HER MAJESTY THE QUEEN – and – THANH-HAI LU

COURT FILE NO.: 20-15437 DATE: 2021-12-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – THANH-HAI LU, Defendant

Counsel: Amanda Hauk, for the Crown Gregory Lafontaine and Julia Kushnir, for the Defendant

HEARD: November 8, 9, 10, 2021

REASONS FOR JUDGMENT

DI LUCA J.:

[1] Mr. Lu is charged with a number of drug trafficking and possession for the purpose of trafficking offences. His judge alone trial was conducted before me over three days. The trial was extremely focussed and was mainly presented in the form of an agreed statement of fact with attached exhibits. I also heard brief viva voce evidence from two police witnesses. As is his right, Mr. Lu did not testify or call other defence evidence.

[2] Following the trial evidence, I heard closing submissions from the Crown. The defence opted to provide closing submissions in writing only. The Crown filed a brief written reply. The written closing and reply submissions will be marked as lettered exhibits to complete the record.

[3] I have considered the evidence in concert with all the submissions provided and now provide my Reasons for Judgment. These reasons also address the Crown’s application to admit certain hearsay utterances under the co-conspirator exception to the hearsay rule.

A. The Charges in the Indictment

[4] The indictment alleges that Mr. Lu committed the following offences:

1. Trafficking cocaine on January 10, 2019;
2. Trafficking cocaine on February 21, 2019;
3. Trafficking fentanyl on April 16, 2019;
4. Trafficking fentanyl and heroin on May 14, 2019;
5. Possession of cocaine for the purpose of trafficking on June 18, 2019;
6. Possession of MDMA for the purpose of trafficking on June 18, 2019; and,
7. Possession of ketamine for the purpose of trafficking on June 18, 2019.

[5] Counts 1-4 relate to four alleged instances of drug trafficking wherein Mr. Lu met with an undercover police officer and trafficked in the substances alleged. The core issue in relation to these counts is whether the Crown has proven beyond a reasonable doubt that Mr. Lu knew he was trafficking an illegal substance when he provided the drugs to the officer.

[6] Counts 5-7 relate to drugs found during the search of an apartment alleged to be connected with Mr. Lu. The core issue in relation to these counts is whether the Crown has proven beyond a reasonable doubt that Mr. Lu had knowledge of and control over the items found inside the apartment. If so, the further issue is whether the Crown has proven beyond a reasonable doubt that the drugs were possessed for the purpose of trafficking. At the outset of trial, the Crown conceded that it could not prove the “for the purpose” element in relation to count 7. As such, all that remains to be determined on that count is whether the Crown has proven beyond a reasonable doubt that Mr. Lu possessed ketamine on June 18, 2019.

B. The Agreed Statement of Fact

[7] Exhibit 1 at trial is a 19-page set of admissions of fact pursuant to s. 655 of the Criminal Code. Exhibits 2-49 are the various supporting exhibits referred to in Exhibit 1. The supporting exhibits include screen shots of the relevant text messages exchanged between the undercover police officer and the targets of the investigation, surveillance photographs and videos, as well as various related documentary exhibits and photographs, drug analysis certificates and an expert report. Two volumes of text messages were also filed as Exhibits A and B. These volumes replicate in paper form text messages included in Exhibits 2-49.

[8] By way of summary, the admitted facts include the following:

January 10, 2019 - Cocaine Purchase

[9] On January 8, 2019, Detective Constable Smith, an officer with the Durham Regional Police Service, Drug Enforcement Unit, acting in an undercover capacity, arranged to purchase half a kilogram of cocaine from a male named Dat Doan. DC Smith agreed to pay $15,000 up front. Mr. Doan could not obtain the cocaine on January 8, 2019 and the deal was pushed to the following day.

[10] On January 9, 2019 at 7:50 p.m., Mr. Doan advised DC Smith by the Signal Messenger application that “He [the supplier] said it will be tomorrow.”

[11] On January 10, 2019, at 4:28 p.m., Mr. Doan messaged DC Smith on the Signal Messenger application. He told DC Smith that his “buddy” would have the cocaine in his hands by 8:00 p.m.

[12] At 4:41 p.m., Mr. Doan sent DC Smith screenshots of a Signal Messenger application conversation with a user named “Chubb,” in which Chubb confirmed that he would “have it in my hands around 8.” DC Smith and Mr. Doan then confirmed that the price would be “28.5,” coded language meaning $28,500, with a down payment of “15,” coded language meaning $15,000.

[13] At 5:15 p.m., Mr. Doan sent DC Smith another screenshot from Chubb, in which Chubb asked Mr. Doan to send DC Smith to 65 East Liberty Street and confirmed that Smith would give him the “paper”, a coded term meaning money.

[14] At 5:27 p.m., DC Smith began to receive messages on the Signal Messenger application from the number 647-858-1084. The sender of these messages was later identified as the defendant Thanh-Hai Lu. One of the messages read, “Maybe I can meet you closer instead of liberty.” The two then exchanged a series of messages on the Signal Messenger application and arranged to meet at the McDonald’s at 85 Ellesmere Road.

[15] At 6:04 p.m., Detective Mackintosh provided DC Smith with $15,000 pre-recorded buy money in a blue Bath & Body Works bag.

[16] At 6:33 p.m., DC Smith arrived at the McDonald’s and sent a message to Mr. Lu, “Here.” Mr. Lu responded, “Pick me up in front,” “I’m inside,” “Black hoodie.” DC Smith drove to the front of the McDonald’s. Mr. Lu, wearing a black hoodie, grey sweatpants, and carrying tan coloured messenger bag, got into the front seat of DC Smith’s vehicle. DC Smith parked in the McDonald’s lot. Mr. Lu took a white plastic bag, tied at the top, out of his messenger bag. He handed it to DC Smith. DC Smith asked Mr. Lu if “it” was “proper,” and Mr. Lu assured DC Smith that it was. DC Smith handed Mr. Lu the blue Bath & Body Works bag containing $15,000 in pre-recorded police buy money. After a further conversation, they shook hands and Mr. Lu got out of DC Smith’s vehicle.

[17] After leaving DC Smith’s vehicle, Mr. Lu got into a black Acura SUV with the license plate CEAY793 and drove away. The license plate is registered to Mr. Lu.

[18] On February 6, 2019, DC Smith viewed an MTO photo of Thanh-Hai Lu and confirmed that was the same male he had purchased cocaine from in the McDonald’s parking lot on January 10, 2019.

[19] The white plastic bag provided by Mr. Lu contained 509.85 grams of cocaine.

February 21, 2019 - Cocaine Purchase

[20] On February 20, 2019, DC Smith met with Mr. Doan and arranged to purchase 9 ounces of cocaine, paying $10,000 up front. Mr. Doan confirmed that 9 ounces were available and that the deal would take place the following day. DC Smith arranged to meet Mr. Doan at a nail salon at 1550 Kingston Road in Pickering to deliver the money, then meet Mr. Lu at 780 Kingston Road to receive the cocaine.

[21] Mr. Doan told DC Smith to bring the “paper” and “files” (“files” also being a coded term referring to money) to him before meeting with “buddy,” and that “buddy” would message him soon. Mr. Lu then messaged DC Smith and asked when he wanted to meet the following day. They arranged to meet at 2:00 p.m.

[22] On February 21, 2019, DC Smith arranged to meet with Mr. Doan at 1:00 p.m. to deliver the $10,000 in marked buy money.

[23] At 12:32 p.m., the police saw Mr. Lu drive the black Acura with the license plate CEAY 793 out of the underground parking garage at 3525 Kariya Drive, Mississauga.

[24] At 12:55 p.m., DC Smith arrived at the plaza at 1550 Kingston Road. Mr. Doan instructed him to go to a pharmacy in the plaza and give the money to Mr. Doan’s wife, Thuy Le. DC Smith waited outside the pharmacy until Ms. Le emerged from the nail salon and walked to the pharmacy. DC Smith followed Ms. Le inside the pharmacy and met with her. DC Smith handed her the gift bag, which contained the pre-recorded police buy money. Ms. Le then returned to the nail salon.

[25] DC Smith then drove to 780 Kingston Road and parked at 1:08 p.m. He messaged Mr. Lu, who advised that he would arrive around 1:30 p.m.

[26] At 1:19 p.m., Mr. Lu arrived driving a black Acura with the license plate CEAY793 and parked next to DC Smith’s vehicle.

[27] DC Smith got into the front passenger seat of Mr. Lu’s Acura. He told Mr. Lu that their “buddy” had received the “papers,” a coded reference to Mr. Doan receiving the money from DC Smith. Mr. Lu gave DC Smith a pencil case. DC Smith opened the pencil case and looked inside. It contained what appeared to DC Smith to be 9 ounces of cocaine. The two shook hands and DC Smith returned to his vehicle.

[28] DC Smith looked at his phone and saw that at 1:27 p.m., he had received a Signal message from Mr. Doan saying “I’ll meet you at convenient store” and then a message saying “ignore that.” DC Smith advised the other police officers with him that he believed that Mr. Doan and Mr. Lu would meet at the convenience store in the plaza where Mr. Doan worked.

[29] Mr. Lu left 780 Kingston Road, driving the Acura. At 1:29 p.m., he pulled into the parking lot at 1550 Kingston Road. The police observed Mr. Doan standing near a convenience store holding a black polka-dot gift bag. Mr. Doan got into the passenger seat of the Acura, which was parked. At 1:44 p.m., he got out of the Acura, no longer holding the gift bag.

[30] Mr. Lu left 1550 Kingston Road. At 6:43 p.m., he returned to the underground parking lot at 3525 Kariya Drive.

[31] The pencil case provided by Mr. Lu contained 248 grams of cocaine.

April 4, 2019 - Samples of Blue and Purple Fentanyl

[32] On April 4, 2019, Mr. Doan called DC Smith and said that he had obtained some “purple mangos” for him, which DC Smith believed to be a reference to purple fentanyl. At 5:53 p.m., Mr. Doan messaged DC Smith on the Signal application: “I’ll have it in a few minutes,” “So you can pick it up anytime,” “Bring it back for sample.”

[33] At 10:40 p.m., DC Smith met Mr. Doan at 120 Harbourside Drive in Whitby. Mr. Doan gave DC Smith a silver flashlight.

[34] Inside the flashlight were two small plastic baggies, one containing a blue substance and the other containing a purple substance. The blue substance was a mixture of fentanyl and heroin weighing 1.3 grams. The purple substance was 0.7 grams of fentanyl.

April 16, 2019 - Purchase of Fentanyl

a. Agreement to Purchase

[35] On April 16, 2019, DC Smith contacted Mr. Doan using Signal and asked for a “half case” of “grape”, coded terms for half a kilogram of purple fentanyl. DC Smith requested a price of “3.50,” meaning $35,000. Mr. Doan responded, “He gets it at 37,” “So 39? Couple extra pounds for me?” This was a coded request for a price of $39,000. DC Smith agreed.

[36] At 11:33 a.m., DC Smith and Mr. Doan met for lunch. They discussed pricing for the half kilogram of purple fentanyl. During the discussion, Mr. Doan received a call, which he said was from the “driver”. Mr. Doan advised that the driver was getting the fentanyl for a price of $37,000. DC Smith and Mr. Doan agreed that DC Smith would pay $39,000 for the fentanyl. DC Smith would deliver the money to Mr. Doan first, then receive the fentanyl from Mr. Lu.

[37] At 9:20 p.m., DC Smith drove to Mr. Doan’s home at 120 Harbourside Drive, Whitby. He entered the house and was met by Mr. Doan, his wife, and their child. He gave Mr. Doan the $39,000 in pre-recorded buy money. At 9:25 p.m., DC Smith left 120 Harbourside Drive.

[38] At 9:26 p.m., DC Smith called Mr. Lu using Signal, and arranged to meet him at the Scaddabush parking lot at Scarborough Town Centre to pick up the product.

b. Movements of Mr. Lu

[39] At 2:51 p.m., Mr. Lu sent a message to DC Smith saying that he would be seeing his “guy” around 7:00 p.m.

[40] At 5:33 p.m., Mr. Lu departed from 3525 Kariya Drive, driving the black Acura with license plate CEAY973. The police conducted mobile surveillance of Mr. Lu throughout the evening.

[41] At 6:15 p.m., DC Smith contacted Mr. Lu to confirm that the deal was still on for just after 7:00 p.m.

[42] At 6:32 p.m., Mr. Lu messaged DC Smith to say, “they will see me at 9 p.m. by St. Clair and Keel St.” DC Smith responded, “Kk and ull [sic] have it?” Mr. Lu replied, “Yes you can meet me around there at that time.”

[43] At 8:49 p.m., Mr. Lu sent a Signal message to DC Smith, saying “Hey bro I’ll be by Keel & St. Clair in 15 minutes.”

[44] At 9:08 p.m., Mr. Lu parked at a McDonald’s at the intersection of Keele and St. Clair. He parked next to a white Honda with license plate CDKC202. Mr. Lu got out of his vehicle and into the passenger seat of CDKC202, then returned to his vehicle. He got out of his vehicle, entered the passenger seat of CDKC202 a second time, then returned to his vehicle and left the parking lot. His interaction with the white Honda lasted approximately one minute.

[45] The police followed CDKC202 away from the parking lot. It had a female driver with longer hair. It drove to the underground parking garage of a building at 2490 St. Clair Avenue West. The license plate CDKC202 was registered to an individual named Zehra Sevim, with a mailing address of 110-2490 St. Clair West.

[46] Mr. Lu then went mobile in the parking lot and travelled to Scarborough Town Centre. At 9:48 p.m., DC Smith arrived at the parking lot and met with Mr. Lu inside his black Acura, license plate CEAY973. After a brief conversation inside the vehicle, Mr. Lu then handed DC Smith a grey plastic bag, which in turn contained a lighter bag filled with a dark substance. DC Smith returned to his vehicle at 9:55 p.m. and drove away.

c. Movements of Mr. Doan

[47] At 9:25 p.m., DC Smith left 120 Harbourside Drive to travel to the meeting location. At 9:32 p.m., Mr. Doan left 120 Harbourside driving a white SUV, license plate BRAM679. That vehicle was registered to Mr. Doan.

[48] At 10:03 p.m., Mr. Doan arrived at Scarborough Town Centre in the white SUV with license plate BRAM679. At 10:05 p.m., the black Acura CEAY793, driven by Mr. Lu travelled through the parking lot to meet with BRAM679. The two vehicles drove off together, with Mr. Lu in the lead. They parked side by side near the Bay.

[49] At 10:11 p.m., Mr. Lu got out of CEAY793 and leaned into the passenger side of BRAM679. He then got back into CEAY793. Mr. Lu left Scarborough Town Centre parking lot. He drove to 3525 Kariya Drive. At 11:00 p.m., he parked in spot 309 on P4 – the parking spot associated with Unit #309.

[50] Mr. Doan drove back to 120 Harbourside Drive.

d. Contents of the Plastic Bag

[51] The bag provided by Mr. Lu contained 506 grams of a purple substance that tested as fentanyl.

May 14, 2019 - Fentanyl Purchase

[52] On May 14, 2019, DC Smith arranged to purchase half a kilogram of blue fentanyl from Mr. Doan. DC Smith and Mr. Doan agreed on a price of $39,500 for the fentanyl.

[53] Over the course of May 14, 2019, the police observed the movements of Mr. Lu and Ms. Sevim. They saw Ms. Sevim visit a Popeye’s Chicken restaurant and come out carrying a white plastic bag with the Popeye’s Chicken logo on it. They then saw Ms. Sevim meet with Mr. Lu. Mr. Lu finally met with DC Smith, and gave him blue fentanyl in a brown Popeye’s Chicken bag. A detailed description of the events is set out below.

a. Movements of Ms. Sevim

[54] At 3:16 p.m., Ms. Sevim departed from 2490 St. Clair Avenue West driving the white Honda with license plate CDKC202. At 4:04 p.m., the Honda pulled into a Sobey’s parking lot with its hazard lights on. Ms. Sevim and her passenger got out of the car and entered the Sobey’s. After eating, they exited the Sobey’s at 4:53 p.m. and approached a tow truck in the parking lot. They boarded the truck, which towed the Honda out of the parking lot.

[55] The tow truck towed the Honda to a garage on Cayuga Avenue at 5:35 p.m. Ms. Sevim and her passenger retrieved some items from the Honda and went to the front desk of the garage.

[56] At 5:35 p.m., Mr. Doan advised DC Smith by Signal Message that the deal would have to wait until the next day, because the “driver” was having car trouble.

[57] At 6:47 p.m., Ms. Sevim left the garage driving the white Honda. She returned to 2490 St. Clair West at 6:55 p.m. At 6:58 p.m., Ms. Sevim drove back out of 2490 St. Clair West in the white Honda. At 7:00 p.m., Ms. Sevim parked near a Popeye’s Chicken restaurant. She entered the restaurant, then returned to the Honda and got into the driver’s seat carrying a white plastic Popeye’s bag. She then got back out of the driver’s seat carrying a black bag, which she placed in the trunk of the Honda before driving out of the parking lot.

b. Meeting Between Zehra Sevim and Thanh-Hai Lu

[58] At 7:19 p.m., Ms. Sevim parked at a Tim Horton’s at Keele and St. Clair. At 7:29 p.m., Mr. Lu, driving the Acura CEAY793, parked in the same parking lot.

[59] Ms. Sevim drove the white Honda to a different part of the parking lot. At 7:32 p.m., Mr. Lu got out of his vehicle and walked up to the passenger side of the white Honda, carrying a shoulder bag. He then walked away from the white Honda carrying a brown paper bag, rolled up.

[60] Ms. Sevim left the parking lot. The police surveillance team followed her to several locations and ultimately back to 2490 St. Clair at 8:58 p.m.

c. Arrangements for the Transaction Finalized

[61] At 7:46 p.m., Mr. Doan messaged DC Smith saying “She’s kn,” “Come”, indicating that the deal could proceed and that Mr. Lu now had the fentanyl. He asked DC Smith to message “buddy” to set up a meeting, and asked DC Smith to come to his home to provide him the money.

[62] Mr. Lu messaged DC Smith and asked him to meet at the CAA center, 7575 Kennedy Road South, by 10:15 p.m.

[63] At 9:05 p.m., DC Smith met Mr. Doan at 120 Harbourside Drive and gave him $39,500 in marked buy money. At 9:08 p.m., DC Smith left 120 Harbourside Drive.

d. Meeting at the CAA Center

[64] Mr. Lu left the parking lot after his meeting with Ms. Sevim. At 8:05 p.m., he entered the parking lot of the CAA Center. He parked and took a bag of hockey equipment into the building.

[65] DC Smith exchanged Signal messages with Mr. Lu, who instructed him to meet in the parking lot of the CAA Center. At 10:07 p.m., DC Smith arrived at the CAA Center. He stopped his vehicle beside Mr. Lu, who approached the driver’s side. Mr. Lu passed a white bag containing a brown paper bag to DC Smith through the driver’s window of DC Smith’s vehicle. DC Smith left the parking lot.

[66] At 10:14 p.m., DC Smith gave the white bag provided by Mr. Lu to DC Marsh. DC Marsh opened the white bag. Inside was a brown paper bag with a Popeye’s Chicken logo. Inside that paper bag was a plastic Popeye’s bag. In that bag were chunks of a blue substance. The weight of the blue substance and the plastic Popeye’s bag was 494 grams. Samples of the substance tested as a mixture containing fentanyl and heroin.

Arrest of Thanh-Hai Lu

[67] On June 18, 2019, Mr. Lu was arrested. Officers located him driving the Acura with license plate CEAY793 and followed him to a plaza at the intersection of Burnhamthorpe and Hurontario Streets in Mississauga. A search of Mr. Lu incident to arrest located the following items on his person and in a satchel he was carrying:

a. $2,115.00 CAD; b. 5 cell phones; c. A set of Acura keys; d. A driver’s license in the name of Thanh-Hai Lu; e. A license plate permit for plate CEAY793 in the name of LU, THANH-HAI, JACKSON; f. A car insurance card in the name of Thanh-Hai Lu; and g. A Costco membership card in the name of Thanh-Hai Lu.

[68] A second search of Mr. Lu’s satchel revealed a small baggie containing 1.2 grams of MDMA.

[69] Mr. Lu’s Acura was searched and a set of keys with a fob were found in the glove box.

Execution of the Search Warrant at 1912-3525 Kariya Drive

[70] At approximately 9:39 p.m., police officers executed a search warrant at Unit 1912, 3525 Kariya Drive. The apartment was unlocked using the keys found in the glove box of Mr. Lu’s Acura.

[71] Unit 1912 is an apartment consisting of a living room, a kitchen, a den, a bedroom, and a bathroom. There was no one inside when the police entered.

[72] DC Esposito searched the living room and found the following items in a false book on a shelf in the living room:

a. A valid passport in the name of Thanh-Hai Lu; and b. $1,058.00 USD.

[73] DC Esposito searched a hollow shelf in the living room. It contained the following:

a. 567 grams of cocaine in a Tupperware container; b. 207 grams of MDMA in a Tupperware container; c. 8 grams of ketamine in a sandwich bag; d. 0.5 grams of cocaine in a sandwich bag; e. 623 grams of cutting agent in various containers; f. A working black digital scale; and g. Mixing bowls and a glass spoon.

[74] DC Van Staalduinen searched the kitchen and located a hydraulic press under the breakfast bar in the kitchen.

[75] PC Stewart searched the den area. He located:

a. Drug packaging in a blue grocery cart; b. Drug packaging in the computer desk; and c. Digital scale on top of the computer desk.

[76] PC Turner searched the bedroom and found the following:

a. Three cell phones and a laptop in a nightstand; and b. A zebra-patterned bag containing 1012 grams of cutting agent.

[77] DC Wesseling located and photographed the following documents:

a. An Alectra utility bill addressed to Hai Lu at 3525 Kariya Drive, Unit 1912, in a table near the breakfast bar in the kitchen; b. A notice of rent increase for 1912-3525 Kariya Drive, addressed to Thanh-Hai Lu Jackson, advising of an increase on January 1, 2018; c. An Intact Insurance bill addressed to Thanh-Hai Lu at 699 Mirage Place, Mississauga; d. Two government cheques made out to Hai Lu at 699 Mirage Place; e. A 2018 Tax Return Summary in the name of Hai Lu of 699 Mirage Place; f. A Federal Jacket Outline for the year 2013, addressed to Hai Lu of 699 Mirage Place, with a date of birth of January 20, 1985. That is Mr. Lu’s date of birth; g. A cheque made out to “Hai on Homes”; and h. A 2015 Tax Return Summary addressed to Cuong Quoc Nguyen of 32 Marlington Crescent, North York.

[78] In addition to the above, police also located a money counter and a vacuum sealer.

[79] After the officers left Unit 1912, they searched storage unit 38 at 3525 Kariya Drive. The storage unit was opened with the keys obtained from Mr. Lu’s Acura. A barrel containing cutting agent was located inside.

Resident Information #1912, 3525 Kariya Drive, Mississauga

[80] Pursuant to a Production Order obtained January 31, 2019, the police obtained the Resident Information and Lease Agreement for #1912, 3525 Kariya Drive, Mississauga.

[81] Commencing September 1, 2017, Thanh-Hai Lu was listed as the tenant of Suite #1912. Parking Spot #309 and Locker #38, Room 1, on the P4 Level as part of the title of Suite #1912.

Possession for the Purpose

[82] Acting Detective Sergeant Brad Corner #3347 of the Durham Regional Police Service, Intelligence Branch, has prepared an expert report in respect of this matter. Det./Sgt. Corner’s qualifications and the contents of his report have been admitted. For greater certainty, Thanh-Hai Lu admits that if possession is made out, the cocaine and MDMA seized from his residence located at 1912-3525 Kariya Drive on June 18, 2019, were consistent with being possessed for the purpose of trafficking.

C. Additional Trial Evidence

[83] In accordance with the agreement reached by counsel, the agreed statement of fact was supplemented with focussed viva voce evidence from DC Cameron Smith, the undercover officer, and Det./Sgt. Brad Corner, the qualified drug expert. In order to allow for narrative and context, the viva voce evidence covered some of the same ground as that set out in the agreed statement of fact.

i. Detective Constable Smith

[84] According to DC Smith, the investigation in this matter commenced in August 2018. The target was a person named Dat Doan. Initially, DC Smith purchased marijuana directly from Mr. Doan. This happened on four occasions.

[85] On November 27, 2018, DC Smith purchased marijuana and MDMA from Mr. Doan. DC Smith did not receive these drugs directly from Mr. Doan. Instead, he retrieved them from the trunk of Mr. Doan’s vehicle where they had been placed by another person.

[86] By January 2019, DC Smith had built up a rapport of trust with Mr. Doan. He had met with him on many occasions. He had attended Mr. Doan’s workplace and home and met his wife and children.

[87] DC Smith and Mr. Doan used a messaging app called Signal for the purpose of communicating. The settings on the app caused messages to be deleted after a period of time. DC Smith would take screens shots of the messages sent and received in order to preserve a copy.

a. January 10, 2019 – Cocaine Purchase

[88] According to DC Smith, he arranged to purchase ½ kilogram of cocaine from Mr. Doan on January 8, 2019. Money was exchanged but the deal did not go ahead as planned. On January 10, 2019, DC Smith was directed to attend at the McDonald’s on Ellesmere Road. He had communications with a person he believed would be delivering the drugs and was given a more precise location and description of who he was to meet. The person communicating with DC Smith was Mr. Lu.

[89] DC Smith entered Mr. Lu’s vehicle and engaged Mr. Lu in polite and friendly small talk. They talked about the traffic and Mr. Lu advised that he was coming from Mississauga. DC Smith handed over a bag containing $15,000 in cash, consisting of two bundles – one of $10,000 and one of $5,000. The bag was not sealed and its contents could be readily examined. DC Smith advised Mr. Lu that there was $15,000 in the bag in two bundles and invited him to count it. Mr. Lu declined indicating that he trusted it. Mr. Lu showed very little reaction when presented with the money. He appeared “low-key.”

[90] Mr. Lu brought up the fact that the order had been placed three days prior and he apologized for the delay. DC Smith asked about the delay in terms of “streamlining” future buys and Mr. Lu replied that he would be “good” for whatever DC Smith wanted with a day or two notice.

[91] Mr. Lu handed over a bag containing ½ kilogram of cocaine. DC Smith mimicked the act of smelling and asked Mr. Lu if the contents of the bag were “proper.” According to DC Smith he did this to portray interest in the quality of the drugs provided. Mr. Lu replied words to the effect that DC Smith should be pleased with the quality. He further noted that the product was the “apple version.”

[92] During this meeting, DC Smith made reference to his relationship with Mr. Doan, noting that he had known him for a long time and that he was “good shit.” Mr. Lu agreed.

[93] The package containing the drugs was later inspected by police and it was discovered that the cocaine was imprinted with a facsimile of the Apple logo.

[94] In cross-examination, DC Smith agreed that he had no idea what the reference to the “apple version” meant to Mr. Lu. He agreed that it was possible that Mr. Lu had just been told to say that by someone else. He also agreed that when viewed in the context of a purchase and sale transaction, Mr. Lu’s response that the item was “proper” was the only reasonable answer that would be given in that context.

b. February 21, 2019 – Cocaine Purchase

[95] On February 20, 2019, DC Smith met Mr. Doan at a pub. The purpose of the meeting was to arrange a further purchase of ½ kilogram of cocaine. Following some small talk, DC Smith advised that he had $10,000 to pay towards the ½ kilo. Mr. Doan then started to make telephone calls. One of the calls appeared to relate to making arrangements for the delivery of the drugs. DC Smith mentioned that he had a good relationship with Mr. Lu and believed he was “straight up.” Mr. Doan said that the drugs would arrive later that day and that Mr. Lu might be the driver, but he was not certain.

[96] In text messages that followed, Mr. Doan told DC Smith “Got 9 right now trying for another.” DC Smith understood this as a reference to 9 ounces or a ¼ kilogram of cocaine. In a later text message, Mr. Doan advised DC Smith that the deal would happen the next day. He also instructed DC Smith to bring him “the files” before you go meet “buddy.” DC Smith understood this to mean that he was to pay Mr. Doan before meeting up with Mr. Lu.

[97] That same day, DC Smith received a text from Mr. Lu asking what time he wanted to meet tomorrow. In this text exchange, Mr. Lu states “there’s 9 for u tmr and I should have another coming in coupe days.” DC Smith believed this text referenced the discussion he had with Mr. Doan about 9 ounces of cocaine.

[98] On February 21, 2019, DC Smith arranged to meet Mr. Lu at a bbq restaurant in Pickering. DC Smith then travelled to the restaurant and met with Mr. Lu in Mr. Lu’s vehicle. According to DC Smith, Mr. Lu was apologetic for only being able to get 9 ounces. He told DC Smith that he “had 7 left after this pack” and that he didn’t want “to stretch it too much.” In drug lingo, DC Smith understood the reference to “pack” as a “9-pack” or ¼ kilo. He further understood that the reference to not wanting to “stretch” what he had left was a reference to wanting to provide good service. Mr. Lu said he would be picking up a “full one” tomorrow and asked if DC Smith wanted to wait. DC Smith said he would take what was available. DC Smith also told Mr. Lu that he had given Mr. Doan the “paper” or money for the transaction. Mr. Lu then handed over a green pencil case with a plastic baggie inside. DC Smith opened the bag and briefly looked inside. The appearance and weight was consistent with 9 ounces.

[99] During this meeting, DC Smith raised the issue of future transactions. He asked Mr. Lu why it was such an issue to get a ½ kilogram. Mr. Lu apologized and said he was between orders at the time.

c. March 28, 2019 – Attempt to Purchase Cocaine

[100] On March 28, 2019, DC Smith attempted to purchase a ½ kilogram of cocaine from Mr. Doan for an agreed upon price of $28,500. DC Smith went to Mr. Doan’s residence and gave him the money. He then exchanged a number of texts with Mr. Lu about meeting up. Mr. Lu advised “I don’t have it on hand yet”, and then “Hey bro I should have it on hand around 930.” Eventually, Mr. Lu directed DC Smith to attend at the area of McCowan Road and Steeles Avenue.

[101] At 9:28 p.m., Mr. Lu sent a text stating “….this unit is no good” and “Im trying to exchange it now.” Further texts stated “This one is so soft” and “like dust.” At 10:03 p.m., DC Smith spoke with Mr. Lu on the telephone. Mr. Lu advised that he was not happy with the quality of the drugs obtained and that he did not want to do the deal that night. Mr. Lu also said he was trying to exchange the ½ kilo. At 10:08 p.m., Mr. Lu called back and advised that was trying to get a ½ kilogram but wasn’t sure he could get it that night. While Mr. Lu did not use the word “cocaine” or “drugs”, he used the words “unit” and “full one”, which DC Smith understood as coded language for cocaine.

[102] In later texts that evening, Mr. Lu advised DC Smith that he was not able to get the drugs and that his “main guy will have tomorrow.” He also apologized. The deal did not materialize on the next day.

d. April 16, 2019 – Purchase of Heroin/Fentanyl

[103] On April 16, 2019, DC Smith’s objective was to purchase ½ kilogram of heroin/fentanyl. At approximately 10:30 a.m., he sent a text to Mr. Doan stating “Grape?” According to DC Smith, “grape” was coded language for purple opiate which was a mixture of fentanyl and heroin. Mr. Doan replied, “Yep half case.” They discussed a price of $39,000, which included a profit of $2,000 for Mr. Doan.

[104] DC Smith and Mr. Doan met at a Jack Astor’s pub. They discussed the past cocaine purchases and discussed who would be involved in this purchase. DC Smith said “same guy” meaning Mr. Lu, and Mr. Doan said “yes.”

[105] While at the pub, Mr. Doan received a call from someone who he spoke to in an Asian dialect. After the call, Mr. Doan said that “the driver” was getting “it” for $37,000 and that Mr. Doan wanted each to make $1,000 on the deal. DC Smith asked if he had been talking to “the driver” and Mr. Doan replied affirmatively. DC Smith agreed in cross-examination that he did not know whether Mr. Lu ever received the stated share of the money from Mr. Doan.

[106] Later that evening, DC Smith and Mr. Lu made arrangements to meet near the Scaddabush restaurant in Scarborough. When they met, DC Smith entered Mr. Lu’s vehicle and they engaged in some small talk. They talked about “purple” and “blue”, which DC Smith believed was coded language for different mixtures of heroin and fentanyl. Mr. Lu said he had heard that “blue” was better than “purple”, though it was also more expensive. In cross-examination, DC Smith agreed that Mr. Lu’s response did not appear direct or knowledgeable on the subject.

[107] Mr. Lu then handed over a grey grocery bag which had been in the center console of the vehicle. Inside the outer bag was a clear plastic bag. DC Smith felt the content and noted that there were numerous pieces of substances inside the bag, unlike the cocaine which was in one piece. Mr. Lu advised that he needed to wait for Mr. Doan to arrive on scene. DC Smith inferred that this was because Mr. Doan had the money for the purchase.

e. May 14, 2019 – Heroin/Fentanyl Purchase

[108] On May 14, 2019, DC Smith sent a text to Mr. Doan looking for ½ case of “grape.” Mr. Doan advised that only “blue” was left. They discussed a price of $39,500 and discussed making $1,000 each on the deal. Mr. Doan made a reference to “buddy” making $1,000, which DC Smith understood to be a reference to Mr. Lu.

[109] That evening, DC Smith and Mr. Lu met very briefly at the CAA Centre hockey arena. They had no drug related conversation and Mr. Lu provided a plastic pro store hockey bag which had within it a brown bag containing ½ kilogram of fentanyl/heroin.

ii. Acting Detective Sergeant Brad Corner

[110] Det./Sgt. Brad Corner was qualified to give expert evidence on the pricing, packaging and trafficking of drugs including cocaine, fentanyl and heroin. His report and CV were included as exhibits to the agreed statement of fact.

[111] In terms of fentanyl, he explained that he has observed several different colours of fentanyl for sale with the colours often representing degrees of potency. In his experience, he noted white, red, green, blue and purple fentanyl. He noted that he had never seen powdered cocaine coloured, though on a couple occasions he had observed coloured crack cocaine.

[112] In terms of drug pricing, he explained that he had seen the price of a kilogram of cocaine ranging from a low of $40,000 to a high of $70,000 depending on various factors such as the bulk purchase price, the quantity available and the relationship between the dealer and the buyer.

[113] He agreed that the price for a ½ kilogram of cocaine was a little more than the price of a full kilogram divided by two. Lastly, he agreed that $15,000 for a ½ kilogram of cocaine would be an incredible deal.

D. The Applicable Legal Principles

[114] Mr. Lu is presumed innocent of each and every count in the indictment. As in all criminal cases, the onus rests entirely on the Crown to prove each count beyond a reasonable doubt. Mr. Lu has no onus to prove anything and is not required to testify or call any defence evidence.

[115] Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[116] Proof of likely or even probable guilt is not enough to sustain a criminal conviction. Conversely, proof to a level of absolute certainty is also not required as that standard is impossibly high. Ultimately, in order to convict Mr. Lu of an offence, I must be sure that he committed the offence. If I am not sure, I must acquit him of that offence or find him guilty of a lesser and included offence, as the case may be.

[117] Where the evidence in relation to an offence or an essential element of an offence is circumstantial, the Crown must prove that the defendant’s guilt is the only reasonable inference available, see: R. v. Villaroman, 2016 SCC 33. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible, but the line between speculation and reasonable inference may be, at times, difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason. The analysis must be based on the totality of the evidence before the court, see: R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81.

[118] If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence, as the case may be. An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible conceivable inference. However, an inference inconsistent with guilt does not need to arise from “proven facts”, see Villaroman, supra, at para. 35 and R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and/or the absence of evidence.

[119] In terms of the offence of trafficking, the actus reus of the offence requires that the Crown prove beyond a reasonable doubt that Mr. Lu “trafficked” the controlled substance particularized in the indictment. The definition of “traffic” found in s. 2(1) of the Controlled Drugs and Substances Act includes “sell”, “give” and “transfer.” In this case, it is admitted that Mr. Lu committed the actus reus of each of the trafficking offences.

[120] The mens rea of trafficking requires that the defendant have knowledge that the item being trafficked is a controlled substance. The defendant does not need to know that the item being trafficked is the specific drug particularized in the indictment. As the Court of Appeal states in R. v. Williams, 2009 ONCA 342, at para. 19:

In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment, provided the accused knew the drug was a narcotic -- for example, the actual drug involved is cocaine whereas the accused believed it to be hashish, or is LSD but was believed to be mescaline: see R. v. Burgess, 1969 467 (ON CA), [1970] 2 O.R. 216, [1969] O.J. No. 1582 (C.A.); R. v. Blondin, 1970 1006 (BC CA), [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), affd 1971 1411 (SCC), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566; R. v. Custeau, 1971 682 (ON CA), [1972] 2 O.R. 250, [1971] O.J. No. 1893 (C.A.); R. v. Kundeus, 1975 161 (SCC), [1976] 2 S.C.R. 272, [1975] S.C.J. No. 78. In Burgess, at p. 217 O.R., Brooke J.A. said:

[We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment.

[121] I pause to note that in his closing submissions, Mr. Lafontaine invited the court to conclude that even if the Crown has proven that Mr. Lu had knowledge of the fact that he was trafficking in a drug, the Crown has failed to prove that he knew he was trafficking in fentanyl and fentanyl/heroin in relation to the two later transactions with the undercover officer.

[122] If the Crown has proven beyond a reasonable doubt that Mr. Lu knowingly trafficked a Schedule I substance, it “is of no moment” that he believed it to be cocaine, when in fact it was fentanyl. That said, proof of knowledge of the specific drug alleged to have been trafficked may be an issue for sentencing, see: R. v. N.H.(C.), 2002 7751 (ONCA).

[123] I do not read anything in R. v Saunders, 1990 1131 (SCC), [1990] 1 S.C.R. 1020, as changing the mens rea required for the offence of trafficking. Saunders was a case where the defendant was charged with conspiracy, not trafficking. The Crown alleged a specific conspiracy to traffic one type of drug, and there was evidence of the defendants’ involvement in a separate conspiracy to traffic in a different drug. Indeed, one of the co-accused took the witness stand and gave evidence in which he admitted his involvement in the other conspiracy, but denied his involvement in the conspiracy with which he was charged. In those circumstances, where the nature of the drug had been used to identify the particular conspiracy that had been charged against the defendants, the Supreme Court held that the Crown was required to prove the conspiracy as particularized in the indictment.

[124] Lastly, Mr. Lafontaine drew the court’s attention to the dicta in Kundeus and R. v. Couture (1976), 1976 1386 (ON CA), 33 C.C.C. (2d) 74 (Ont. C.A.), which stand for the proposition that once the Crown establishes the actus reus of the offence of trafficking, a “rebuttable presumption” of mens rea arises and it rests with the defendant to point to evidence or lead evidence that displaces the presumption. This issue can be addressed very briefly. The Crown made no attempt to rely on any “rebuttable presumption” of intent. Instead, the Crown argues that it has tendered sufficient evidence to establish that the only reasonable inference based on the evidence as a whole, is that Mr. Lu knew he was trafficking in an illicit substance when he met with DC Smith and handed over the packages of drugs. As such, even assuming that the passages cited from Kundeus and Couture reflect the current state of the law, which is debatable, the concept of a “rebuttable presumption”, be it legal or evidential, does not arise in this case. The Crown is not inviting me to rely on any such presumption, and I will not do so. Rather, I will approach this case on the basis that it is the Crown’s burden to prove all of the essential elements of the actus reus and mens rea beyond a reasonable doubt.

[125] I turn next to the offences of possession for the purpose of trafficking. I note that in relation to the counts alleging possession for the purpose of trafficking of cocaine and MDMA, there is no issue that if the Crown can prove beyond a reasonable doubt that Mr. Lu possessed these drugs, the further inference that he possessed them “for the purpose of trafficking” can readily be drawn on the criminal standard of proof. The expert evidence, which was unchallenged on this issue, amply supports the conclusion that anyone possessing these drugs in the quantities involved and in the circumstances wherein the drugs were discovered, could only have done so for the purpose of trafficking them. Conversely, with respect to the count involving ketamine, I note again that the Crown concedes that the evidence does not support the inference that Mr. Lu, if he possessed these drugs, did so for the “for the purpose of trafficking.”

[126] Where the Crown alleges that the defendant is in possession of an item, including in constructive possession, it must prove beyond a reasonable doubt that the defendant had both knowledge of and control over the item. In R. v. Choudhury, 2021 ONCA 560 at para. 19, Jamal J.A. (as he then was), provides the following summary of the applicable legal principles:

[19] The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.

• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 2002 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.

• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

E. The “Count on Count” Application of the Evidence

[127] I turn next to the issue of “count on count” application of the evidence. In closing submissions, the Crown argued that Mr. Lu’s knowledge should be assessed on the totality of the evidence before the court and not solely on the evidence relating to each count. The Crown did not give formal notice of its intention to seek cross-count admissibility of the evidence as discussed in R. v. Tsigirlash, 2019 ONCA 650 at paras. 26-27.

[128] While the defence does not specifically object to the absence of notice, it argues that cross-count inferences do not assist the Crown in imparting knowledge on Mr. Lu, and even if they do, they at best suggest that he believed he was trafficking in cocaine and not fentanyl.

[129] In my view, I see no prejudice to the defence caused by the absence of a formal notice of application. First, this is an instance where the evidence to be considered was already before the court and the Crown essentially made an informal application to have the evidence considered across counts on the issue of knowledge at the outset of its closing submissions. Second, the defence had a fair opportunity to respond following the completion of the Crown’s closing submissions and was given time to prepare and file its closing arguments in writing, see: R. v. T.B.L., 2003 35769 (ON CA) and R. v. Graham, 2015 ONCA 113. Third, this is not an instance where the defence specifically objects to the cross-count consideration of the evidence, instead the defence advances an argument regarding the weight to be given to that evidence. Having said that, I note that in Tsigirlash at paras. 26-27, the Court of Appeal observed that formal notice is required by the Criminal Proceedings Rules and further, that proper notice serves to assist the defendant in responding and the court in assessing what is often a complex issue.

[130] Turning to the merits, the general rule is that evidence in relation to one count is presumptively inadmissible on another count, see: Tsigirlash, supra, at para. 23. The onus rests on the Crown to satisfy the court that, on a balance of probabilities, the probative value of the evidence on a particular issue outweighs its prejudicial effect, see: R. v. Handy, 2002 SCC 56.

[131] The starting point for assessing the relevance and probative value of proposed similar act evidence is to identify what the similar acts are, the issue on which the similar acts are to be used and the inferences the evidence is tendered to support, see Handy, supra, at paras. 69-74, and R. v. Shearing, 2002 SCC 58 at para. 38. The “principal driver” of the probative value assessment is the connectedness or nexus between the similar act and the offence in question, see R. v. Durant, 2019 ONCA 74 at paras. 87-88. Relevant factors in assessing the relevance and probative value of the evidence include:

a. The proximity in time of the other acts; b. The extent to which the other acts are similar to the conduct charged; c. The number of occurrences; d. The circumstances surrounding the similar acts; e. The distinctive features unifying the acts; f. Intervening events; and, g. Any other factors which would tend to support or rebut the underlying unity of the similar acts.

See Handy, supra, at para. 82.

[132] The degree of similarity required to warrant admission is context specific and depends on the purpose for which the evidence is sought for admission. Where the evidence is tendered to prove identification, a high or “striking” degree of similarity is often required to warrant admission. Where, however, the evidence is tendered for another purpose such as proving the actus reus of an offence, admissibility may be warranted even in the absence of a “striking” degree of similarity, see Tsigirlash, supra, 2019 ONCA 650 at para. 31, R. v. Cresswell, 2009 ONCA 95 at para. 9. Ultimately, the issue is whether there exists a persuasive degree of connection between the similar act evidence and the offence charged, see Shearing, supra, at paras. 48 and 60.

[133] The prejudice assessment examines whether there is a risk that the proposed evidence invites impermissible moral and/or reasoning prejudice. In a judge alone trial, where the proposed similar act evidence stems from a multi-count indictment, the risk of prejudicial reasoning is significantly attenuated, though not altogether extinguished, see Tsigirlash, supra, at para. 38, and R. v. MacCormack, 2009 ONCA 72 at paras. 56, 68-69.

[134] The final stage of the analysis involves balancing the probative value against the prejudicial effect of the evidence. The absence of a potential prejudicial effect to the similar act evidence does not simply make it admissible. The evidence must have sufficient relevance and probative value to warrant admission. As well, at the admissibility stage, the issue is not whether the similar act evidence is conclusive of the issue or issues in question. The ultimate weight and use of the evidence is determined at the conclusion of the case, in the context of the evidence as a whole.

[135] The issue on which the Crown seeks to apply the similar act evidence is proof of Mr. Lu’s knowledge. In essence, the Crown position is that evidence demonstrating Mr. Lu’s knowledge of the nature of the substance he trafficked on January 10, 2019, is also relevant to establishing his knowledge in relation to the subsequent drug transactions, building from the second transaction through to the third and on to the final transaction.

[136] I note at the outset of my analysis that the indictment in this case involves four instances of trafficking involving the same central players. The allegations, viewed broadly, are that the undercover officer, DC Smith, would arrange a drug deal with Mr. Doan and Mr. Lu would then provide the drugs. The four instances of drug trafficking could have been alleged in one broad count of trafficking in Schedule I substances. If the Crown had chosen to pursue one broad count of trafficking, this issue would have been moot as all the evidence would have been presumptively admissible.

[137] In R. v. Sahaidak, [1990] O.J. No. 3228 at paras. 148-152 (Ont. H.C.), Doherty J., (as he then was), considered the use of evidence across counts on the issue of knowledge in a multi-count fraud indictment. Justice Doherty held as follows at paras. 150-152:

In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings, and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant to one count is admissible on the other counts as well. [Citation omitted]

In this case, Mr. Sahaidak’s knowledge of the fraudulent nature of the transactions is the central issue. In my view, evidence of his involvement in and knowledge of any of these transactions is relevant to a determination of his state of knowledge on the other transactions.

[138] The analysis from Sahaidak was approved of in R. v. Kirk, 2004 7197 (ON CA), and applied in a number of cases including R. v. Babbar, 2017 ONCJ 862 at para. 196.

[139] The analysis is apt in this case. The four trafficking counts are closely related, essentially forming part of one larger transaction. There is no issue that Mr. Lu delivered significant quantities of cocaine, fentanyl and fentanyl/heroin to the same undercover officer on four separate occasions over a number of months. There is also no issue that the undercover officer and Mr. Lu developed a working relationship over this period of time. Lastly, there is no issue that the same general modus operandi was applied in each instance, though I accept that money was given to Mr. Lu on only one of the four occasions. The modus operandi was that the parameters of the drug transaction were set between Mr. Doan and the undercover officer, and then Mr. Lu would then provide the drugs to the officer.

[140] I am satisfied that as a matter of logic and common sense the issue of Mr. Lu’s knowledge should be assessed across counts. The facts that support a finding of knowledge in relation to the first instance of trafficking are clearly relevant to and probative of whether Mr. Lu had the requisite knowledge on the second through fourth instances of trafficking, given the fact that they were undertaken in the same general circumstances and involved the same players. Simply stated, the evidence forms the context within which the assessment of knowledge is best determined. Indeed, it would be entirely artificial to consider Mr. Lu’s knowledge in relation to the second (or third or fourth) transaction without considering the evidence of the earlier transaction(s). If the Crown can prove that Mr. Lu knew at the time of one of the earlier transactions that he was on that occasion providing a controlled substance to the undercover officer, this plainly bears on the issue of whether he also knew this during the subsequent transactions, or whether he was at the very least sufficiently aware of this likelihood to perceive the need to make further inquiries about the nature of the transaction.

[141] While not related to a specific count in the indictment, I note that the evidence relating to the cancelled cocaine transaction in March of 2019, was tendered without objection. In submissions, the Crown argues that this evidence relates generally to Mr. Lu’s knowledge about the nature of the substances he was delivering to the undercover officer. I agree. While this evidence falls outside the specific counts alleging instances of trafficking, it falls within the same general or broad series of transactions and interaction between Mr. Lu and the undercover officer, and is admissible for the same reasons as the cross-count evidence.

[142] While I am prepared to consider the evidence count on count, I propose to do so with the following caveats. First, while the evidence may be admissible across counts, the findings in relation to one count are not dispositive of the remaining counts. In other words, I must still consider each count and decide whether the Crown has proven each count beyond a reasonable doubt. More precisely, a finding that the Crown has met its burden on the first trafficking count, does not mean that the Crown will have inevitably met its burden on the three remaining trafficking counts.

[143] Second, the evidence across counts is only relevant to establishing Mr. Lu’s knowledge of the contents of the packages he was delivering. The evidence cannot be used to establish that Mr. Lu is the type of person who engages in drug trafficking and is therefore more likely to have committed the offences. In relation to the evidence of the cancelled March deal which did not result in a charge, I should not use that evidence to conclude that Mr. Lu is deserving of punishment and therefore should be convicted of the offences before the court.

F. Co-conspirator’s Exception to Hearsay Rule

[144] I turn next to addressing the Crown’s application for substantive admissibility of certain text messages sent by Mr. Doan to DC Smith. The initial set of text messages proposed for admission are contained in a volume that has been marked as Exhibit “A” on these proceedings. During submissions, the Crown provided a document listing a narrowed set of text messages that it seeks to have admitted. The document will be marked as a lettered exhibit for completeness.

[145] It has been long accepted that statements made and acts done by persons engaged in a common unlawful design are admissible against all persons acting in concert for the truth of their contents, so long as the statements and/or acts were done while the common unlawful design was ongoing and were in furtherance of the common unlawful design. The traditional rationale for the exception is that each member of a common unlawful design has implied authority to speak or act on behalf of the others, see R. v. Bogiatzis, 2010 ONCA 902 at para. 34. The rule applies to substantive offences as well as conspiracies, see: Koufis v. The King, [1941] 1 S.C.R. 481.

[146] The three-stage test for admissibility is set out in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938. At the first stage, the court is to determine whether the Crown has proven beyond a reasonable doubt that a conspiracy or common unlawful design exists. All of the evidence is considered at this stage including the alleged hearsay utterances. At this stage the hearsay utterances are provisionally admitted as circumstantial evidence proving the existence of the conspiracy, see R. v. Puddicombe, 2013 ONCA 506 at para. 112.

[147] At the second stage, the court must consider only the evidence directly admissible against the defendant to determine whether the defendant is a probable member of the conspiracy or common unlawful plan. Where there is no evidence, apart from the hearsay statements connecting the defendant with the conspiracy, this part of test will not be satisfied, see R. v. Baron and Wertman (1976), 1976 775 (ON CA), 14 O.R. (2d) 173 (C.A.) at p. 544. While the hearsay utterances are not considered substantively at this stage of the analysis, the acts and statements of the defendant are considered in context with hearsay utterances only to the very limited extent necessary to permit a contextual assessment of the defendant’s acts and statements, see R. v. Gagnon, 2000 16863 (ON CA) at para. 62 and R. v. Wang, 2013 BCCA 311 at paras. 51-65. In doing so, caution must be exercised so as to prevent collapsing the first stage of the analysis with the second stage.

[148] At the third stage of the analysis, the court, in deciding whether the defendant’s guilt has been established beyond a reasonable doubt, is permitted to consider the acts and declarations of any co-conspirators to the extent that any such acts or declarations were made “in furtherance” of the conspiracy or common unlawful enterprise.

[149] I turn next to my analysis and findings. At the first stage of the analysis, the Crown alleges that Mr. Doan, Mr. Lu and others were engaged in an ongoing conspiracy to traffic in Schedule I drugs, including cocaine and fentanyl. The Crown does not allege separate conspiracies in relation to cocaine and fentanyl.

[150] I reject the defence submission that the Saunders decision requires the Crown to prove a conspiracy in relation to the specific substantive counts as particularized. Saunders involved a situation where the evidence showed that there were two separate conspiracies, each with different participants, one directed at importing cocaine from South America and the other directed at importing heroin from India. The Crown had opted to prosecute the two conspiracies separately and had used the nature of the drug that was the subject of each conspiracy as a means of identifying which conspiracy was being charged against which defendants. In these circumstances, the Crown was obliged in each prosecution to prove that the defendants were members of the specific conspiracy that had been charged, rather than the other conspiracy that was being prosecuted in a different proceeding.

[151] Moreover, there is no legal requirement that the conspiracy or common unlawful enterprise alleged for the purpose of the co-conspirator’s exception to the hearsay rule match the specific substantive charge on the indictment as particularized. Where there is only a substantive charge before the court, the co-conspirator hearsay analysis does not relate to proof of the charge itself. Rather, the analysis relates to the admissibility of evidence in support of the charge. A broad conspiracy that lasts over a period of time may provide evidence in support of a number of substantive charges alleged to have occurred during the course of the conspiracy. As such, I reject the submission that the Crown must prove, at a minimum, a conspiracy to traffic in cocaine and a conspiracy to traffic in fentanyl.

[152] The Crown argues that the evidence of a conspiracy is overwhelming. The defence argues that the Crown has failed to prove the existence of a conspiracy. More particularly, the defence submits that the Crown has failed to prove “a meeting of the minds” between Mr. Doan and Mr. Lu. On this issue, the defence notes that it is not enough for two persons to pursue the same unlawful object at the same time or in the same place, what is required is a consensus to effect an unlawful purpose, see: R. v. Cotroni (1979), 1979 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C).

[153] When I consider the whole of the evidence before me, I am readily satisfied beyond a reasonable doubt that Mr. Doan, Mr. Lu and others were engaged in a common unlawful enterprise to traffic Schedule I drugs, including cocaine and fentanyl. That conspiracy was in effect by January 10, 2019 and continued until the arrest of the parties.

[154] The evidence establishes that Mr. Doan handled the initial requests for drugs from DC Smith. The discussions with Mr. Doan related to the type of drug, pricing and quantity. Mr. Doan placed DC Smith in contact with Mr. Lu who then handled the balance of the deal. The timing of the communications and interactions between DC Smith and Mr. Doan, and then DC Smith and Mr. Lu, permit only one singular inference – that they were working in concert to achieve the same goal. The probability of coincidence that Mr. Lu would happen to contact the undercover officer and offer to meet him just as Mr. Doan suggested, and then provide the drugs that had been discussed with Mr. Doan, undermines any reasonable suggestion that they were simply two persons pursuing the same unlawful object.

[155] As well, several of Mr. Lu’s comments contain direct references to comments made by Mr. Doan to the undercover officer, supporting the inference that they were working together. For example, on January 10, 2019, Mr. Lu makes reference to the delay in completing the transaction, which was a topic of discussion between Mr. Doan and DC Smith. As well, during that same meeting between DC Smith and Mr. Lu, DC Smith makes a specific reference to Mr. Doan which was acknowledged by Mr. Lu.

[156] Similarly, on February 20, 2019, DC Smith attempts to purchase ½ kilogram of cocaine but is advised by Mr. Doan that only 9 ounces are available. Mr. Lu later texts DC Smith and states “Theres 9 for u tmr.” Further, when DC Smith and Mr. Lu meet, Mr. Lu apologizes for not being able to get the full amount requested.

[157] On March 28, 2019, DC Smith made an arrangement with Mr. Doan to purchase ½ kilogram of cocaine for $28,500. Mr. Lu is then in communication with DC Smith to arrange for delivery. Mr. Lu then explains that he is not happy with the quality of the product he has obtained and the deal is postponed.

[158] In terms of the two final transactions involving fentanyl, I note that on April 8, 2019, Mr. Doan provided DC Smith with samples of “purple” and “blue” fentanyl contained in a flashlight. On April 16, 2019, DC Smith made an arrangement to purchase ½ kilogram of “purple” from Mr. Doan. The drugs were supplied by Mr. Lu. The timing of the various surveillance observations in context with the text messages clearly support the singular inference that Mr. Doan and Mr. Lu are acting in concert to provide the drugs. The same applies to the transaction on May 14, 2019.

[159] While I note that the observations in relation to the fentanyl transaction reveal that Mr. Lu obtained the drugs from Ms. Sevim, I do not see this as altering the analysis. I am satisfied that Ms. Sevim appears to have joined the conspiracy or was participating in her own conspiracy with Mr. Lu, or with Mr. Lu and Mr. Doan. In any event, it does not matter as it does not change my finding that Mr. Lu and Mr. Doan were engaged in a conspiracy to traffic in Schedule I drugs.

[160] I should also note that the evidence suggesting that Mr. Lu was only a possible “driver” in relation to the February 21, 2019 delivery, does not leave me with a doubt as to the existence of a conspiracy between Mr. Doan and Mr. Lu. First, it was Mr. Lu who actually provided the drugs and not someone else. Second, a conspiracy does not only arise where its members agree to engage in fixed roles. In other words, the mere fact that Mr. Lu may or may not have been the driver on one occasion does not automatically undermine the existence of a conspiracy.

[161] Turning to stage two of the analysis, I am also readily satisfied that Mr. Doan was probably a member of the conspiracy. I reach this conclusion based on the following evidence:

a. During the January 10, 2019 meeting between Mr. Lu and DC Smith, Mr. Lu apologizes for the delay in providing the package. He also discusses future transactions and suggests that on 2 or 3 days notice, he will be “good” for whatever DC Smith wants. During this meeting he received $15,000 in cash and is told it is in two bundles. He declines to count the money saying he “trusts” it. He provides a ½ kilogram of cocaine to DC Smith. When these comments and actions are viewed in context with discussions between Mr. Doan and DC Smith, they support a finding that Mr. Lu was probably a member of the conspiracy at this time.

b. In terms of the February 20/21, 2019 transaction, Mr. Lu advises DC Smith by text that he has 9 ounces and can get more “in a couple days.” When they meet up, Mr. Lu apologizes for the delay in obtaining the 9 ounces which he then provides to DC Smith. Minutes after the delivery of the drugs to DC Smith, Mr. Lu travels to a location on Kingston Road where he meets Mr. Doan who appears to leave a gift bag in his car. Again, when these comments and actions are viewed in context with the discussions between Mr. Doan and DC Smith, they further support a finding of probable membership.

c. I consider the cancelled deal on March 28, 2019. Mr. Lu clearly suggests that he is not happy with the quality of the product, which he describes as “soft….like dust” and explains that he is attempting to get a better supply. When these comments are viewed in context with the discussions between Mr. Doan and DC Smith, they further support a finding of probable membership.

d. In relation to the April 16, 2019 transaction, Mr. Lu advised DC Smith that he was meeting his “guy” to pick up the drugs at 9:00 p.m. around Keele St. and St. Clair Avenue. He had sent texts earlier that day indicating that he had hoped to meet his guy at 7:00 p.m. At 9:08 p.m., Mr. Lu drove to the McDonald’s at the intersection of Keele Street and St. Clair Avenue where he was observed to interact with a vehicle driven by a person believed to be Ms. Sevim. At around 9:20 p.m., DC Smith attended at Mr. Doan’s residence and gave him $39,000 in buy money. At 9:26 p.m., DC Smith contacted Mr. Lu and arranged to meet him. Mr. Lu then traveled to meet DC Smith near the Scarborough Town Centre and he provided the drugs. At 10:03 p.m., Mr. Doan was observed arriving at the Scarborough Town Centre and parking near Mr. Lu. Both vehicles then drove a short distance away and parked side by side. Mr. Lu got out of his vehicle and leaned into Mr. Doan’s vehicle, then departed. This evidence taken as a whole readily supports a finding of probable membership on the part of Mr. Lu.

e. Lastly, in terms of the May 14, 2019 transaction, Ms. Sevim was observed exiting a Popeye’s Chicken restaurant carrying a white plastic Popeye’s bag into her car, and she was then observed to exit the car carrying a black bag which she placed into the trunk. She then drove to another location, where she met with Mr. Lu. At that location, Mr. Lu walked up to her car carrying a shoulder bag, then he walked away from her car carrying a brown rolled up paper bag. Later that evening, Mr. Lu arranged to meet DC Smith at a hockey arena. At approximately 9:05 p.m., DC Smith met with Mr. Doan and gave him $39,500 in buy money. At 10:07 p.m., DC Smith met with Mr. Lu at the hockey arena. Mr. Lu passed a white bag containing a brown paper bag to DC Smith through DC Smith’s open window. When this evidence is viewed in context with the interactions between DC Smith and Mr. Doan, it clearly supports a finding of probable membership.

f. I note that a person may be a member of a conspiracy without knowing the exact details of the scheme, the parties involved or their respective roles. All that is required is that defendant be aware of the general nature of the scheme and agree to adhere to it, see: R. v. Y.(N.), 2012 ONCA 745 at para. 89. Bearing this in mind, and noting that at this stage I only need to be satisfied on a balance of probabilities based on the evidence directly admissible against Mr. Lu, I am prepared to find that Mr. Lu was a probable member of a conspiracy to traffic in Schedule I substances along with Mr. Doan and others.

[162] In terms of the third stage of the analysis, I find that the statements made by Mr. Doan are all classic statements made “in furtherance” of a common unlawful enterprise. There is no argument otherwise. As such, I am prepared to consider Mr. Doan’s statements in assessing whether the Crown has proven each charge beyond a reasonable doubt.

G. Analysis and Findings on Specific Counts

Count 1 – Trafficking Cocaine – January 10, 2019

[163] The context for the January 10, 2019 transaction is important. DC Smith and Mr. Doan had already engaged in a number of successful transactions for softer drugs. They then reached an agreement for the purchase of ½ kilogram of cocaine on January 8, 2019. The deal was for $28,500 with a down payment of $15,000. The deal was delayed.

[164] On January 10, 2019, Mr. Doan advised DC Smith that “buddy” would have the cocaine “in his hands” by 8:00 p.m. He also advised DC Smith that he was trying to get him, i.e. “buddy”, to meet up at a closer location. The communication was then handed over to Mr. Lu, who then texted DC Smith to arrange a meeting at a closer location.

[165] When DC Smith meets Mr. Lu in the McDonald’s parking lot, they engage in a brief discussion during which:

a. Mr. Lu apologizes for the delay in completing the transaction and states that he heard the order was placed three days prior; b. Mr. Lu provides ½ kilogram of cocaine. DC Smith mimics smelling the product and asks whether “it is proper.” Mr. Lu responds affirmatively, suggesting words to the effect that DC Smith will be satisfied with the product; c. Mr. Lu describes the product as “the apple type” and upon later inspection the cocaine appears stamped with an Apple logo; d. Mr. Lu is told that he is receiving $15,000 in two bundles, one of $10,000 and one of $5,000. He declines an offer to count it, suggesting that he “trusts it;” e. Mr. Lu discusses future transactions and states that he would be “good” for whatever DC Smith wanted within two or three days notice; and, f. When DC Smith brings up Mr. Doan, Mr. Lu acknowledges the reference.

[166] When I consider this evidence as a whole, I am readily satisfied that Mr. Lu knew he was trafficking a controlled substance. The combined effect of all of the evidence on this issue leaves no other reasonable inference. This is not an instance where a reasonable inference arises that Mr. Lu was acting as a blind courier merely delivering an unknown package, or that he affirmatively believed he was delivering something other than illegal drugs. Mr. Lu’s conduct and comments reveal that he was acting in concert with Mr. Doan and that the deal unfolded as agreed between Mr. Doan and DC Smith.

[167] Moreover, Mr. Lu makes a number of comments, particularly the comment “apple type”, that support a very clear inference that he knew exactly what he is providing, in view of the evidence that the drugs he was delivering were, in fact, embossed with an Apple logo. His comments further suggest that he was cultivating an ongoing business relationship. Viewed in context, I am not prepared to find that these are the types of comments that Mr. Lu may simply have been instructed to make in his role as a blind courier.

[168] Lastly, I am not prepared to find that the amount of money provided to Mr. Lu, which was much less than the value of the drugs, supports an inference that he was merely acting as a courier. It is clear that Mr. Doan and Mr. Lu were acting in concert during this transaction. DC Smith told Mr. Doan that he would give the deposit to Mr. Lu and Mr. Lu received it without issue. An inference arises that the amount was understood as agreed upon and acceptable as between the parties.

Count 2 – Trafficking Cocaine – February 21, 2019

[169] The context for the February 21, 2019 transaction starts on February 20, 2019, with DC Smith attempting to set up another deal with Mr. Doan for ½ kilogram of cocaine. During the initial part of the discussion, Mr. Doan suggests that Mr. Lu might be the driver. Eventually, Mr. Doan tells DC Smith that he has only 9 ounces available but that there could be more if he was willing to wait. DC Smith states that he is prepared to proceed.

[170] In his first communication with DC Smith about this deal, Mr. Lu makes specific reference to 9 ounces stating, “Theres 9 for u tmr and I should have another coming in couple days.” On the next day, Mr. Lu meets with DC Smith and provides 9 ounces of cocaine. He apologizes for not being able to get ½ kilogram and explains that he is “in between orders.” He further explains that he has “7 left” after this “pack” but that he would be picking up “a full one” the next day if DC Smith wanted to wait. Mr. Lu explains that he does not want to “stretch” what he has. I accept the evidence that a “pack” is drug lingo for 9 ounces or ¼ kilogram.

[171] The evidence on this count is overwhelming. The only reasonable inference is that Mr. Lu is knowingly providing 9 ounces of cocaine. Viewed in context, he is apologizing for not being able to provide the full ½ kilogram. He explains that he does not want to stretch the amount he has remaining for this purpose as the quality would suffer. He offers DC Smith the choice to wait until he has the full ½ kilogram available. He hands over the drugs once DC Smith tells him that he has provided Mr. Doan “the paper.”

[172] I do not view Mr. Doan’s initial comments regarding the possibility of Mr. Lu being “the driver” as supporting an inference that Mr. Lu was potentially one of a number of blind couriers. Mr. Lu’s own comments put to rest any suggestion that he was a blind courier.

Count 3 – Trafficking Fentanyl - April 16, 2019

[173] The context for the April 16, 2019 transaction involves DC Smith arranging to buy a ½ case of “grape” through Mr. Doan, meaning purple fentanyl. Some days prior, on April 4, 2019, Mr. Doan provided samples of purple and blue fentanyl to DC Smith.

[174] Mr. Doan and DC Smith arranged a price and the money was provided to Mr. Doan in advance. Mr. Doan and DC Smith then met for lunch during which Mr. Doan indicated that Mr. Lu would be “the driver.”

[175] Mr. Lu then sent a message to DC Smith advising that he would be meeting his “guy” around 7:00 p.m., and then in further messages changed the time to 9:00 p.m. Police surveillance reveals that Mr. Lu met with the female driver of a white Honda shortly after 9:00 p.m. and then travelled to meet DC Smith. While the female driver was not specifically identified, the vehicle she was driving is registered to Ms. Sevim – who was later seen driving the same vehicle during the May14, 2019 transaction.

[176] At approximately 9:20 p.m., DC Smith delivered $39,000 to Mr. Doan’s residence. He then travelled to meet Mr. Lu where he received a ½ kilogram of purple fentanyl. Further police surveillance then showed Mr. Doan then travelling to meet briefly with Mr. Lu.

[177] During the interaction between Mr. Lu and DC Smith, Mr. Lu was asked if “purple” was better than “blue.” Mr. Lu said he “didn’t know”, but then mentioned that he heard that “blue” was better but it might be more expensive. He was not able to provide specifics regarding any difference in quality or in price between “purple” and “blue” at that time.

[178] When the evidence surrounding this transaction is viewed in context, it is clear that Mr. Doan brokered the deal between Mr. Lu and DC Smith. Mr. Lu obtained the fentanyl from another party, delivered it to DC Smith, and then met with Mr. Doan to get the money that had been provided by DC Smith to Mr. Doan.

[179] I am readily satisfied that Mr. Lu was fully aware that he was obtaining and delivering a Schedule I substance. When the evidence is viewed in context, there is no reasonable possibility that Mr. Lu was simply a blind courier delivering an unknown package. By this stage in the relationship between the parties, the evidence that Mr. Lu knew he was providing Schedule I substances to DC Smith is overwhelming. That evidence includes the earlier transactions for cocaine. In addition to those transactions, I find that the text messages relating to the cancelled March 28, 2019 transaction further demonstrate that Mr. Lu is aware of the nature of the product he is providing. In these messages, he clearly cancels the deal because he does not want to provide an inferior product that he views as “soft…like dust.”

[180] As it is not relevant to determining whether the Crown has proven the charge against Mr. Lu, I will not consider at this stage whether the evidence establishes that Mr. Lu subjectively knew that he was trafficking in fentanyl when he provided a ½ kilogram of “purple” to DC Smith on April 14, 2019. I invite counsel to make any further submissions they wish on this issue at the sentencing hearing.

Count 4 – Trafficking Fentanyl/Heroin – May 14, 2019

[181] In terms of the final transaction on May 14, 2019, the context is similar to the April 16, 2019 transaction. DC Smith and Mr. Doan agree to a price of $39,500 for ½ kilogram of “blue.” Mr. Lu travels to meet Ms. Sevim, where he obtains a brown rolled up paper bag. Ms. Sevim had earlier left a Popeye’s Chicken restaurant carrying a white plastic bag with a Popeye’s Chicken logo on it. Mr. Lu then goes to a hockey arena. When DC Smith arrives at the arena to meet with Mr. Lu, he is provided a white plastic bag with a hockey logo of some sort on it. Inside the plastic bag is a brown paper bag with a Popeye’s Chicken logo on it. The brown paper bag contains ½ kilogram of heroin/fentanyl.

[182] Given the nature of the relationship between Mr. Lu and DC Smith, including the previous transactions and the cancelled transaction, the evidence supports the singular finding that Mr. Lu knew he was trafficking in a Schedule I substance. There is simply no other reasonable inference on the evidence.

[183] I again decline to determine at this time whether the Crown has proven beyond a reasonable doubt that Mr. Lu subjectively knew that he was trafficking fentanyl/heroin during this transaction. Counsel are invited to make any further submissions they wish on this issue at the sentencing hearing.

Counts 5-7 – Possession for the Purpose of Trafficking

[184] I turn lastly to the counts relating to the items found inside apartment 1912-3525 Kariya Drive in Mississauga. When I consider the totality of the evidence, I am satisfied beyond a reasonable doubt that the only reasonable inference is that Mr. Lu had knowledge of and control over the drugs found in the apartment. I reach this conclusion for the following reasons:

a. The lease for the apartment was in Mr. Lu’s name and commenced September 1, 2017. He was listed as a tenant and the lease included a parking spot and storage unit. The lease was obtained using a production order in January 2019, some five months prior to the search of the apartment. The defence suggests that in May 2019, when the apartment was searched, the lease information was out of date. I find that the lease documents provide some evidence of a connection between the apartment and Mr. Lu. Given the nature of the personal documents in his name that were found in the apartment, the observation of his travel from and back to the apartment building on February 21 and April 14, 2019, and his possession of the key and security fob for the apartment, as discussed below, I am not concerned that the lease documents are stale or outdated.

b. The key and security fob for the apartment were found in the glove box of his car following his arrest. On this issue, while the defence acknowledges that the key and security fob provide some evidence of a connection, the defence argues that I should take judicial notice of the fact that a second set of keys/security fob would have been issued by the landlord. The defence further posits that the existence of other sets of keys/fobs undermines a finding that Mr. Lu had exclusive possession of the apartment. Even assuming I could take judicial notice of the fact that a rental apartment would typically come with more than one set of keys (which I am not prepared to do), I do not see the possibility of a second (or third) set of keys as undermining the connection established. The Crown does not need to prove that Mr. Lu had exclusive access to the apartment. The Crown need only prove that he had knowledge and control over the drugs found in the apartment.

c. Mr. Lu’s valid passport was found, along with a quantity of cash, in a false book on a shelf of the living room. Various other documents connected to Mr. Lu were found in the apartment including: a utility bill in Mr. Lu’s name for the apartment, a rental increase notice, tax documents, an insurance document and cheques in Mr. Lu’s name but with an address of 699 Mirage Place in Mississauga. The fact that some of these documents appear to have been initially mailed to a different address gives rise to an inference that they were taken to the location where they were found. I further infer, given the nature of the documents and value of the cheques, that these were important documents and therefore intentionally retained by Mr. Lu in a location where he could have access to them. Taken together, the nature and location of these documents strongly supports a connection between Mr. Lu and the apartment, see R. v. Emes, 2001 3973 (ON CA). This conclusion is not diminished by the fact that only a small number of documents were found or the fact that one document was a tax return in another person’s name and address. On this last fact, I note again that the Crown does not need to prove exclusive possession of the apartment.

d. The apartment is relatively small and was obviously used as a residence. There was drug trafficking paraphernalia located throughout the apartment. The equipment included a money counting machine, two electronic scales, a vacuum sealer, a hydraulic press, drug packaging material and multiple cell phones. Significant quantities of cutting agent were also found, including a barrel of cutting agent in the locker room associated with the apartment. I accept that the police did not closely examine the clothing and non-drug related contents, apart from the documents, to determine whether the apartment’s contents could shed light on who was inhabiting the apartment. However, the manner in which the drug trafficking paraphernalia was stored and located through the apartment supports an obvious inference that drug trafficking activities were openly undertaken in the apartment.

e. On February 21, 2019, at approximately 12:32 p.m., Mr. Lu was observed to be driving out of the underground parking lot at 3525 Kariya Drive. At 6:43 p.m., after the drugs had been delivered to DC Smith, Mr. Lu was observed to travel back to 3525 Kariya Drive where he entered the underground parking lot. Similarly, on April 16, 2019, at approximately 5:33 p.m., Mr. Lu was observed departing from the underground garage at 3525 Kariya Drive. At 11:00 p.m., after the drugs had been again delivered to DC Smith and after Mr. Lu met with Mr. Doan, Mr. Lu returned to 3525 Kariya Drive and was observed to park his car in spot #309, which is the spot associated with apartment #1912. While I accept that no other surveillance evidence connecting Mr. Lu to the 3525 Kariya apartment building, or more specifically to Unit #1912, was tendered, I am prepared to find that the two instances observed show that Mr. Lu was departing from and returning to the apartment having delivered a significant quantity of drugs in the interim. I further note that Mr. Lu’s activities in delivering quantities of cocaine to DC Smith on January 10 and February 21, 2019, provide a further connection to apartment – which contained not only cocaine, but a hydraulic press, scales, cutting agent and packaging, see R. v. Lepage, 1995 123 (SCC), [1995] 1 S.C.R. 654 at paras. 36-38. The fact that the interactions between Mr. Lu, Mr. Doan and DC Smith appear to suggest that Mr. Lu is obtaining the cocaine from elsewhere does not detract from this finding. As indicated above, Mr. Lu’s comments relating to the quality of the product he has, including his concerns about “stretching the product”, suggest that he is involved in assessing, cutting and packaging the product.

f. I note that the drugs found in the apartment were hidden in a false shelf. However, I note that the value of the drugs found in the apartment ranges from a low of $38,000 to a high of $70,000 depending on various factors. It is not surprising that drugs of that value would be hidden. That said, given the relatively obvious presence of a significant amount of drug paraphernalia, I am not prepared to find that the concealment of the drugs undermines inferences of knowledge and control.

g. I note that on arrest, Mr. Lu was in possession of five cell phones and approximately $2,100 in cash. He also had 1.2 grams of MDMA on him. The police did not test the MDMA to see if it could be linked by analysis to the MDMA found in the apartment. The Crown argues that the small amount of MDMA in Mr. Lu’s personal possession is a further link with the apartment given that a much larger quantity of MDMA was found in the apartment. I am not prepared to rely on the presence of the MDMA for this purpose.

h. In weighing the evidence, I am cognizant that no single piece of evidence conclusively establishes knowledge and control. I am further cognizant that certain individual pieces, standing alone, have limited value in establishing knowledge and control. However, when I consider all the evidence as a whole, I am satisfied that the combined effect of all the evidence leaves but one reasonable conclusion - Mr. Lu was in possession of the drugs