unlocks his or her own locker, using their own lock.
• Between June 11, 2018 and January 22, 2019 the unique code issued to Huang was used 260 times to enter Access Storage. Locker 3121, however – the locker rented by Huang – was opened only 25 times.
• Apart from those 25 times, locker 3143 – the locker rented by Siu, and where the drugs and firearms were found – was always opened and/or closed immediately after Huang’s unique code was used to enter Access Storage.
• Between April 13, 2018 and January 27, 2019 Sui’s unique code was used to access the building about 40 times. Locker 3123 – the locker rented by Huang, and where the money counter was found – was opened 925 times.
• Mr. Ortega’s name does not appear in any document related to locker 3121 or locker 3143.
• There is no evidence that Mr. Ortega ever possessed a key, code, or any independent means of entering Access Storage or accessing locker 3121 or locker 3143.
[14] The only people who ever entered the storage facility and accessed either locker 3143 or locker 3121 were Huang, Siu, Tran, and Mr. Ortega.
[15] On November 2, 2018 police observed Mr. Ortega meet with Huang. Ortega took the train from Ottawa. He met with Huang in the parking lot of the Guildwood GO station. Huang was in the Santa Fe. They met briefly and then Ortega walked away carrying something that looked like a fast food container.
[16] The police conducted surveillance on Huang (and sometimes Ms. Tran) during November and December of 2018, and January and February of 2019. Huang generally drove the Santa Fe. He was observed to conduct counter-surveillance. Surveillance and tracking records show that the Santa Fe made multiple visits to Access Storage. Business records show that those visits generally coincided with an entry to Access Storage using Siu’s unique code. Sometimes the visits coincided with an entry showing Huang’s unique code. On some days Siu’s code was used to enter Access Storage on multiple occasions. The police did not observe Siu until February 11, 2019. On that date the police observed him at Access Storage with Mr. Ortega and Huang.
[17] On February 10, 2019 surveillance cameras at Access Storage recorded three visits by Huang. On the last visit he was joined by Mr. Ortega. At time stamp 2311 (actual time 2300) Mr. Ortega drove the Santa Fe up to the storage facility. Huang got out of the passenger seat. Huang entered the code into the keypad. They entered. Surveillance cameras (including a covert police camera) observed Huang and Mr. Ortega go to locker 3143. Huang unlocked and then opened the locker. Mr. Ortega stood outside and did not enter. They then left in the Santa Fe and drove to Huang’s residence.
[18] On February 11, 2019 at time stamp 1754 (actual time 1743) Mr. Ortega, Huang, and Siu drove in the Santa Fe to Access Storage. Mr. Ortega drove. The three entered the facility and went to locker 3143. Huang opened and entered the locker. A few minutes later, Mr. Ortega went back to the Santa Fe. Huang and Siu followed 8 minutes later. They all then went to Huang’s residence. Later that evening, at approximately 2000, Huang and Mr. Ortega left Huang’s residence. They drove in the Sonata to Access Storage. That was the first time the police observed the Sonata at the storage facility. The Sonata was registered to Huang. It later travelled to 37 Mystic in Scarborough. A heavyset male was later seen shoveling the driveway while the Sonata was parked there.
[19] On February 14, 2019 the police conducted surveillance of Mr. Ortega. He was observed driving the Sonata at Fairview Mall and meeting with someone driving a Lexus. He was also observed at a mall at 6109 Kingston Road. Mr. Ortega was observed entering a bar called Amigos and a Bank of Montreal branch. On the same day, Siu entered Access Storage carrying a hockey bag. He entered locker 3143. The police later found the hockey bag there. It contained hockey equipment.
[20] The police executed general warrants for lockers 3121 and 3143 on February 14, 2019. The police located the drugs and firearms as noted above. None of the drugs or the firearms in locker 3143 was in plain view. Regular search warrants for the lockers, the Huang residence, the Santa Fe, and the Sonata were executed on February 15, 2019. The police took the Sonata and the Santa Fe to a police facility where. An expert officer from the auto squad searched the car. He found secret traps containing the half-kilogram of cocaine, the kilogram of fentanyl, and the Taurus handgun.
[21] It is an agreed fact that the amounts of the drugs are consistent with possession for the purpose of trafficking.
ANALYSIS
[22] The well-known test on a directed verdict is whether there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at p. 1080; R. v. Arcuri, [2001] 2 S.C.R. 868 at para. 21. The test is the same whether the evidence is direct or circumstantial: R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 at p. 842-43.
[23] The judge does not weigh the evidence on a directed verdict application. Where, however, the Crown’s case is entirely circumstantial – as this case is – the judge is required to conduct a “limited” weighing. The judge must determine “whether the evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw”: Arcuri at para. 23.
[24] For the purposes of analysis, there are four issues:
• First, is there some evidence upon which a jury could find that Mr. Ortega entered into a conspiracy to traffic drugs?
• Second, is there some evidence upon which a jury could find that Mr. Ortega was in joint possession of the drugs and the guns in storage locker 3143?
• Third, is there some evidence upon which a jury could find that Mr. Ortega was in joint possession of the drugs and the gun in the Hyundai Sonata?
• The Crown also relies on s. 21(1) of the Criminal Code. Accordingly, the fourth question is this: is there some evidence upon which a jury could find that Mr. Huang was a party to Huang’s drug and gun possession?
(a) Is there some evidence upon which a jury could find that Mr. Ortega entered into a conspiracy to traffic drugs?
[25] As Mr. Durran, on behalf of Mr. Ortega, put it, the defence does not seriously contest that there was “something afoot” in Scarborough in 2018 and 2019. There is, he concedes, evidence of a conspiracy between Huang and Siu. There is, however, no evidence of involvement by Mr. Ortega. There is no evidence whatsoever that Mr. Ortega knew about any guns or drugs in either the storage locker or the Sonata.
[26] Mr. Byrne, Crown Counsel, argues that Mr. Ortega and Mr. Huang clearly knew each other. They had an exchange of some kind on November 2, 2018 at the Guildwood GO Station. Mr. Huang was clearly an active drug dealer at a high level. Mr. Ortega was clearly associated with him. As well, Mr. Ortega was clearly associated with the places where Mr. Huang stored guns and drugs: the Hyundai Sonata, and Access Storage. As far as the police can determine, the only people who ever attended the storage lockers were Mr. Huang, Mr. Siu, Ms. Tran, and Mr. Ortega. A jury would be entitled to find that it cannot be a mere coincidence that Mr. Ortega would be the only other person to attend the storage lockers and also be the person driving Mr. Huang’s Sonata – a Sonata with drugs and a gun secreted in it. Given that it is a circumstantial case no piece of evidence can be looked at in isolation.
[27] Respectfully, I do not agree with the Crown. There is no evidence that Mr. Ortega conspired with Mr. Huang and others.
[28] A conspiracy is the agreement of two or more people to do an unlawful act (or do something lawful by unlawful means) coupled with an intention to carry out that unlawful act: R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at p. 317. The actus reus of the offence is the formation of the agreement to commit an unlawful act; the mens rea of the offence is the intention to agree to carry it out: R. v. Tello, 2018 ONSC 385 at para. 14. Thus, there must be some evidence upon which a reasonable jury, properly instructed, could find beyond a reasonable doubt that:
• Mr. Ortega agreed with Mr. Huang and others to traffic drugs; and,
• Mr. Ortega intended to carry out that agreement.
[29] Virtually all conspiracies must be proven by circumstantial evidence, usually through the acts and declarations of the co-conspirators: R. v. F.(J.), 2013 SCC 12 at para. 53.
[30] I agree with Crown counsel that it would be open to a jury to find that Huang and Siu were high-level dealers in cocaine, fentanyl, and heroin. I also agree that it would be open to the jury to find that Ortega had an association with Huang. They were seen together and on at least one occasion Huang gave Mr. Ortega a container – although I do not think it would be open to a jury to find that because Huang was a drug dealer the container must have contained drugs. Notwithstanding the very cogent evidence of drug dealing by Huang, to draw that inference would require speculation.
[31] The jury would be required to look at the whole of the evidence, and not look at each piece in isolation. I agree with Mr. Byrne that this circumstantial case must be viewed as something of a jigsaw puzzle: none of the pieces by themselves tell you the full picture. The trier of fact must put the puzzle together. At some point, he argues, coincidence stops being a reasonable explanation. Thus, he argues, key circumstantial evidence of a drug conspiracy is the presence of drugs in the Sonata and locker 3143.
[32] The presence of drugs would be an important piece of the puzzle – indeed, it would be highly probative circumstantial evidence of Mr. Ortega’s participation in the conspiracy – if a jury could draw the inference that Mr. Ortega was aware of those drugs and had a measure of control. As I will explain, however, there is no evidence that Mr. Ortega had knowledge and control of those drugs.
[33] I agree with my colleague Pomerance J. as she stated in R. v. Wuschenny, 2018 ONSC 6765 at para. 77:
Logically, one piece of unreliable evidence cannot lend cogency to another piece of unreliable evidence. To hold otherwise would be to allow the most dangerous form of bootstrapping. Where evidence is of some probative value, it can combine with other evidence of probative value and cumulatively amount to proof. When the evidence has been determined to be unreliable (as is the photo lineup) or irrelevant (as is the accused's semen on a T-shirt not shown to be connected to the crime), there is no utility in combining it. If evidence is unreliable or irrelevant it is of no probative value. Zero plus zero equals zero…
[34] In other words, if each piece of evidence itself is of no probative value then there is no cumulative effect.
[35] In this regard, R. v. Venneri, 2012 SCC 33 is helpful. Venneri supplied drugs to Dauphin. Intercepted communications established the conspiracy to sell. The police seized cocaine from two associates of Dauphin. The trial judge convicted Venneri of possession of that cocaine for the purpose of trafficking. Fish J. for the Court said this at para. 17:
The only evidence linking Venneri to the drugs seized at the homes of Marchand and Bilodeau was the presence of symbols and expressions on the cocaine packaging that were consistent with expressions used by Venneri in telephone conversations concerning drug deals. But nothing indicates that those symbols were not used in other drug transactions completely unrelated to Venneri. In oral argument, the Crown conceded that there were no intercepted communications which explicitly linked Venneri to the drugs seized in 2005.
[36] In this case we have the converse of Venneri, where the intercepted communications were insufficient to establish knowledge of the cocaine. Here, if the Crown were unable establish that Mr. Ortega knew about the cocaine in the storage locker or the Sonata (or both), that evidence cannot be used as part of the circumstances establishing Mr. Ortega’s participation in a conspiracy. As I will explain below, I am not satisfied that there is some evidence that Mr. Ortega had knowledge and control of the cocaine in either the storage locker or the Sonata.
[37] What of the fact that Ortega was the only person other than Huang, Siu, or Tran to visit Access Storage and view lockers that appeared to have no purpose other than as a place to stash drugs and guns? That is indeed suspicious. That said, it was only three visits against a backdrop of literally hundreds of other visits. Those visits must be seen in light of what happened during those visits – which was nothing. Neither Mr. Ortega (or Huang or Siu) carried a package in or out. Each visit was very short. There is evidence that Huang may have packaged in locker 3143. There is no evidence that he or anyone else packaged drugs – or even accessed drugs or guns – while Mr. Ortega was present.
[38] If there were some evidence that Mr. Ortega had knowledge and control of the drugs (or the guns) in either the storage locker or the Hyundai, or that the meeting with Huang involved drugs, it might be enough to circumstantially tie him to a conspiracy to traffic cocaine and/or fentanyl.
[39] Of course, it is not only the presence of drugs that is one of the pieces of circumstantial evidence of a conspiracy. There is certainly evidence upon which the jury could find an association between Mr. Ortega and Huang. In my respectful view, however, the evidence does not rise any higher than an association. When I ask whether the evidence is reasonably capable of drawing the inferences sought by the Crown, the answer is “no”. Again, I think Venneri is helpful. The main issue in that case was whether Venneri was a member of Dauphin’s criminal organization. Although the analysis is different for a criminal organization and a conspiracy, Fish J. distinguishes between an associate of a criminal organization and a member at para 42:
In the present matter, the trial judge found that Dauphin operated a large drug-trafficking organization in the Montréal area. This finding is not seriously contested. The more contentious issue is whether Venneri was a member of that organization, exposing him to conviction under s. 467.13 of the Code. In this regard, I agree with Beauregard J.A. that Venneri was an associate of Dauphin rather than a member of his organization.
[40] I think it is useful to adopt a similar distinction here. Mr. Ortega is clearly an associate of Mr. Huang, and possibly of Mr. Siu. Huang was certainly an active high-level drug dealer. Mr. Ortega’s association with him was highly suspicious but it is not some evidence that he was a member of a conspiracy to traffic drugs. Suspicion is not sufficient to pass a directed verdict application.
(b) Is there some evidence upon which a jury could find that Mr. Ortega was in joint possession of the drugs and the guns in storage locker 3143?
[41] Section 4(3) of the Criminal Code defines “possession”. In R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.) the Court at para. 14 set out the different types of possession created by the section: personal possession, constructive possession, and joint possession.
[42] The Crown argues that Mr. Ortega was in joint possession of the guns and drugs in the storage locker as part of the whole picture.
[43] Again, with respect, I cannot agree.
[44] The Court in Pham stated the elements of constructive possession at para. 15: there must be “knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.” At para. 25, the Court set out some of the factors upon which the trial judge could have found Ms. Pham to be in joint possession of the drugs. None of those are present in this case.
[45] The evidence that Mr. Ortega allegedly had knowledge of the drugs and guns in locker 3143 amounts to this: he went with Huang twice and with Huang and Siu once to Access Storage. There is no evidence that he did anything other than stand outside a locker while someone else unlocked, opened, and closed it. There is no evidence that he ever accessed Access Storage using either Huang’s or Siu’s unique code. There is, however, evidence that when the police executed a general warrant on locker 3143 three days later no drugs and no guns were in plain view.
[46] A jury could not find that Mr. Ortega had knowledge of the guns and the drugs in locker 3143, based only on his visits and his association with Huang. Even if a jury could make such a finding, there is no evidence that Mr. Ortega had any measure of control. As noted, he did not unlock a locker or use a code to get into the building. There is no evidence of his fingerprints or DNA on any of the drug packaging or the guns. There is no evidence his fingerprints were on the money counter found in locker 3121 – or that he was even aware of it. There is no evidence he participated in a drug transaction. The surveillance of him meeting Huang in the parking lot of a GO station – months before Mr. Ortega was observed again – and meeting another car in the parking lot of Fairview Mall is not evidence upon which a jury could infer that was aware of the guns and drugs. Although he attended Huang’s residence, there is no evidence that he was aware of the money counter and the cash seized by the police there. He was in the Santa Fe on February 10 and 11, 2018, but there is no evidence he was aware of the 90 grams of Fentanyl seized by the police from a secret trap five days later.
[47] As I will turn to next, I also cannot infer that Mr. Ortega had knowledge and control of the drugs and the gun in the Sonata. Thus, I cannot bootstrap that knowledge into finding that a jury could infer knowledge and control of the drugs and guns in locker 3143: Wuschenny at para. 77
(c) Is there some evidence upon which a jury could find that Mr. Ortega was in joint possession of the drugs and the gun in the Hyundai Sonata?
[48] Crown counsel argues that Huang was a careful drug dealer who took exceptional pains to conceal his activity. He did not store drugs in his home. He used secret traps in his cars. He used a locker rented to Siu to store the drugs and the guns. It is inconceivable that he would have allowed Ortega to drive his car with a substantial amount of drugs and a gun without Ortega’s knowledge.
[49] Again, and with respect, I cannot agree with that submission.
[50] It is true that Mr. Ortega was observed operating Huang’s Sonata on February 14, 2018. He was arrested at the address where the Sonata was parked. There is no evidence that Mr. Ortega knew of the “traps”. There is no evidence that he accessed the “traps”. The car was not registered to him. The auto squad officer had to use an electronic device to open the traps. There is no evidence that Mr. Ortega had such a device or some equivalent method of opening the traps. I cannot infer knowledge and control of the drugs and the gun in the secret “traps” in the absence of any other evidence: R. v. Lincoln, 2012 ONCA 542 at para. 3. The point of the secret “traps” is that they are secret. There is evidence that the police expert had to use electronic means to open them. There is no evidence Mr. Ortega possessed such means. The drugs and gun in the storage locker are not other items of evidence in the sense mentioned by the Court of Appeal in Lincoln.
(d) Is there some evidence upon which a jury could find that Mr. Huang was a party to Huang’s drug and gun possession?
[51] The Crown also relies, as it is entitled to, on s. 21(1) of the Criminal Code. Unfortunately, however, I cannot agree that s. 21(1) applies here. In order for Mr. Ortega to be a party to the offences, there would have to be some evidence that Mr. Ortega even know about them. This submission founders on the same shoals. There is no evidence upon which a properly instructed jury could make a finding that Mr. Ortega was a party.
DISPOSITION
[52] The charges against Mr. Ortega are dismissed.
Released: July 19, 2021
COURT FILE NO.: CR-21-10000144-0000 DATE: 20210719
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – NICHOLAS ORTEGA
REASONS ON DIRECTED VERDICT
R.F. Goldstein J.