COURT FILE NO.: CR-22-9-000102-0000; CR-22-0000103-000
DATE: 20220304
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
duc tung hoang
Defendant
Xenia Proestos, for the Crown
Alan Gold, for the Defendant
HEARD at Toronto: February 14-18, 2022
REASONS FOR JUDGMENT S.F. Dunphy J.
[1] Mr. Hoang was tried before me under two indictments. The first (CR-22-9-0000102-000) charges him with a total of eight counts of possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and two counts of possession of proceeds of crime over $5,000 contrary to s. 354(1)(a) and s. 355(a) of the Criminal Code. The second indictment (CR-22-9-0000103-000) charges him with unsafe storage of a tactical shotgun and shotgun shells contrary to s. 86(1) of the Criminal Code.
[2] More than sixteen kilograms of narcotics were found in Mr. Hoang’s vehicle stored in containers found in the rear cargo area of the vehicle and in a concealed “trap” compartment constructed into the console of the vehicle. This total included almost half a kilogram of Carfentanil, more than five kilograms of a heroin compound, more than seven kilograms of cocaine and more than three kilograms of heroin compounded with Fentanyl, Carfentanil or both. More than a quarter million dollars was found in tightly bound cash bundles stored in Mr. Hoang’s vehicle and in his home. Numerous items frequently associated with trafficking were found in his home or in his vehicle as well.
[3] Mr. Hoang admits only to being a delivery person involved in what he understood was a narcotics trafficking operation. He admits to receiving narcotics for delivery and then collecting and holding cash proceeds of that enterprise for his “employer” including the cash found by police in his home and in his automobile. He denies knowledge of the specifics of the transactions he effected and claims no knowledge of any of the narcotics stored in his vehicle.
[4] The Crown alleges that Mr. Hoang was much more than the low-level delivery man that he claimed to be. All of the evidence paints a consistent portrait of Mr. Hoang’s true role at the centre of a sophisticated trafficking operation carried on in his vehicles, at the remote parking spot he rented in another name, in his garage and in his home. Mr. Hoang is exactly the person he appears to be.
[5] There is no serious dispute about what the Crown found when search warrants were eventually executed upon Mr. Hoang, his home and his vehicles. Mr. Hoang has admitted possession but not ownership of the bundled sums of cash. He has admitted knowing that the money was proceeds of the trafficking enterprise he knew that he was involved in. How and when the various controlled substances came to be where they were found by police and Mr. Hoang’s state of knowledge in relation to each of them is very hotly disputed. The Health Canada test results of those substances are not contested, but the extrapolation of such results to untested substances of similar appearance and found in the same place is in dispute. Mr. Hoang has admitted that if possession of any of the substances found in his vehicle is proved beyond a reasonable doubt – possession being the essential element that he strongly disputes – then such possession was for the purpose of trafficking.
[6] Mr. Hoang testified in his own defence. He admitted control over the vehicle and home where the narcotics were found but denied knowledge of their presence or nature. If believed or if his testimony raises a reasonable doubt, I should be required to enter a verdict of not guilty in respect of the counts of possession of controlled substances for the purpose of trafficking because possession requires proof beyond a reasonable doubt both of control over and knowledge of the thing.
[7] The situation is different in respect of the funds found in Mr. Hoang’s vehicle and home (or the smaller amount found on his person) when he was arrested. He frankly admitted that these funds were proceeds of the sale of narcotics. While he does not admit to having completed such sales as principal, he admits that the cash found in his home and vehicle were proceeds of the sales of the “product” he delivered. He has offered no contest to the two proceeds counts and the uncontroverted evidence coupled with his admissions leave no room for doubt as to his guilt on those two counts at least.
[8] A much smaller volume of narcotics was found in the search of Mr. Hoang’s home. These items – six or seven small chunks – were found in a Ziplock bag located on a digital scale in a drawer in the laundry room of Mr. Hoang’s home. The photographic evidence and the oral evidence of Det. Johnston who found the items was that these substances appeared to be crack cocaine, heroin and MDMA among other things. The Crown has proved Health Canada test results consistent with those impressions of Det. Johnston but failed to adduce evidence from the Exhibit officer who seized these items, RCMP Officer Hulan, that he submitted the items depicted in Exhibit 13 to Health Canada for testing or evidence that might co-relate the Certificates received back from Health Canada to the substances he seized. Counts Seven, Eight and Nine charge Mr. Hoang with possession for the purpose of trafficking of Heroin, Cocaine and MDMA on July 18, 2018 (being the day that his home was searched). I cannot find that the Crown has proved that Mr. Hoang possessed such substances on July 18, 2018, beyond a reasonable doubt and a not guilty verdict for those three counts (Seven, Eight and Nine) will be entered.
[9] For the reasons that follow, I find that Mr. Hoang’s evidence in its material elements at least is little more than an artful weave of truth and fiction. Taken as a whole, his account layered implausible explanation upon implausible explanation. His evidence is neither credible nor does it rise to the level of creating a reasonable doubt concerning his knowledge of the narcotics that he clearly had in his direct control. The direct and circumstantial evidence tendered by the Crown is both credible and essentially uncontradicted save for Mr. Hoang’s testimony which I rejected. This evidence provides proof beyond any reasonable doubt that Mr. Hoang knowingly possessed each of the controlled substances found in the Acura, whether in the concealed “trap” or in the rear trunk area and that his possession was for the purposes of trafficking.
[10] Mr. Hoang’s home and vehicle yielded abundant evidence of a large-scale wholesale trafficking operation in which he played a central role. Mr. Hoang rented a secure underground garage parking space using the name of a friend. His vehicle and home both bore significant signs of their use in connection with trafficking: two cash counting machines, large amounts of bundled cash, multiple cell phones complete with anonymous accounts and passwords from “@encryptroid.com”, a vacuum sealing machine, large numbers of new and used latex gloves, Ziplock bags in multiple locations and distant from a kitchen, two digital scales, blending and mixing equipment set up in his garage, bulk cutting agent, a shotgun with a loaded magazine, several respirator masks, plates from a narcotics press to say nothing of multiple kilograms of heroin, heroin laced with Fentanyl and/or Carfentanil, cocaine and almost half a kilogram of Carfentanil.
[11] This is one case where things are just as they seem.
[12] This evidence and Mr. Hoang’s admissions also establish his guilt beyond a reasonable doubt of the two counts of knowing possession of the proceeds of crime in respect of the funds found in his vehicle during the July 17, 2018 search of that vehicle and in his home during the July 18, 2018 search.
[13] I attach no weight to the “I forgot they were there” defense offered by Mr. Hoang in relation to the two firearms charges. The gun case in which the shotgun was stored and the two shotgun shells were in plain sight and in areas of the vehicle that Mr. Hoang was observed interacting with on numerous occasions and in ways that could not have failed to bring the presence of both to his attention. The fact that the vehicle was left for extended periods of time in public places where it and its contents were visible and the fact that the vehicle containing both firearm and ammunition was used to conduct an illicit trafficking business are both evidence of unsafe storage of such items. Mr. Hoang is guilty on both counts charged.
[14] A verdict of Guilty shall be entered for each of the counts of the two indictments before me except Counts Seven, Eight and Nine of the first indictment and a date shall be set for sentencing. My more detailed reasons follow.
Factual Background
(a) The investigation
[15] Mr. Hoang was the object of a multi-month investigation of the Asian Organized Crime Task Force between March and July 2018. The investigation involved elements of several police forces including the RCMP, Peel Regional Police, the OPP and Toronto Police Services. The length of the investigation and the duration of the involvement of most of the witnesses with it enabled them to acquire a degree of familiarity with their subject and to recognize Mr. Hoang and his vehicles.
[16] My description in these reasons of locations, vehicles and persons (other than Mr. Hoang) will be general in nature to safeguard as far as reasonably possible the privacy of family, friends or neighbours who themselves face no allegations of wrongdoing.
(b) Vehicles and locations of interest
[17] During the police investigation that preceded his arrest, Mr. Hoang was observed driving three vehicles from time to time and in circumstances suggesting that they were being used in connection with a drug trafficking operation. These vehicles are (i) a 2016 Hyundai Tucson owned by Mr. Hoang’s spouse; (ii) a 2018 GM Sierra pick-up truck owned by Mr. Hoang; and (iii) a 2013 Acura MDX hatchback also owned by him. Each of these were driven by Mr. Hoang and used in connection with the trafficking operation that he admits to undertaking both before and during the period of most significant interest to this case: July 16 and July 17, 2018.
[18] At the relevant times, Mr. Hoang resided in Mississauga in a detached home near Dundas and Dixie he owned along with his spouse and her father. The home has a two-car garage which, while attached to the front of the house, is accessed from a side door on the walkway to the front door or from the double garage door facing the driveway and street. The home is a short distance from the Square One shopping mall where some relevant trafficking activities took place.
[19] Police had installed a covert surveillance video camera programmed to remotely capture activities taking place in the driveway area of the home. Police also had investigators on site surveilling the home from time to time and following vehicles leaving the home from time to time. It was an investigation of some size, scope and duration.
[20] Mr. Hoang admitted to renting (through a friend) a parking space in a controlled-access underground parking garage beneath a high-rise condominium located near Square One. He said that he did so on the instructions of his “employer” for use in the employer’s trafficking business. The parking space in question was partially visible from a nearby security camera installed in the underground garage (extracts of images captured by this camera were exhibits at the trial) and police had the space under covert surveillance from time to time as well as having access to the security camera footage. Mr. Hoang’s Acura was searched under a General Warrant at this location near midnight on July 17, 2018, and subsequently impounded and towed to a secure police garage where it was more extensively searched on July 19, 2018.
(c) Events before July 16, 2018
[21] Between March and mid-July 2018, investigators witnessed certain incidents involving Mr. Hoang that the Crown alleges provide evidence of Mr. Hoang engaging in the business of trafficking. There is little point in my reviewing each of these instances in depth. Mr. Hoang has provided an innocent explanation for some of them but also frankly admitted that he made frequent deliveries of what he understood to be drugs and picked up the proceeds of sale including on some of the occasions about which police testified. It matters little which of the instances police observed were in fact occasions where Mr. Hoang was engaged in trafficking and which were instances of innocent behaviour. There is no doubt that much of what police witnessed was precisely what they took it to be: Mr. Hoang engaging in the business of trafficking in narcotics. Whether he did so as a low-level, in-the-dark deliveryman or as the proprietor of a large-scale business is a different question and the one with which we are primarily concerned.
[22] The one take-away from police evidence of these incidents (including similar incidents during the July 16-17 time frame) is that Mr. Hoang was observed going about this illicit business – whether as deliveryman or proprietor – in each of the three vehicles with which police associated him. This conflicts to some degree with Mr. Hoang’s testimony that the Acura was purchased on behalf of his “employer” for the purpose of the trafficking business and wasn’t really his. He said that he did not want to use the Acura for his own business and this was the reason he bought the Sierra. Nevertheless, it was the Sierra that was found parked in the rented parking spot below the condominium building on the morning of July 17, 2018. The Acura spent the night parked in front of Mr. Hoang’s own home containing such personal-use items as a golf bag and golf cart. The bright line Mr. Hoang sought to draw between the use of his alleged “employer’s” vehicle and his own is not objectively visible.
[23] It is not possible from the evidence before me to assess which vehicle was more commonly used for the purposes of the trafficking activity. All three vehicles were observed driven by Mr. Hoang to what appeared to be pick-ups or deliveries and Mr. Hoang has admitted that at least some of them were just that. In particular, the black “Adidas” brand knapsack that Mr. Hoang said he commonly used for the purpose of receiving deliveries of narcotics, making deliveries of narcotics to clients and storing sales proceeds was observed by police in connection with his use of each of the three vehicles.
(d) Events of July 16-19, 2018
[24] The police surveillance camera watching the driveway of Mr. Hoang’s home was automatically activated to make recordings by motion detected in the area being observed. There were two relevant recordings made on July 16, 2018, that were introduced into evidence. Mr. Hoang was able to identify the individuals depicted in the clips and give his evidence of what he said was recorded. Police first observed both clips the following day and thus had no first-hand evidence with which to supplement the recordings.
[25] In the first segment recorded at 5:32 pm on July 16, 2018, a small white car is visible parked in the driveway before Mr. Hoang’s garage parked beside Mr. Hoang’s Acura. An individual identified by Mr. Hoang as “John” is observed exiting the smaller white car with a blue duffel bag carried in one hand. It is clear to me that the duffel bag contained items of sufficient volume and weight to make the bag appear relatively heavy and approximately one-third full. “John” proceeded towards the front door of the house where the side-door entrance to the garage is also located and was then briefly lost to view. Less than a minute later, “John” emerged from the walkway without the duffle bag and returned to his vehicle carrying a small plastic bag in one hand with unknown contents. Mr. Hoang does not appear in this video although he was able to identify “John” emerging from his car when testifying at trial and offered his own evidence as to what “John” was delivering.
[26] In the second segment recorded at 7:17pm the same day, Mr. Hoang is visible standing just inside the open door of the garage while it is raining outside. He is standing only a foot or two away from a box where two blue duffel bags were found during the police search of the garage the next day. About thirty seconds into the clip, Mr. Hoang is seen to hurry through the rain to the front passenger side door of the Acura. He is carrying something in his left hand that appears to be a blue duffel bag. Viewed in frame-by-frame mode, the bag itself appeared (as far as can be seen in the brief instant it is visible) to be the same size, shape and colour and bearing a similar-size load as the duffel bag carried by “John” in the earlier clip. The blue duffel bag was quickly (in two or three seconds) deposited by Mr. Hoang inside the Acura before he returned at a swift jog back to the shelter of the open garage bay door. Thereafter the garage door was closed and the rear lights to the Acura flashed a further two times consistent with being electronically locked.
[27] The next morning (July 17, 2018), the police team was on site observing Mr. Hoang’s home shortly after 9:00 am. Detective Johnston viewed the recorded video clips described above and, as a result, put the wheels in motion that resulted in additional surveillance assistance being called in, the request for a warrant and the “take-down” later that day and the next.
[28] At 10:23 am Officer Robitaille observed Mr. Hoang enter the garage by the side door. A few minutes later he emerged from the garage and proceeded to remove a golf bag and a golf pull cart from the Acura. A short while later, he removed an empty blue duffel bag. Officer Hulan on loan from the RCMP that day made similar observations. The removal of the duffel bag by Mr. Hoang from the front driver’s seat of the Acura was also recorded in a video clip.
[29] From the cross-examination of Mr. Hoang, my careful review of the three video clips recorded over less than 24 hours and the images of the state of the garage immediately prior to the police search on July 18, 2018, I conclude that the duffel bag carried by “John” in the first clip was the same duffel bag placed in the Acura by Mr. Hoang in the second clip and then removed by Mr. Hoang from the Acura and placed back in the garage the following morning in the third clip.
[30] I have considered but accord little credence to Mr. Hoang’s testimony suggesting what this surveillance evidence depicts. Mr. Hoang said that “John” was involved in the trafficking business. That admission by him I am prepared to credit – nothing he said beyond that has even the ring of truth. He said that “John” was delivering some garbage – used latex gloves and empty/used plastic Ziplock bags and vacuum bags –and that his “employer” had given him orders to dispose of this garbage. The garbage he referenced being delivered would not account for even a small fraction of the weight and volume clearly visible in the duffle bag “John” carried. Indeed, the garbage found during the search of the garage that Mr. Hoang identified as having been brought by “John” would have been almost weightless and could be compressed to fit inside an average pocket with little difficulty. The idea that “John” made a special trip to Mr. Hoang’s residence for such a trivial purpose on behalf of Mr. Hoang’s “employer” is absurd. The suggestion is no more credible than Mr. Hoang’s explanation that he was removing golf balls and other debris from the front seat area the next morning when he was seen exiting the front seat with the apparently empty duffel bag the next morning. The Acura was literally full of other debris that he left behind if he was seized of a sudden desire to clean out his vehicle.
[31] The Crown’s suggestion of a wholesale narcotics delivery by “John” transferred by Mr. Hoang to the secret “trap” storage area of the Acura on the other hand fits all the available evidence and is consistent with the overwhelming evidence of the large-scale wholesale trafficking enterprise that was found all around him.
[32] After depositing the duffel bag just inside the door of the garage, Mr. Hoang returned to the Acura and drove away. He was followed to a nearby strip mall where he made a visit to a gun shop and loaded two boxes into the rear of the Acura. He was then followed back to his home where he arrived just after 12:30 pm. Mr. Hoang’s evidence was that this visit was to acquire accessories for his (legal) gun collection. Nothing turns on the truth of his explanation.
[33] Mr. Hoang was observed by Officer Chant returning to his home at the wheel of the Acura and parking the vehicle on the street in front of his house instead of in the driveway. About ten minutes later, a man in a white Lexus came by, parked in the driveway, picked up Mr. Hoang and then drove downtown with him before returning him to the house at about 2:49 pm. Police followed Mr. Hoang during this interlude – nothing turns on the characterization of his activities during that time.
[34] At approximately 3:00 pm Officer Smith observed Mr. Hoang leave his home and enter the garage from the side door. He emerged soon afterwards with a black knapsack that he placed on the passenger side of the Acura before getting into the driver’s seat and driving away. I am satisfied based on this evidence, the evidence of Mr. Hoang’s observed use of a black “Adidas” brand knapsack both on earlier occasions and later that same day that the black knapsack observed by Officer Smith being deposited into the Acura was the same as the black Adidas knapsack observed on those other occasions.
[35] Detective Johnston followed Mr. Hoang after he left his home driving to the area of Square One shopping mall. Detective Johnston formed the view that Mr. Hoang was driving in a countersurveillance manner, performing a U-turn on a dead-end street at one point and looking all around him. Mr. Hoang was the lone occupant of the Acura.
[36] At approximately 3:30 pm police were on site inside the parking garage at the condominium watching the parking spot rented by Mr. Hoang. Mr. Hoang’s Sierra pick-up truck was parked in the rented space. He was observed by Officer Robitaille parking his Acura directly behind the pick-up truck. Mr. Hoang exited the Acura and entered the driver’s side of the pick-up truck driving it forward far enough to free up the rented parking spot. He then returned to the Acura and drove it forward into the parking spot thereby liberated. Over the next few minutes, the security camera and Officer Robitaille observed Mr. Hoang removing from the Acura what Mr. Hoang said were the same the two boxes that he had picked up in the gun store. These were placed in the cargo area of the pick-up truck (the cargo area had a cover and was thus fully enclosed). He also removed a large square cardboard box from the rear of the Acura and placed this in the Sierra as well. From the back of the Sierra Mr. Hoang removed a plastic pail with a Canadian Tire logo and a green cloth reusable shopping bag visibly packed with items and placed these in the back of the Acura. He removed a second plastic pail from the Sierra with an indistinct logo on its side and placed it in the back of the Acura as well. After retrieving some papers from the Acura, he drove away in the Sierra pick-up truck where he was seen arriving at his home by police a few minutes later. In total, Mr. Hoang spent approximately five minutes moving the vehicles and transferring items back and forth between them.
[37] I find that the cloth bag and the two pails Mr. Hoang was observed placing in the rear cargo area of the Acura were the same cloth bag and two pails observed by police in the rear of the vehicle when the Acura was searched later that night.
[38] After Mr. Hoang left the area, Officer Robitaille performed a visual inspection of the Acura and then went to the building’s security office to view the security camera footage. It is not clear whether police had eyes on the Acura without interruption from this point until Officer Leung testified that he arrived to relieve an unnamed officer who was observing the vehicle at about 6:00 pm. There is at all events no evidence that anyone other than police approached the Acura between 3:40 pm when Mr. Hoang drove away and approximately 6:00 pm when Officer Leung began his turn keeping the vehicle under observation. Surveillance was in place before Mr. Hoang arrived and was in place after he left. What is not clear is whether that surveillance was continuous. Given the gap in the evidence, I must infer that there is at least the potential of one or more gaps in police eyes on the Acura between 3:40 pm and some time prior to 6 pm. I am satisfied that Police had the Acura under constant surveillance thereafter until it was searched and impounded later that night or early the following morning.
[39] There is neither evidence nor suggestion that police introduced any items into the vehicle. I find highly implausible the suggestion by Mr. Hoang that his “employer” managed to approach the Acura unobserved and to fill the black Adidas knapsack left inside with drugs for delivery if indeed there was any gap in police surveillance of the vehicle given the evidence of surveillance in the area and inside the parking garage that was in place during that time frame. Implausible does not mean impossible. However, considering the totality of the evidence concerning Mr. Hoang’s dealings, the possibility is purely speculative and raises no reasonable doubt. There is nothing about Mr. Hoang’s description of his dealings with an “employer” that I found to be believable at all.
[40] Mr. Hoang’s evidence is that he was specifically instructed to place each of the three items (the two pails and the green cloth bag) in the back of the Acura to make the vehicle “look like it was in use” but that he had no idea what, if anything, was in any of the containers he transported from the Sierra to the Acura. The absurdity of the allegedly cosmetic purpose of the three containers was quickly brought to his attention on cross-examination. These items were already in the Sierra that was parked there before the Acura arrived, but were in stored a closed cargo area invisible to the public. Why would he have put them in the Sierra in the first place? Caught on the horns of a dilemma, Mr. Hoang’s story appeared to morph before my eyes. He now ventured the new piece of information that the employer also had access to the Sierra and had placed those three items in the Sierra prior to his arrival and without his having any idea what was in them.
[41] This testimony had every appearance of having been invented on the spot to explain away a circumstance that he had difficulty explaining in an innocent way. The problem with that explanation is that other video evidence from June 27, 2018, depicted Mr. Hoang transporting something back and forth between the same two vehicles in an apparently identical Canadian Tire pail. Indeed, Mr. Hoang had another apparently identical Canadian Tire pail in his garage as well. Coincidences are of course possible. This coincidence is just too convenient and too obviously the product of instant fabrication to be accorded any credibility.
[42] The idea that the Acura needed to be made to look “like it was being used” is at all events an absurd one. It is not as if the Acura had been sitting for days on end in the same spot in the garage. The Acura spent the night in front of Mr. Hoang’s home, not in the garage. The Acura was then five years old with approximately 100,000 kilometers on the odometer. The photos of the interior of the Acura taken by police during the search process make it quite clear that this vehicle was not driven by Marie Kondo. In the front seat area, the gear shift was festooned with rubber bands. The black knapsack that Mr. Hoang was seen to place there before leaving his home would have still been there until he removed it at approximately 6:40 pm. The back seat area was strewn with debris including some of the packing material from the inside of the gun case, a money counter in a box, a lint brush, various scattered documents, an empty water bottle and other detritus both on the seat and on the floor. The cargo area of the vehicle visible through the hatchback was similarly littered with empty Ziplock bags, a partly empty bottle, a jug of wiper fluid, a package of what appears to be garbage bags, a vacuum sealer and a flat brown gun case among other items. The three items added to the back of the Acura that afternoon and the knapsack added earlier did not make the vehicle stand out less to a casual observer – if anything they made it stand out more that it would have beforehand.
[43] If, as Mr. Gold urged me to infer, the three vessels were free of contraband when Mr. Hoang placed them in the back of the Acura, then Mr. Hoang’s “employer” would have to have managed to get access to the Acura unobserved by police in order to place a specific quantity of narcotics for an intended delivery later than evening in the knapsack plus depositing a bulk quantity of other narcotics and bulk cutting agent leaving all of this in containers sitting in plain sight in the back of a vehicle that was equipped with an elaborate secret compartment for the very purpose of storing narcotics securely and away from view. The employer would have done this secretly, neither advising Mr. Hoang nor providing him with any instructions about them. None of this is consistent with Mr. Hoang’s described role as a mere delivery person receiving packages for delivery to specified people with receipt of product and his delivery of it occurring at specified places and times. There is neither rhyme nor reason to these nor most of the actions attributed to the “employer” by Mr. Hoang when viewed in the context of all of the evidence.
[44] The green bag observed in the video being transferred to the Acura was of the same size and bulk as it had when searched by police later than night. The contents of the bag (described in detail below) are readily visible when it is sitting on a surface at rest before being picked up or after being put down – Mr. Hoang cannot have failed to have seen the contents of the green bag at the very least when he carried it from one vehicle to the other and his explanation that “it was covered” is simply false. The presence of the two Tupperware containers (both of which were later tested and found to contain heroin) should have been quite plain to even a casual observer.
[45] Mr. Hoang’s evidence about this event was implausible and I reject it entirely. The contents of the green cloth bag and the two pails inventoried when searched by police following the seizure of the Acura a few hours later and the contents of these same vessels when placed in the rear of the Acura by Mr. Hoang were the same. No third party introduced anything into any of them before they were searched by police.
[46] Mr. Hoang was observed by Officer Kulafofski arriving back at his home in his GMC Sierra pick-up truck shortly before 4:00 pm.
[47] At about 6:30, Officer Robitaille and Officer Chant were both in position observing the Acura parked in the same spot as before. Officer De Sousa was on post outside the parking garage. At approximately 6:40 pm, Officer De Sousa observed the Hyundai entering the parking garage of the condominium from the street. He could not see the driver. Shortly afterwards, Officer Chant saw the Hyundai entering the area of the underground where he was posted observing the Acura. He saw Mr. Hoang emerge and walk towards the Acura empty handed. He got into the driver’s seat. He spent almost three minutes sitting in the driver seat moving about in his seat. He then got out, walked over to the passenger side, removed the Adidas knapsack and walked away. The knapsack appeared to be heavy and carrying some volume. Mr. Hoang returned to the Hyundai and drove away.
[48] Mr. Hoang viewed the security video and said that the knapsack he retrieved from the Acura was indeed full of what he assumed was cocaine for a delivery he was to make that evening. The Crown takes no issue with that description but suggests that Mr. Hoang’s several minutes of activity in the front seat beside the area where the trap was located can be explained by Mr. Hoang removing the product for delivery from the trap and placing it himself in the Adidas knapsack. There was no need to spend all of that unexplained time that in the driver’s seat inches away from the concealed trap that was full of narcotics including cocaine if all he was doing was picking up a package for delivery prepared by his employer that was already sitting on the passenger seat ready to go. The Crown’s suggestion is consistent with all the evidence; Mr. Hoang’s is not.
[49] For the next period of time, Mr. Hoang was under police observation in the area of Square One. His own account of his activities in this time frame was that he made a delivery of the cocaine that had been placed in the black knapsack by his employer and received a bag of money in payment which he placed in the same black knapsack.
[50] At approximately 9:45 pm, the Hyundai was again observed driving into the parking garage. This time it parked only a couple of spaces away from the Acura. Mr. Hoang got out of the driver’s side of the Hyundai carrying the black Adidas knapsack and deposited it in the rear passenger seat area of the Acura. It was placed in such a way as to be barely visible (on the floor in the gap between the front and rear seats). He then returned to the Hyundai and drove away. Officer Hulan saw him arrive at his home and park the Tucson in the driveway shortly after 10:00 pm.
[51] At this time, the knapsack remained in the back seat of the Acura. It contained $118,000 tightly bundled and stored inside a single “No Frills” plastic shopping bag itself placed inside a second white shopping bag.
[52] Officer Sardella and Officer De Sousa were on site at that point with a General Warrant in hand waiting for a team to arrive to unlock the doors to the Acura in order to conduct a search. The team arrived and opened the doors shortly before midnight and the two officers began their search of the vehicle. The black Adidas knapsack was found and its contents – several bundles of currency – were photographed but not counted before being returned to the Adidas knapsack as they had found it. The back seat of the vehicle with the part of the foam filling from the gun case was photographed along with the loaded magazine and visible shell. The shotgun was found and removed from the case to be photographed before being restored to the case as it was found. Finally, the contents of the two pails and the green bag were removed, photographed and put back together more or less as they had been found.
[53] Seven samples of some of the contents of the two pails and the cloth bag were taken to be sent to Health Canada for analysis. Neither the photographs taken that night nor the officers’ notes permit the samples taken to be matched to contents of the pails or the green bag with any confidence.
[54] It is sufficient to note that the three containers appeared to contain a large volume – several kilograms of what strongly appeared to be narcotics plus a large amount of money. The decision was made to seize the vehicle and procure a specific search warrant. The doors were closed and sealed and the Acura was towed by a police tow truck to a secure facility where it was searched more systematically by Officer Huber and then Officers Hulan and Leung on July 19, 2018.
[55] Mr. Hoang was placed under arrest on July 18, 2018. At about the same time, his home was secured pending receipt of a search warrant. The warrant arrived and the search was conducted shortly after 6:00 pm. Extensive photographs were taken prior to commencing the search and then, as items of interest were located, photographs were taken of the items in situ prior to the items being handed over for seizure by the Exhibits Officer. Officer Hulan was the Exhibits Officer and he placed all of the seized items in secure lockers. They were not intermingled with items from other searches. The outcome of the searches is discussed in the next section.
[56] On July 19, 2018, Officer Huber was brought in to unseal the Acura in the secure police facility to which it was towed in the early morning hours of July 18, 2018. He was brought in to begin the search because police suspected that a hidden “trap” might be found in the Acura and Officer Huber has expertise in locating such things.
[57] Officer Huber soon located a secret compartment or “trap” that had been built into the console area in the front seat of the Acura between the driver and passenger seats. The trap was accessed from a false bottom created in the console that was sealed by means of a 12-volt electromagnetic lock. He did not discover how the lock was activated to open or shut the compartment – he had to force the trap open from the side. In his experience such triggers could be a separate device similar to a garage door opener or they could be actuated by a code such as a specific sequence of ordinary switches or buttons in the vehicle itself. The construction of the trap would, he estimated, take a qualified person three or four days to construct. Wiring would have to have been re-routed and the ducts feeding air to the back seat of the car would have had to be removed. It was an involved job.
[58] He took extensive photographs of the trap and its contents before turning the search over to Officer Leung. Officer Leung and Officer Hulan then took responsibility for photographing, bagging and taking samples of all items of interest found in the systematic search of the Acura. There was no issue taken with continuity of the samples taken by Officer Hulan and sent to Health Canada for analysis.
(e) Results of the searches
(i) Controlled substances found in rear of Acura
[59] The cargo area of the Acura contained the two plastic pails and the green cloth bag that were placed there by Mr. Hoang on the afternoon of July 17, 2018. The contents of the three containers were the same as when Mr. Hoang placed them in the Acura that afternoon. I reject any theory that person or persons unknown tampered with the contents after Mr. Hoang placed the three containers in the back of his Acura or indeed when they were sitting in the back of the Sierra before they were moved to the Acura. Absent Mr. Hoang’s evidence about an employer to whom he allegedly gave access to both vehicles – evidence I emphatically do not accept - such a theory could only be based on pure speculation unsupported by evidence or common sense.
[60] The second and smaller of the pails placed in the Acura proved to be a “Spring Morning” bulk laundry detergent pail. It contained another, smaller pail inside with a blue lid. These two nested pails were collectively found to contain three separate bags: an “Adidas.com” branded bright orange bag, a black and white “Sportschek” bag and a paper LCBO bag. Each of these in turn contained one or more bags containing approximately 2 kilograms in total of white tablets that were sampled, tested and found to contain caffeine. Caffeine is a potential “cutting agent” for narcotics and is a component of some of the other compounds found during the search.
[61] The Canadian Tire pail was found to contain two plastic bags:
a. The first bag was a vacuum sealed bag in which a second bag was found containing a grey pellet-like substance. It was found to weigh 896.04g and the sample tested by Health Canada came back as heroin, fentanyl and caffeine.
b. The second bag contained a grey powder in a blue-tabbed Ziplock bag. The bag was marked “500 Regular” with a Sharpie-type marker and was stuffed into two other similar Ziplock bags. The bag weighed 510.77g and was sampled and tested by Health Canada to contain heroin, caffeine and dimethyl sulfone.
[62] The green cloth bag was found to contain two blue latex gloves similar to the used latex gloves found in two places in the search of Mr. Hoang’s garage. There were also two Tupperware containers, one of which was in a blue-tabbed Ziplock bag, another similar Ziplock bag containing a grey pellet-like substance and four “bricks” of a brownish substance each of which was also in a separate Ziplock bag. The Ziplock bags were similar in appearance and colour to the unused ones seen on the floor in the cargo area of the Acura, the box of Ziplock bags found on the table at the back of the garage as well as the used Ziplock bags found in two other places in the garage. The following contents were found and/or tested:
a. The grey pellets were in a Ziplock with black sharpie marking and the numbers “430” on the outside found inside a second Ziplock. This was found to weigh 427.07g and a sample was tested by Health Canada to contain 33% heroin cut with caffeine and dimethyl sulfone.
b. One Tupperware container had an orange lid with a “star” and “960” inscribed on the outside in black sharpie marker. The container is an apparent twin (size, shape, lid colour) of a container found inside the gun room in the house. The grey powder contents were weighed at 973g and a sample tested to contain heroin cut with caffeine and dimethyl sulfone.
c. The second Tupperware container was identical to the first but with no writing on the lid and found inside a blue-tabbed Ziplock bag. The granular substance was found to weigh 158.74g and a sample was tested and found to contain heroin cut with caffeine and dimethyl sulfone.
d. The four bricks were very similar in appearance and packaging. In each case, the brick was found inside a Ziplock bag with a “moisture grabber” packet. Each was similar in size and shape, separately wrapped in a foil-like paper that revealed a dark brown, compacted substance when peeled open. Their weight and tested sample contents (where applicable) were as follows:
i. Brick 1: 1026.07g not tested;
ii. Brick 2: 979.84g, sample tested at 45% heroin cut with caffeine and dimethyl sulfone;
iii. Brick 3: 1005.64g not tested;
iv. Brick 4: 993.60g sample tested as heroin, Fentanyl, Carfentanil and an analogue of Fentanyl cut with caffeine and dimethyl sulfone.
(ii) Controlled substances found in “trap” of Acura
[63] The following controlled substances were found in the trap of the Acura after Officer Huber located it and forced it open:
a. An orange “Nike” brand plastic bag containing two vacuum sealed bags:
i. The first of these contained a whitish-yellow compressed disc or puck-shaped substance weighing 405.19g. No sample of this was sent to Health Canada.
ii. The second vacuum bag contained three similar-looking discs somewhat thinner than the disc in the first bag and weighing a total of 638.97g. A sample was taken from one of the discs in the package of three and was tested by Health Canada. It was found to contain cocaine.
b. A white plastic grocery bag with the logo of “Pat Supermarket” containing:
i. A smaller plastic bag itself containing a blue-tabbed Ziplock bag containing a second Ziplock bag (this one with a red tab) containing a brownish-grey powder. The powder was found to weigh 871.3g. A sample was sent to Health Canada and found to contain heroin and fentanyl cut with caffeine.
ii. Six compressed and wrapped bricks of a substance each vacuum sealed:
Brick #1 weighed 993.82g. The vacuum bag had red marker writing “VOSS CR07”. When the bag was opened and the wrapping peeled away, the contents was a white pasty-looking substance. The back of the brick had a large “CRO7” logo imprinted into it (i.e. pressed into the substance). No sample of this brick was sent to Health Canada.
Brick #2 weighed 989.45g. It too was found to contain a white pasty substance imprinted with the CR07 logo. A sample from this brick was sent to Health Canada and found to contain cocaine.
Brick #3 weighed 993.98g. It too was found to contain a pasty white substance imprinted with the CR07 logo. No sample from this brick taken.
Brick #4 weighed 991.15g. Once again, the contents proved to be a white pasty substance bearing the CR07 logo. A sample was taken and sent to Health Canada and found to contain cocaine at a concentration of 92%.
Brick #5 weighed 986.55g. Once again, the contents proved to be a white pasty substance bearing the CR07 logo. No sample from this brick was taken.
Brick #6 weighed 991.62g. It too contained a white pasty substance bearing the CR07 logo. A sample from this brick was sent to Health Canada was found to contain cocaine at a concentration of 93%.
iii. A vacuum sealed but unwrapped partial brick of a similar pasty-while substance weighing 504.52 g. A sample from this partial brick was sent to Health Canada and was found to contain cocaine at a concentration of 80%.
iv. A Ziplock bag (blue tab) with a black star symbol on the outside made with a sharpie marker. It contained a yellowish-white powder that weighed 494.09g. A sample was sent to Health Canada and found to contain Carfentanil and caffeine.
v. A vacuum sealed bag containing a brownish pellet-like substance. It was found to weigh 471.7g. A sample was sent to Health Canada and found to contain heroin and fentanyl cut with caffeine.
(iii) Cash proceeds found in Acura
[64] The black Adidas knapsack was found on the floor of the Acura between the two rows of seats on the passenger side. Inside was a plastic “No Frills” bag itself placed inside a second white plastic bag. The amount of this cash is admitted as $118,000.
(iv) Firearm found in Acura
[65] A semi-automatic 12-gage shotgun was found in a gun case in the rear cargo area of the Acura. It requires a loaded magazine to fire. A magazine loaded with two shells was found on the back seat in plain sight sitting on part of the foam insert from the gun case. The shotgun and one of the two shells were both tested and found to be operable. The shotgun was not equipped with a trigger lock.
(v) Trafficking-related paraphernalia found in the Acura
[66] The police search of the Acura revealed a number of items often found in relation to a trafficking business. These include:
(i) A currency counting machine in its box;
(ii) A number of loose rubber bands wrapped around the gear shift similar to those found wrapped around the bundles of cash found in the Acura and in the house;
(iii) A vacuum sealing machine in its box;
(iv) Unused blue latex gloves in the cloth bag similar to the used blue latex gloves discovered in the garage;
(v) Approximately two kilograms of caffeine tablets – a substance used in cutting narcotics – found in one of the pails;
(vi) A number of loose, apparently unused blue-tabbed Ziplock bags similar in colouring to the box of Ziplock bags in the garage and to bags found in the pail and cloth bag; and
(vii) A firearm and magazine loaded with two rounds of shotgun shells.
(vi) Trafficking-related paraphernalia found in garage
The police search of the garage revealed a number of items often found in relation to a trafficking business. These include:
(i) numerous pairs of used blue latex gloves found in two places at opposite ends of the garage (in a garbage pail and in a small green bag tossed into a bin of paint cans);
(ii) used Ziplock bags of the same type and colour as found in the Acura and used vacuum-type storage bags;
(iii) two 25kg drums labelled “anhydrous caffeine” in the upper loft area of the garage, caffeine being sometimes used as an agent to “cut” or dilute narcotics prior to sale including much of the controlled substances found in the Acura;
(iv) a stand-mixer out of its box and set up on a table in the garage and the box from which it came on the floor nearby;
(v) a “Canadian Tire” plastic pail under the same table similar to the pail found in the Acura containing narcotics and to the pail Mr. Hoang was filmed bringing into and out of the area of the secret “trap” of the Acura on June 27, 2018;
(vi) an open box of blue-tabbed Ziplock bags matching the Ziplock bags of the same colour found in the Acura;
(vii) a bin containing a blender beaker and metal plates from a press of the sort used to press bulk narcotics;
(viii) A box for a blender;
(ix) A digital scale sensitive to one-tenth of a gram;
(x) Two used filtration masks in one location identified by Mr. Hoang as coming from the clean-up of a “trap house” and a new apparently identical filtration mask in another;
(xi) Boxes of fresh latex gloves (colour unknown); and
(xii) Two blue duffel bags matching the blue duffel bag containing unknown items that “John” was seen to deliver on July 16, 2018, the blue duffel bag that Mr. Hoang was filmed loading into the Acura that evening and the empty blue duffel bag he was seen removing from the Acura the following morning.
(vii) Trafficking-related paraphernalia found in house
The following paraphernalia potential related to the trafficking business was found during the search of Mr. Hoang’s home on July 18, 2018:
(i) An large automatic currency counter set up on a work table in the gun room in the basement;
(ii) A Tupperware container found on a lower shelf of the same work table in the gun room of the same type and lid colour as the Tupperware containers found in the green cloth bag inside the Acura;
(iii) Two Blackberry-brand mobile phones with two separate post-it notes containing passwords and two separate, anonymous email addresses (“@encryptroid.com”); and
(iv) A digital scale found in its box in the laundry room with a small Ziplock bag on top containing various controlled unidentified narcotics (see below).
(viii) Cash proceeds found in house
[67] Two separate closets on the main floor were found to contain three parkas with internal zipper pockets. These were found to contain cash that is agreed to amount to $148,200. A further $1,044 US was found in the gun room in the basement. Mr. Hoang admitted that all of these sums were proceeds of the narcotics trafficking business that he admitted to being part of as a deliveryman.
(ix) Controlled substances found in house
[68] A drawer in the laundry room was found to contain a digital scale along with a zip lock bag containing a small amount of what appeared to be narcotics. Detective Johnston found these items which he examined and concluded from his own experience that these chunks contained cocaine, fentanyl, Carfentanil and MDMA based on their appearance. He turned them over to the Exhibits Officer, Officer Hulan. Officer Hulan was not asked to identify these seized items specifically and he did not confirm whether these substances seized by him were submitted for testing to Health Canada. The Crown has failed to prove what test result(s) corresponds to the substances found in this Ziplock bag. The Crown has failed to prove beyond a reasonable doubt that Mr. Hoang possessed any amount of cocaine, MDMA or heroin on July 18, 2018 when the home was searched.
[69] I do however find as a fact that Detective Johnston’s evidence may be relied upon far enough to conclude that the substances found in the laundry room drawer were controlled substances even if their precise composition or weight cannot be determined. Their presence in the house adds at least some additional circumstantial evidence of Mr. Hoang’s knowing involvement in the business of trafficking in narcotics when viewed in the context of the other evidence.
Issues to be decided
[70] I have divided the questions to be decided in this case as follows:
a. Is Mr. Hoang’s evidence to be believed or does it raise a reasonable doubt as to his knowing possession of any controlled substances?
b. Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed the controlled substances found in the rear of the Acura?
c. Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed the controlled substances found in the concealed “trap” of the Acura?
d. Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed proceeds of crime in respect of the cash found in the Acura on July 17, 2018?
e. Has the Crown proved beyond a reasonable doubt that Mr. Hoang is guilty of the unsafe storage of the firearm or ammunition found in the Acura?
f. Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed the cash found in the house on July 18, 2018?
g. Has the Crown proved the essential elements of Counts Seven, Eight and Nine of the indictment?
Analysis and discussion
(a) Is Mr. Hoang’s evidence to be believed or does it raise a reasonable doubt as to his knowing possession of any controlled substances?
[71] The credibility of Mr. Hoang is central to reaching a verdict in this case. The credibility of the Crown witnesses was not challenged so much as the inferences that might reasonably be drawn from their evidence were questioned.
[72] While Mr. Hoang has offered no contest to the two proceeds counts, he has provided evidence that, if believed, would negative his possession of any of the narcotics found by police in the rear of the Acura, in the “trap” of the Acura or in the house. Control of a thing alone does not establish possession. The required mental element for the purposes of the charged offences is knowledge both of the fact of control of the substance and of its nature.
[73] Mr. Hoang admitted he believed the Adidas knapsack contained cocaine for a delivery he was directed to make by his “employer” when he removed it from the Acura at approximately 6:40 pm. His evidence was that the cocaine had been placed there by his “employer” following their usual practice. It was this “employer” whose instructions he said that he was following when leaving the empty knapsack earlier that afternoon and when he returned to pick it up and make the deliveries he was directed to make. After delivering the contents to clients at Square One later than evening, he returned the knapsack containing only cash proceeds to the Acura. He denied having any knowledge of narcotics remaining in the Acura after he removed the Adidas knapsack from it and offered no explanation for why his “employer” placed such a large quantity of narcotics inside the vehicle without mentioning it to him. If that evidence were believed by me or, even if not believed, if it raises a reasonable doubt as to an essential element of the charges, then Mr. Hoang is entitled to be acquitted.
[74] I have found Mr. Hoang’s evidence neither persuades me nor does it raise a reasonable doubt as to any of the essential elements of the offences with which he is charged.
[75] Few things are more difficult to explain than why a trier of fact simply does not believe a witness. It is never one thing viewed in isolation. My conclusion about Mr. Hoang’s lack of credibility is the product of the totality of the evidence. Individual elements of his account would often appear implausible but at least possible viewed in isolation. At some point, implausibility piled upon implausibility tilts the scale from implausible to impossible. Some examples follow.
[76] Mr. Hoang testified that he simply “forgot” that he had left his shotgun and the magazine loaded with two shells in the back of the Acura. Mr. Hoang also testified that the Acura was acquired for the purpose of being used in a trafficking business where he was handling large volumes of narcotics and picking up in excess of a hundred thousand dollars on occasion. By his own evidence, the deliveries on the evening of July 17, 2018 alone resulted in proceeds of $118,000 and he said that he usually made about four deliveries in a week. The inference that a firearm found in a vehicle used in connection with an illicit enterprise of that scope was for the protection of that same business is a very strong one. The suggestion made by Mr. Hoang that he had simply “forgotten” the firearm after a recent trip to the gun range has some potential plausibility given the existence of his (legal) gun collection. However, when examined closely, his story is simply not believable (nor is the excuse a valid one if the items were stored in an unsafe manner at the time he put them there and he has admitted that it was indeed he who put them there).
[77] The shotgun was stored in a gun case lying flat in the cargo area of the Acura. It was Mr. Hoang’s gun and his case. He certainly knew what his own gun case looked like – by his own admission, he brought the gun to the range very recently. The gun case was not something easy to overlook particularly if he were moving things into or out of the trunk area. In the 24 hours prior to his arrest, he was seen unloading his golf bag and pull cart from the back of the Acura, driving the vehicle to a gun store, loading several large boxes picked up from that store into the trunk and then unloading these into the back of his pick-up truck. He was also seen to load two plastic pails and a green cloth bag into the same trunk area just a foot or so away from the gun case. On each of these occasions, Mr. Hoang was involved in shifting the bulk of the volume of the contents of the trunk area of the Acura. The large gun case had a considerable footprint in the trunk area and would have been plainly visible to him over and over again as he added and subtracted things from the back of the Acura. If there were any truth to his claim to have forgotten that the gun was in his vehicle at some point, he was certainly reminded of its presence on some or all of these occasions. Further, a magazine for the same shotgun loaded with two shotgun shells was present in plain sight on the rear passenger seat of the Acura just inches away from where he left a black Adidas bag full of cash. The loaded magazine was sitting on a portion of the foam insert from the gun case containing a cut-out shape of the shotgun. A more obvious reminder of the presence of the shotgun in the vehicle would be hard to imagine.
[78] I find it quite impossible to believe that Mr. Hoang “forgot” that he had left the shotgun in the Acura. He would have seen the gun case, foam that came from the gun case with a gun-shaped cut-out and the magazine with two shells in it pretty much every time he put anything in or took anything out of the Acura. His story was nothing less than a deliberate lie crafted to navigate through the facts proved by the Crown.
[79] Second, Mr. Hoang’s attempt at crafting innocent explanations for each and every damning circumstance became increasingly strained and lacking in credibility as his cross-examination was pursued. I have already outlined my reasons for rejecting his attempts at explaining away the delivery of the duffel bag on July 16, 2018, the subsequent transport of the duffel bag into the Acura later than evening and his ultimate removal of the empty duffel bag the following morning. I have also explained my reasons for rejecting the implausible explanation of what he was doing removing the buckets and the cloth bag from the back of the Sierra and placing these in the Acura. His claimed ignorance of the contents of the cloth bag are particularly unbelievable given the ready view of the interior contents afforded by the design of the bag when sitting at rest on a surface as shown by police photos. These are just a few instances of strained explanations attempting to fit facts to be explained that lacked an air of reality when subjected to scrutiny.
[80] The presence of bill counting machines in both the Acura and the house also bears powerful, if mute, testimony to the level of Mr. Hoang’s actual involvement in the narcotics business. The bill counter in the gun room was installed, plugged in and ready for use on a table in the secure gun room in the basement in what for all appearances appears to be a quasi-permanent installation. It was not put away in some corner of the garage as a vestige of a business he had left years before. While the electronic counting machine is of course moveable, the manner of its installation suggests that counting large quantities of money was not a rare or unusual occurrence. The presence of rubber bands wrapped around the gear shift of the Acura[^1] is at least consistent with Mr. Hoang conducting business in that vehicle and wrapping (or unwrapping) the bundles of cash the business generated.
[81] By contrast, Mr. Hoang’s evidence of the “usual” way of handling cash proceeds received by him for his “employer” suggests no need on his part to be involved in unbundling or counting it in the usual course. On his telling, there is no indication that he was told anything specific about the price of what he was selling or the amount of money he was to receive and leave for his employer to pick up. Such a blind courier would have no need to count money in bulk yet Mr. Hoang had a counting machine inside the Acura and the much larger electronic money counting set-up and ready for use in a secure room in his basement.
[82] The whole set-up leads quite strongly to the inference that Mr. Hoang was handling money in bulk with some frequency. Every aspect of the evidence points to him being much, much more than the simple courier kept in the dark about all but the most essential details that he claimed to be.
[83] His explanation of the wide variety of what I have described as trafficking-related paraphernalia in his home and car was strained and implausible when viewed as a whole:
a. The boxes of latex gloves stored in the garage were said to be for the rather infrequent purpose of changing the tires of his car. While the explanation is a rather implausible one, it is at least somewhat possible. However, Mr. Hoang also agreed that the used latex gloves found in the garage had a quite different origin. These were used in the narcotics business because his “employer” had caused “John” to deliver them to him and he was instructed by his “employers” to throw them out. Even that explanation ran aground when a smaller similar bag of the same type of used gloves and used storage bags was also found at the other end of the garage in a quite different location.
b. The respirator masks found in one bin were said to be left-over from his do-it-yourself drywall removal project in the basement. However, an apparently identical, un-opened respirator mask was found in a different bin in the same garage and that contained material he had cleaned out from a trap house on orders from his “employer”.
c. The box of blue-tabbed Ziplock bags in the garage was allegedly for the purpose of storing meat from Costco or hunting and yet the same type of blued-tabbed Ziplock bags were found on the floor of the cargo area of the Acura and as part of the wrapping of the narcotics found in the cloth bag. All of these places where Ziplock bags were found were far from kitchen or freezer or any type of food preparation station.
d. Mr. Hoang offered no explanation for the sensitive digital scale found in his garage. There was another digital scale in the laundry room of the house that Mr. Hoang said his wife used for baking but no such explanation was offered for the one found in the garage and Mr. Hoang’s “deliveryman” role – at least as he described it – would not require such a sensitive scale.
e. He never described using blackberry phones to communicate with his employer and yet two such devices were found in his house with post-it notes on each indicating a password to separate email accounts with “@encryptroid.com”.
f. He explained his possession of plates from a press as arising from the fact that he had been sent to “clean out” a “trap house” by his employer– a phrase with which he was obviously familiar – and had taken the plates home in a small bin of odds and ends. The courier trusted with more than a quarter million dollars at the time of his arrest from an employer who had gone to the trouble of having him acquire (at the employer’s expense) a luxury car and to rent a parking space was nevertheless instructed to perform menial cleaning tasks and then to hold on to what amounted to little more than miscellaneous trash in his home for an indeterminate period of time in order to wait for instructions?
[84] Singularly any one of Mr. Hoang’s explanations might potentially be plausible. Cumulatively, these explanations become increasingly strained and impossible to credit.
[85] I find that Mr. Hoang’s evidence is entitled to no weight at all when I come to sift the evidence presented by the Crown to discharge its burden of proving each of the essential elements of the charges. I am persuaded that these were all simply artful lies that are incapable of being believed or of raising a reasonable doubt.
[86] I must now review the evidence in relation to the charges in the two indictments to see whether the Crown has discharged its burden. Prior to doing so in detail, I shall address the inferences Mr. Gold invited me to draw from the alleged lack of evidence.
[87] The Crown led no evidence of DNA testing or fingerprint testing of the trash (used gloves and used plastic bag packaging) found in the garage or any of the various packages containing controlled substances found in the rear of the Acura or in the trap. The absence of such forensic evidence may be material in some circumstances, however, this is not such a case. Indeed, it would be a rare prosecution where the evidence adduced answers each and every possible question that arises in the course of proving a case or examining the evidence adduced by the defence where, as here, the defence calls evidence. The absence of additional forensic evidence raises no reasonable doubts in this case when viewed against the totality of the evidence that was adduced.
(b) Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed the controlled substances found in the rear of the Acura?
[88] The controlled substances found in the Canadian Tire pail and in the green cloth bag were clearly under Mr. Hoang’s control. He removed them from the trunk of his Sierra pick-up truck and moved them to the back of the Acura. He was the owner of both vehicles. I have rejected Mr. Hoang’s testimony that his “employer” had access to these two vehicles and must have placed whatever substances were found in them without his knowledge. There is no evidence that anyone else had access to either vehicle beyond Mr Hoang’s testimony that I have rejected. Control of the substances found in the pail and green cloth bag in the back of the Acura has been proved beyond a reasonable doubt.
[89] The circumstances in which these narcotics were found, the context of the other evidence concerning Mr. Hoang’s involvement in the business of trafficking (including his own admissions in that regard) leaves no doubt as to the state of his knowledge of the presence and nature of the controlled substances found.
[90] There is a remarkable continuity between the items found in the garage, the house, the back of the Acura generally and in the three containers placed in the back of the Acura by Mr. Hoang that renders the thesis of unannounced narcotics being placed there by an “employer” quite implausible:
a. Vacuum sealed packages were found in the containers; used (i.e. opened) vacuum sealed bags were found in the garage and a vacuum sealer was found in the rear of the Acura.
b. Blue-tabbed Ziplock bags were found inside the three containers in the rear of the Acura as part of the packaging of the narcotics contained therein. Similar blue-tabbed Ziplock bags were also found strewn about the floor of the trunk area beside the three containers. A box of blue-tabbed Ziplock bags was also found on a table in the garage.
c. Blue, apparently unused latex gloves were found in the green cloth bag along with bulk heroin. Apparently identical blue latex gloves were found in two places in the garage. Mr. Hoang also admitted that the garage contained other boxes of latex gloves.
d. A Tupperware container with a red lid was found inside the gun room in the house; two more Tupperware containers of the same style and lid colour were found in the green cloth bag containing heroin.
e. Cash bundles tightly-bound with rubber banks were found inside the Acura and in two places in the home and bill counting machines were found in the vehicle and in the home.
f. Bulk caffeine drums were found stored in the garage; bulk caffeine tablets and controlled substances cut with caffeine were found in the containers in the rear of the Acura.
g. “John”, an individual Mr. Hoang said was involved in the narcotics business, delivered a blue duffel bag with material weight and volume to Mr. Hoang on July 16 in the late afternoon. A similarly loaded duffel bag was placed inside the Acura a couple of hours later while an apparently empty duffel bag was removed by Mr. Hoang from the Acura the morning of July 17, 2018 and was found inside the garage when searched on July 18, 2018.
[91] There is a seamless continuity to all of these items of circumstantial evidence which ineluctably leads to the conclusion that Mr. Hoang knew full well the nature of what he was carrying inside the three containers when he placed them in the rear of the Acura because he himself had intentionally placed them there. These narcotics, along with the car in which he placed them and the rented parking spot where the car was parked were all part and parcel of the narcotics trafficking business that he was conducting.
[92] Count One of the indictment charges Mr. Hoang with possession of heroin for the purpose of trafficking on July 17, 2018. In excess of 3 kilograms of a compound containing heroin in different shapes was found in the containers placed by Mr. Hoang in the trunk area of the Acura that day before accounting for the untested contents of the two bricks each weighing just under a kilogram. Four similar-looking bricks were found together having a relatively uniform appearance and size and similarly wrapped. However, of the two tested bricks, one tested as a compound of heroin cut with caffeine and dimethyl sulfone while the other included those same substances plus Fentanyl, Carfentanil and an analogue of Fentanyl. While I cannot say whether those additional substances (Fentanyl and Carfentanil) are found in one or the other of the two untested bricks, there can be no reasonable doubt that both bricks do contain heroin. The only question is the degree to which the heroin undoubtedly contained in them is compounded with other substances.
[93] I therefore find that Mr. Hoang possessed in excess of 5 kilograms of a heroin compound stored in the containers in the back of the Acura. The volume discovered, the surrounding circumstances and Mr. Hoang’s admissions all leave no doubt that such heroin was possessed by him for the purpose of trafficking. A verdict of guilty must be entered for Count One of the first indictment.
[94] Count Two of the indictment charges Mr. Hoang with possession of heroin and Fentanyl for the purpose of trafficking on July 17, 2018. The containers placed by him in the back of the Acura on that day were found to contain a compound of heroin and Fentanyl weighing 896.04g. Once again, the volume discovered, the surrounding circumstances and Mr. Hoang’s admissions leave no doubt that his possession of this substance was for the purpose of trafficking. A verdict of guilty must be entered for Count Two of the first indictment.
[95] Count Three of the indictment charges Mr. Hoang with possession of heroin, Carfentanil and Fentanyl for the purpose of trafficking on July 17, 2018. The containers placed by him in the back of the Acura that day were found to contain a compound containing heroin, Carfentanil and Fentanyl weighing 993.06g. The volume discovered, the surrounding circumstances and Mr. Hoang’s admission leave no doubt that his possession of this substance was for the purpose of trafficking. A verdict of guilty must be entered for Count Three of the first indictment.
(c) Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed the controlled substances found in the concealed “trap” of the Acura?
[96] Was Mr. Hoang aware of the existence and contents of the trap? Having disregarded as unreliable and fabricated all of Mr. Hoang’s evidence regarding his allegedly low-level involvement in the trafficking business, the Crown must nevertheless demonstrate beyond a reasonable doubt that Mr. Hoang was aware of the existence and the nature of the substances stored in the trap. I find that the Crown has discharged that burden.
[97] There is no evidence that I accept that any person other than Mr. Hoang had access to or control over the Acura in Mr. Hoang’s absence. The vehicle spent time at a rented parking spot a distance away from his home and he was observed on multiple occasions shuttling things back and forth from his pick-up truck to the Acura in that same garage. The totality of the evidence persuasively describes an individual involved in a significant, wholesale trafficking operation in which the Acura and the parking spot rented in a friend’s name all played an integral role. Mr. Hoang’s experience in the auto body business is evidence of a man with either the experience to build the trap in the Acura himself or to know how and by whom to arrange for this to be done. More than seven kilograms of heroin compounds and $118,000 in proceeds of trafficking were found elsewhere in the vehicle along with trafficking-related paraphernalia such as a counting machine, a vacuum sealer, Ziplock bags. I have found that Mr. Hoang knowingly possessed both the narcotics found in the rear of the vehicle and the proceeds found in the knapsack. All of these circumstances render quite unbelievable the idea that he was unaware of the similar substances destined for the same business and concealed in a custom-built secret storage area in his own vehicle.
[98] Once again, there is a high degree of continuity between the items found in the trap, the narcotics found in the rear of the vehicle and the trafficking-related items found elsewhere in the vehicle, in the garage and in the home. This includes:
a. the presence of vacuum-sealed packages of narcotics in the trap and vacuum-sealed packages containing narcotics in the rear of the Acura, a vacuum sealer in the Acura and empty vacuum-sealed bags in the garage;
b. the use of blue-tabbed Ziplock bags to store narcotics found in the trap and the same type and colour of Ziplock bags found on the floor of the rear of the Acura, in the pails and the green cloth bag and in the garage;
c. the presence of significant amounts of heroin cut with caffeine and dimethyl sulfone in both the trap and in the rear of the vehicle; and
d. the use of grocery-style plastic bags to store narcotics in the trap and in the rear of the Acura and to store bundled cash in the knapsack.
[99] On at least three occasions (June 27, 2018 and twice on July 17, 2018), Mr. Hoang was observed spending a period of time in the driver’s seat of the Acura in circumstances consistent with him accessing the trap either to fill or empty it.
[100] Given the totality of the evidence I find that the Crown has proved beyond a reasonable doubt that Mr. Hoang had control over and was aware of the nature of all of the contents of the trap that were found when Officer Huber located and opened the “trap” and its contents were inventoried (and ultimately tested) on July 19, 2018.
[101] Count Four of the indictment charges Mr. Hoang with possession of cocaine for the purpose of trafficking. The trap was found to contain four compressed puck-shaped discs of similar packaging and appearance. One of these was tested and found to contain cocaine. In light of the circumstances in which these four discs were found, I find that all four contained cocaine. The trap was also found to contain six compressed and wrapped bricks. All were similarly wrapped, of similar appearance when unwrapped and stamped with the CR07 logo. Three of them were tested and found to contain cocaine. In the light of the circumstances in which they were found and the surrounding circumstances, I find that all six bricks also contained cocaine. A single partial brick was found vacuum sealed. This too was sampled and found by Health Canada testing to contain cocaine.
[102] In all, I find that Mr. Hoang possessed just under 7.5 kg of compressed cocaine stored in the trap of the Acura. Given the circumstances in which these were found, the volume discovered, the surrounding circumstances and Mr. Hoang’s admissions, there can be no doubt that this cocaine was possessed by him for the purpose of trafficking.
[103] A verdict of guilty must be entered for Count Four of the first indictment.
[104] Count Five of the indictment alleges that Mr. Hoang possessed Carfentanil for the purpose of trafficking. A plastic bag was found in the trap area containing 494.09g of a substance that was sampled, tested and found to contain Carfentanil. The quantity discovered in his possession, the surrounding circumstances and Mr. Hoang’s admission all leave no doubt that Mr. Hoang’s possession of this substance in the trap was for the purpose of trafficking. A verdict of guilty must be entered for Count Five of the first indictment.
[105] Count Two of the indictment charges Mr. Hoang with possession of Heroin and Fentanyl for the purpose of trafficking. 471.7g of a compound was found inside the trap that was sampled and tested to contain heroin and Fentanyl. Mr. Hoang was in knowing possession of the contents of the trap including the heroin and Fentanyl compound found therein. The volume discovered, the circumstances in which they were found and Mr. Hoang’s admissions all establish beyond reasonable doubt that Mr. Hoang’s possession of this substance for the purpose of trafficking. I have already found Mr. Hoang guilty in respect of Count Two. The Crown has proved his guilt beyond a reasonable doubt in respect of possession for the purposes of trafficking of this additional quantity of heroin and Fentanyl compound as well.
[106] Similarly, Mr. Hoang has already been found guilty by me under Count Three of the first indictment of the possession of a compound of heroin, Fentanyl and Carfentanil for the purpose of trafficking. A further 871.3g of a compound of those same three controlled substances was found in the trap whose contents – including this compound – I have found that Mr. Hoang was in knowing possession of. The volume of narcotics found in the trap, the circumstances in which it was found and Mr. Hoang’s admissions all leave no doubt that this compound too was possessed by him for the purpose of trafficking and my finding of guilt I respect of Count Three includes this additional volume of this compound found in the trap.
(d) Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed proceeds of crime in respect of the cash found in the Acura on July 17, 2018?
[107] Count Six of the indictment charges Mr. Hoang with possession on July 17, 2018 of property with a value in excess of $5,000 knowing same was the proceeds of the commission of an indictable offence. The Adidas knapsack found in the back seat of the Acura on that day was found to contain $118,000 in cash. Mr. Hoang was seen placing the knapsack into the Acura on the morning of July 17, 2018, removing that same knapsack from the Acura later that afternoon, carrying the knapsack to make a delivery of what he believed to be cocaine to his clients in the area of the Square One mall that evening, returning a couple of hours later to place the knapsack back in the Acura from which he had removed it. He admitted that the knapsack contained the proceeds of the sale he completed earlier that evening. The Crown has established all of the essential elements of this offence: possession of the funds, knowledge of their nature and knowledge that the funds derived from the commission of an indictable offence (trafficking). A verdict of guilty must be entered for Count Six of the first indictment.
(e) Has the Crown proved beyond a reasonable doubt that Mr. Hoang is guilty of the unsafe storage of the firearm or ammunition found in the Acura?
[108] I have described earlier the circumstances in which the shotgun and the magazine loaded with two shotgun shells were found in the Acura and my reasons for finding that Mr. Hoang was aware of the presence of both items in the Acura which was under his control at all material times. I find that the Crown has proved beyond a reasonable doubt that Mr. Hoang knowingly possessed both the firearm and the two shells as charged and that both such items were operable firearms or ammunition (as the case may be).
[109] The charge of unsafe storage of these pursuant to s. 86(1) of the Criminal Code also requires the Crown to demonstrate that either or both were stored “without reasonable precautions for the safety of other persons”.
[110] The shotgun and the two shells were both found inside the Acura. The ammunition was in plain sight on the back seat. The shotgun was not equipped with a trigger lock and was stored in a gun case that was itself plainly visible from the outside for some or all of the previous day at least. In the twenty-four hours before the Acura was searched and seized, the vehicle was stored in the underground parking garage of a high-rise condominium building, parked at a mall in front of a gun shop, on the street in front of Mr. Hoang’s residence and in the driveway of that same residence. There is no evidence that the vehicle was left unlocked when Mr. Hoang was not using it.
[111] Has the Crown discharged its burden of proving the manner of storage of these was “without reasonable precautions for the safety of other persons”? In my view the Crown has met this burden.
[112] Although the vehicle was locked, it was stored in full public view on each of these occasions. The vehicle itself has a hatchback and windows affording a view of the trunk area or the back seat area to anyone caring to examine it. Anyone breaking into the vehicle would have access to a fully operable firearm within a few seconds. The magazine was loaded and stored in plain sight only a foot or two away from the shotgun itself. While the gun was inside a closed (but not locked) case, the case itself was visible in whole or in part from the outside and the foam insert to that case containing a plain and obvious cut-out in the shape of the shotgun plus the magazine, both plainly visible on the back seat and in effect announcing the presence of a firearm in the vehicle.
[113] It also cannot be overlooked that the vehicle was being actively used in connection with a large-scale drug trafficking business and contained a very substantial quantity of narcotics for some or all of the time when it was under observation by police. While I have rejected Mr. Hoang’s evidence that his “employer” had regular access to the Acura, I have found that Mr. Hoang did use the vehicle as part of his own trafficking business. The presence of both elements of a ready-to-fire functioning firearm in ready proximity to a vehicle centrally connected to that same illegal business is an inherently dangerous circumstance.
[114] I find Mr. Hoang guilty of storing the shotgun and its ammunition without reasonable precautions for the safety of other persons. A verdict of guilty must be entered for both counts in the second indictment.
(f) Has the Crown proved the essential elements of Counts Seven, Eight and Nine of the indictment?
[115] I have previously described the failure of the Crown to prove beyond a reasonable doubt the nature of the chunks of what Det. Johnston described as resembling narcotics that he found in a drawer in the laundry room while searching Mr. Hoang’s house on July 18, 2018. While it appears likely that tests of these substances were performed by Health Canada and the results are to be found in the bundle of Health Canada certificates filed in evidence, “likely” is a civil standard of proof and not a criminal one. The seizing police officer, Officer Hulan, did not testify to having submitted samples of any of these seized substances for testing nor has any means of mapping the test results returned to the substances seized or the samples sent been placed before me.
[116] As noted earlier, I find that Detective Johnston’s evidence may be relied upon to establish that the substances found in the laundry room drawer (Exhibit 13) were, in fact, controlled substances despite the failure to corelate the Health Canada certificates to samples sent from this source. This fact is an additional element of circumstantial evidence underscoring Mr. Hoang’s knowing participation in the narcotics trafficking trade but may not be relied upon to make a precise finding in relation to Counts Seven, Eight and Nine. These three counts contain specific charges in relation to specific substances the essential elements of which remain unproved. A not guilty verdict must be entered for Counts Seven, Eight and Nine of the first indictment.
(g) Has the Crown proved beyond a reasonable doubt that Mr. Hoang possessed proceeds of crime in respect of the cash found in the home on July 18, 2018?
[117] The agreed admissions in this case (Exhibit 8) include admissions that $142,200 was found in the lining of three jackets in closets of Mr Hoang’s residence and the USD$1,044 found in the gun room. These amounts were found during the search of Mr. Hoang’s residence on July 18, 2018. Count Ten of the first indictment charges Mr. Hoang with knowing possession of property with a value over $5,000 knowing same to be proceeds of the commission of an indictable offence.
[118] I find that the Crown has discharged its burden of proof for each of the essential elements of Count Ten. Mr. Hoang had knowing control over the funds found in his own home and admitted to knowing the funds were there. Indeed, he admitted to counting the funds in the jackets. He also admitted under cross-examination that he knew all of these funds to be the proceeds of the trafficking business he was involved in. The Crown has proved each of the essential elements of this offence.
[119] A verdict of guilty must be entered for Count Ten of the first indictment.
Disposition
[120] For the foregoing reasons, the following verdicts will be entered:
[121] First Indictment (CR-19-9-0000102-0000):
a. Count One (trafficking heroin): GUILTY
b. Count Two (trafficking heroin and Fentanyl): GUILTY
c. Count Three (trafficking heroin, Fentanyl, Carfentanil): GUILTY
d. Count Four (trafficking cocaine): GUILTY
e. Count Five (trafficking Carfentanil): GUILTY
f. Count Six (possess proceeds July 17): GUILTY
g. Count Seven (trafficking heroin July 18): NOT GUILTY
h. Count Eight (trafficking MDMA July 18): NOT GUILTY
i. Count Nine (trafficking cocaine July 18): NOT GUILTY
j. Count Ten (possess proceeds July 18): GUILTY
[122] Second Indictment (CR-22-9-0000103-000):
a. Count One (unsafe storage firearm): GUILTY
b. Count Two (unsafe storage ammunition): GUILTY
[123] The sentencing hearing shall be held on April 11, 2022. .
___________________________ S.F. Dunphy J.
Released: March 4, 2022
COURT FILE NO.: CR-19-9-000690-0000; CR-19-0000696-000
DATE: 20220304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
duc tung hoang
Defendant
REASONS FOR JUDGMENT
S.F. Dunphy J.
Released: March 4, 2022
[^1]: Mr. Hoang was not cross-examined about this detail and I do not have the benefit of whatever explanation he might have offered. The observation made by me must be tempered by that fact.