His Majesty the King v. Abu Mandal, 2023 ONSC 1545

COURT FILE NO.: CR-22-34 DATE: 2023-03-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ABU MANDAL The Accused

COUNSEL: Joseph Dart, for the Crown Gregory Lafontaine, for the Accused

HEARD: January 30, 31, February 1, 2, and 3, 2023

REASONS FOR JUDGMENT

Muszynski J.

[1] The accused, Abu Mandal, is charged with a single count of selling items intending they be used in the production of a substance in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) contrary to s. 7.1(1).

[2] There is very little caselaw and, therefore, seemingly very few prosecutions under s. 7.1(1) since the section was added to the CDSA in 2017. Section 7.1(1) states:

No person shall possess, produce, sell, import or transport anything intending that it will be used (a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or (b) to traffic in a controlled substance.

[3] As will become clear, the evidence demonstrates that Mr. Mandal sold chemicals to an individual who used them to produce methamphetamine unlawfully. The central issue in this case is whether Mr. Mandal sold the chemicals “intending” that they would be used to produce a controlled substance unlawfully.

POSITIONS OF THE PARTIES

[4] The Crown submits that the circumstantial evidence proves beyond a reasonable doubt that Mr. Mandal sold the chemicals, or other items, in question intending that they would be used to produce methamphetamine. The Crown’s position is that the evidence demonstrates that Mr. Mandal had knowledge of or, alternatively, was wilfully blind to, the end use of the chemicals by the purchaser. On that basis, the Crown submits that they have proven Mr. Mandal’s guilt beyond a reasonable doubt.

[5] The defence takes the position that the circumstantial evidence fails to prove Mr. Mandal intended that the chemicals be used in the production of methamphetamine. The use of the word “intending” in s.7.1(1), the defence submits, imports the highest mens rea requirement into the offence. Firstly, the defence submits that the evidence does not demonstrate that Mr. Mandal had knowledge that the chemicals would be used to produce methamphetamine. Alternatively, to find Mr. Mandal guilty beyond a reasonable doubt, the defence submits that even if I find that Mr. Mandal had knowledge that the chemicals would be used to produce methamphetamine, the Crown must prove that he was invested, desired, or cared about the methamphetamine production and that a finding of knowledge or willful blindness is not sufficient to convict.

EVIDENCE

[6] As noted previously, the evidence is largely uncontested and not controversial.

Eldorado Investigation

[7] Mr. Mandal became known to police in the course of an investigation in March of 2019 into three other individuals (The Khanan Pham; Duc Sang Luong; and Cong Nguy) who were believed to be operating a clandestine methamphetamine lab out of a residence in Eldorado, a small-town north of Belleville.

[8] While conducting surveillance of Mr. Pham, police observed Mr. Pham meet Mr. Mandal in a Canadian Tire parking lot located at Weston Rd. in North York on March 23, 2019 at which time items were exchanged.

[9] On April 6, 2019, the Eldorado property was raided by police at which time police suspicions were confirmed – the residence was being used as a meth lab. The three men were arrested and ultimately convicted of charges relating to methamphetamine production. Continuity of the items seized in the raid is not disputed.

[10] Scott McGregor, a chemist at Health Canada, was tendered as an expert by the Crown to give opinion evidence on chemistry and, specifically, the chemical components and composition of illicit drugs and the identification of synthetic drug operations including methamphetamine. On April 7, 2019, Mr. McGregor attended at the Eldorado property at the request of the OPP where he assisted police with sampling exhibits and provided advice on chemicals and safety.

[11] Mr. McGregor testified that the lab was producing methamphetamine through the synthesis route, which involves the reduction of ephedrine with iodine and hypophosphorous acid. The first step in the synthesis method is to extract the ephedrine from pharmaceutical tablets by adding a solvent. In this case, toluene was being used as the solvent. In the second step, a mixture of iodine and hypophosphorous acid is added to a round glass bottom flask fitted with a condenser and the reaction is allowed to proceed. The extracted ephedrine is then added to the iodine / hypophsophorous acid mixture and is heated, then basified with sodium hydroxide (caustic soda) and extracted with toluene. The extracted product is treated with hydrogen chloride gas to produce methamphetamine. Finally, the powder is allowed to crystalize over time using a combination of acetone and water.

[12] The following items were found at the Eldorado property: a. Ephedrine, in tablet form; b. Containers labeled as iodine; c. A large blue jug container with handle, partially labeled as hypophosphorous acid; d. Acetone; e. Hydrochloric acid; f. A hydrogen chloride gas cylinder; g. Bags of sodium hydroxide (caustic soda); h. Barrels labelled as toluene; i. Enabling equipment, including a round bottom flask and heating mantle; j. Phenyl-2-propanone (a by-product of the reaction); and k. Methamphetamine – in various stages of completion.

[13] Detective Constable Warren Price is an OPP officer with the clandestine lab investigation unit. D/C Price attended at the Eldorado property on April 7, 2019 for the purpose of executing a search warrant. During the search, he observed a round glass bottom flask and heating mantle that was being used to produce methamphetamine. In the area where the flask was located, he also observed a cardboard shipping box with a protective Styrofoam insert the same size as the flask. The shipping label on the box identified the sender as “Safety Emporium” and the receiver as “Al Mandal”, the receiving address as “Gold Seal Electric, 1230 Dupont Street” with a phone number that is admitted to belonging to Mr. Mandal. The ship date on the box is October 26, 2017. D/C Price testified that there was a significant amount of garbage located both inside and outside the residence.

[14] The defence concedes that there was an ongoing and illegal clandestine meth lab being operated at the Eldorado property.

Surveillance of Mr. Mandal

[15] There were two notable instances when Mr. Mandal was observed by police during the investigation into Mr. Pham and the Eldorado meth lab.

[16] On March 23, 2019, Detective Sergeant Michael Deyell, who was with the organized crime bureau of the OPP at the time, was part of the surveillance team assigned to Mr. Pham. D/S Deyell followed Mr. Pham’s vehicle, a blue van, into a Canadian Tire parking lot at Weston Road and the 401. He observed Mr. Pham’s vehicle park next to a brown van and obtained video footage of the interaction. There was a male and a female in the brown van and Mr. Pham was the sole passenger observed in the blue van. D/S Deyell observed the female passenger, who he later found out was Bernedina Mandal – Mr. Mandal’s wife, transfer something to Mr. Pham. The item appeared to be similar in size to a chequebook or billfold. D/S Deyell then observed an interaction between Mr. Pham and Mr. Mandal. Specifically, Mr. Mandal entered the front passenger side of Mr. Pham’s van and appeared to be talking and gesturing to Mr. Pham, who was sitting in the driver’s seat. The meeting ended after ten minutes or so with Mr. Pham escorting Mr. Mandal to the back of the blue van. A large blue plastic jug with a handle was removed from Mr. Pham’s van and moved to the rear of Mr. Mandal’s vehicle. It appeared to be heavy. D/S Deyell followed Mr. Mandal’s vehicle back to 110 King Street in Trenton, and observed Mr. and Mrs. Mandal enter the Mosque and later their residence, which was immediately next to the Mosque. This was the first day that Mr. Mandal was observed by police in the context of this investigation.

[17] On March 31, 2019, Detective Constable John Eaton was assigned to set up covert surveillance at Mr. Mandal’s residence. He received these instructions from D/C Price who had reason to believe that Mr. Mandal had met up with Mr. Pham earlier that day. At 6:44 p.m., D/C Eaton observed Mr. Mandal’s vehicle pull into the parking lot at 110 King Street in Trenton. He observed Mrs. Mandal exit the front passenger side of the vehicle, Mr. Mandal exit the front driver’s side door of the vehicle, and Mrs. Mandal passing a package – approximately 12” by 10” - and shopping bag to Mr. Mandal before going inside the residence.

Text messages between Mr. Pham and Mr. Mandal

[18] After his arrest, Mr. Pham’s cell phone was seized and data was extracted that reveals a text message discussion between Mr. Pham and Mr. Mandal.

[19] Detective Sergeant Shawn Lecuyer was responsible for collecting the data from Mr. Pham’s phone. D/S Lecuyer prepared an extraction report of the stored text messages between Mr. Pham and Mr. Mandal which was entered into evidence at trial. The extraction report includes messages sent from Mr. Pham to Mr. Mandal and vice versa. However, the earliest messages included in the report are messages from Mr. Pham to Mr. Mandal only. Mr. Mandal’s earliest messages to Mr. Pham are not included in the extraction report. D/S Lecuyer testified that this could be due to the limit having been reached for stored incoming messages, but not outgoing messages.

[20] The 178, or so, messages between Mr. Mandal and Mr. Pham that were retained and available for extraction span from January 23, 2019 to April 6, 2019. Some of the messages exchanged are reproduced below (emphasis added in bold):

Date	Time	To	From	Message
01/23/19	4:17 p.m.	Mr. Mandal	Mr. Pham	hi boss. its ken. donny’s brother in law. do u remember me?
01/23/19	8:31 p.m.	Mr. Mandal	Mr. Pham	boss do u have gas. i need it for friday.
01/31/19	9:47 p.m.	Mr. Pham	Mr. Mandal	Do you need SUPPLY, GOING ON HOLIDAY. LET ME KNOW
02/13/19	10:51 a.m.	Mr. Mandal	Mr. Pham	can i order supply boss?
02/13/19	11:00 a.m.	Mr. Pham	Mr. Mandal	Text me what you need. I can give you what I have.
02/13/19	1:02 p.m.	Mr. Mandal	Mr. Pham	i need 1 set iodine. 3 box acid. 5 toulen. 4 acetone boss
02/13/19	2:53 p.m.	Mr. Pham	Mr. Mandal	IODINE- = $10,000- 5 TOULENE - $1,500, Each = $7,500. DRUM DEP. $500/.= $8,000. 1 Pail Acetone=20 LITRE. Each pain = $300x3=$900. HCL=36%, 22 LITRE pail., = $700.00 each.x3=$21,000. LET ME KNOW WHEN DO YOU WANT THIS.
02/23/19	12:53 p.m.	Mr. Pham	Mr. Mandal	How Are you? Give me a call when you are ready for the SUPPLY.
02/23/19	12:55 p.m.	Mr. Mandal	Mr. Pham	ya I need it but I am not enough paper. i need 1 iodine. 2 hcl acid. 5 toulen but I have 10k total 19k can I ow u 9k pay after around 2 week. can u help me?i’m very need it for work.
02/23/19	1:06 p.m.	Mr. Pham	Mr. Mandal	Yes I can help but I am not in Canada, I will be back in two week. I will let you know if by Wednesday I have somebody to pick up and give you. Let you know when so that you can rent a Van.
02/26/19	9:29 a.m.	Mr. Mandal	Mr. Pham	my bills total 19k can i pay 9.5 first.2 more week,i pay 9.5k and order more.thank u for help boss
03/12/19	1:45 p.m.	Mr. Mandal	Mr. Pham	Do u have hypo boss?
03/12/19	1:47 p.m.	Mr. Pham	Mr. Mandal	Yes, when do you need it.
03/12/19	1:53 p.m.	Mr. Mandal	Mr. Pham	But its good one boss?
03/12/19	2:05 p.m.	Mr. Pham	Mr. Mandal	Good one
03/12/19	4:41 p.m.	Mr. Mandal	Mr. Pham	U sure good hypo.if not good can i return?
03/12/19	4:52 p.m.	Mr. Pham	Mr. Mandal	Yes you can return. Everybody used the same. See you at Burger King Weston Road & Hy 7 Between 7:30 to 8:00. Bring paper.
03/13/19	9:59 a.m.	Mr. Mandal	Mr. Pham	I meet you at canadian tire Weston and 401 boss
03/13/19	10:38 a.m.	Mr. Pham	Mr. Mandal	I AM HERE CAN. TIRE.
03/13/19	10:39 a.m.	Mr. Mandal	Mr. Pham	5 min boss
03/13/19	7:24 p.m.	Mr. Mandal	Mr. Pham	Hypo no good boss. I return it
03/13/19	8:23 p.m.	Mr. Pham	Mr. Mandal	Ok
03/13/19	8:25 p.m.	Mr. Pham	Mr. Mandal	Is this the first time you use this PRODUCT
03/13/19	8:25 p.m.	Mr. Pham	Mr. Mandal	Tomorrow I will show you how to use it.
03/13/19	9:44 p.m.	Mr. Mandal	Mr. Pham	Yes boss.its not good.
03/13/19	9:48 p.m.	Mr. Pham	Mr. Mandal	Bring iodine in a bottle and come, I will show you. I HAVE THE HYPO, IT IS SLOW BUT IT WORKS . I WILL BE IN 62 NORTH BY WAL-MAR.LET ME KNOW
03/14/19	10:35 a.m.	Mr. Mandal	Mr. Pham	Im at t.o I come back midnight boss. I used it so many time but product is not good.my contract doesn’t like.
03/23/19	10:15 a.m.	Mr. Pham	Mr. Mandal	Where can I MEET YOU. I AM NEAR CAN.TIRE 401 same place. Bring back HYPO and BALANCE leaf.
03/23/19	10:39 a.m.	Mr. Mandal	Mr. Pham	i.m on the way boss.
03/23/19	10:58 a.m.	Mr. Pham	Mr. Mandal	Can TIRE
03/23/19	10:58 a.m.	Mr. Mandal	Mr. Pham	Ok boss
03/31/19	12:23 p.m.	Mr. Mandal	Mr. Pham	Hi boss. I need 3 china soda firt and weekend I order more boss?
03/31/19	12:53 p.m.	Mr. Pham	Mr. Mandal	You want it today?
03/31/19	12:54 p.m.	Mr. Mandal	Mr. Pham	Yes boss.can I meet u 3pm at home depot hwy 7 and Weston?
03/31/19	3:43 p.m.	Mr. Mandal	Mr. Pham	Oh boss im at home depot now
03/31/19	4:04 p.m.	Mr. Pham	Mr. Mandal	On my way coming
03/31/19	4:05 p.m.	Mr. Mandal	Mr. Pham	Thank u boss
03/31/19	4:32 p.m.	Mr. Pham	Mr. Mandal	Garden area
03/31/19	4:33 p.m.	Mr. Mandal	Mr. Pham	I am here
03/31/19	4:34 p.m.	Mr. Mandal	Mr. Pham	Iam here boss
04/04/19	2:23 p.m.	Mr. Mandal	Mr. Pham	I need 2 axit blue one.4 touline.1 iodine.7 soda.i pick up Monday morning.i need help for garbage. U can do it?

Search of Mr. Mandal’s residence

[21] On May 11, 2020, a search warrant was executed at Mr. Mandal’s residence. The home is located at 110 King Street in Trenton and is immediately next to the Mosque with which Mr. Mandal is associated. Mr. Mandal resides there with his wife.

[22] The search of Mr. Mandal’s home took place approximately 13 months after the arrest of Mr. Pham and his associates. D/C Price explained that this was due to the significant amount of text messages that were extracted from Mr. Pham’s cell phone and the need to translate some of those messages into English. D/C Price testified that, from a review of documents found in Mr. Mandal’s home office, he came to learn that Mr. Mandal had been involved in several businesses that were registered in his name and had appeared to be operating out of 1220-1230 Dupont Street in Toronto, including “Gold Seal Limited”, “Blue Seal Energy”, “Air Liquid Limited”, and several other numbered companies. As part of the investigation, police went to the address on Dupont Street in Toronto, but the business appeared to be closed. When questioned about the nature of the business at that address, D/C Price testified that he was uncertain as to the nature of the business or whether chemicals would be required for that business.

[23] Business related documents that were found in the residence were entered into evidence, including invoices to Mr. Mandal from various businesses relating to the purchase of chemicals. There was an initial objection by the defence with respect to the use the court could make of the various invoices from purchases made by Mr. Mandal or one of his companies from vendors without having called the authors of those invoices. Ultimately it was agreed, since the documents were found in the possession of the accused, they could be admitted as circumstantial evidence that the transactions indeed occurred.

[24] The invoices were as expected of a commercial transaction and typically were typewritten on letterhead or standardized form with the product name, quantity being purchased, price, taxes, and total amount. Some examples of the invoices found in Mr. Mandal’s possession are: a. February 16, 2018 Packing Slip from AlphaChem Limited for purchase by Blue Seal Energy of iodine. The document is typewritten on a standard form. b. February 22, 2018 Order from Chemglass Life Sciences in New Jersey for one heating mantle and one glass bottom flask totalling $1,184.59, shipped to Gold Seal Energy at 1220 Dupont Street Toronto, “Al Mandal”. This invoice is typewritten and includes details about freight and taxes. c. March 6, 2018 Invoice R. Kidd Fuels Corporation for 10, 178 kg drums of toluene priced at $800 per drum, shipped to Blue Seal Energy at 1222 Dupont Street. The invoice is typewritten on an invoice form and includes particulars about weight, taxes. A formal invoice number appears on the form. Copied onto the form is proof of payment of the invoice by credit card. d. January 23, 2019 Waybill from Kencro Chemicals to Blue Seal Energy for purchase of caustic soda and hydrochloric acid. The Waybill is on a typewritten form and is signed by the shipper.

[25] Further, police found applications for credit completed by Mr. Mandal addressed to several corporations. For example, a credit application completed by Mr. Mandal as president of Air Liquid Limited located at 1220 Dupont Street on March 6, 2017. Mr. Mandal identifies his business in this application as “Dist. Compressed gas & welding supply”.

[26] Police also found papers with handwritten lists of chemicals in Mr. Mandal’s home. Mr. McGregor, the Health Canada chemist, authored a report dated February 17, 2021 related to these lists. His report expressed opinions that some of the chemicals recorded could be related to the production of methamphetamine. He then goes onto state that some of the chemicals on some of the lists could be used in the production of ketamine, fentanyl, and MDMA. The Crown concedes that the lists are all incomplete in the sense that they include only some of the ingredients to produce these illicit drugs and are not full recipes.

[27] The offence for which Mr. Mandal is charged relates to methamphetamine, not ketamine, fentanyl, or MDMA. The defence opposes the admissibility of evidence relating to ketamine, fentanyl, and MDMA on the basis that is not relevant to the offence before the court and should have been subject to another discreditable conduct application. The Crown takes the position that these lists of chemicals, and Mr. McGregor’s opinion as to how those chemicals could be used to produce drugs other than methamphetamine, is relevant to proving Mr. Mandal’s knowledge in the subject case.

[28] Regardless of whether the Crown should have brought an application to admit this evidence, I decline to admit Mr. McGregor’s opinion evidence related to ketamine, fentanyl, and MDMA. On cross-examination, Mr. McGregor testified that the lists of chemicals were not complete ingredient lists. A few chemicals used in the production of fentanyl were found on one list, along with others that had nothing to do with fentanyl. It was the same situation for the other drugs mentioned. I find that the probative value attached to these lists is minimal when compared to the prejudicial effect the Crown is asking that I draw from this evidence – the inference being that Mr. Mandal not only supplies chemicals for methamphetamine production, but that he also does so in relation to ketamine, fentanyl and MDMA. The lists of chemicals are therefore only in evidence for a limited purpose, which does not include how any of the items on those lists might be used in the production of substances other than methamphetamine.

THE LAW

Essential elements of the offence

[29] In this case, to find Mr. Mandal guilty on the offence charged, namely s.7.1(1)(a) of the CDSA, the Crown must prove the following: a. Mr. Mandal sold chemicals or other items to Mr. Pham; and b. In selling the chemicals or other items to Mr. Pham, Mr. Mandal intended they would be used to produce an unlawful controlled substance.

Presumption of innocence and reasonable doubt

[30] In a criminal trial, an accused is presumed innocent until the Crown has discharged its burden to prove the accused’s guilt beyond a reasonable doubt. A reasonable doubt is “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30.

[31] At the conclusion of the trial, if I am left with any reasonable doubt on any of the essential elements of the offence, I must acquit Mr. Mandal.

[32] As is his is right, Mr. Mandal chose not to testify at trial. Mr. Mandal does not have anything to prove. The onus is on the Crown entirely to prove Mr. Mandal’s guilt beyond a reasonable doubt.

Trial based on circumstantial evidence

[33] There is no direct evidence in this case that Mr. Mandal sold products to Mr. Pham intending that they be used to produce a prohibited substance. Rather, the Crown’s case relies on circumstantial evidence that, it is submitted, when considered cumulatively leads to the inference that Mr. Mandal is guilty of the offence charged beyond a reasonable doubt.

[34] As stated in the leading Supreme Court of Canada case on this issue, R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000: “the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.”: at para 38.

ANALYSIS

[35] I have carefully considered all of the evidence, the exhibits filed and the submissions of the Crown and the defence.

[36] As noted earlier, this is not a case about credibility. I must determine whether the facts in evidence establish Mr. Mandal’s guilt beyond a reasonable doubt on each element of the offence.

Sale of chemicals or other items to Mr. Pham

[37] Although it was not vigorously opposed, neither was there a concession from the defence that Mr. Mandal sold anything to Mr. Pham. Accordingly, the Crown must prove that Mr. Mandal sold chemicals or other items to Mr. Pham.

[38] The Crown submits that the circumstantial evidence that supports the inference that Mr. Mandal sold chemicals or other items to Mr. Pham includes: a. Text message communications wherein Mr. Pham asks Mr. Mandal if he has supply and confirms what chemicals he is seeking; b. Text message communication wherein Mr. Mandal confirms availability of supply and provides Mr. Pham with prices for various products; c. Text message communication from which an inference can be drawn that there were meet ups between Mr. Mandal and Mr. Pham; d. Text message communication that confirms amounts owing to Mr. Mandal by Mr. Pham; e. Text message communication wherein Mr. Pham asks if he can return a product that he describes as “no good”; f. Video surveillance that shows Mr. Pham transferring a blue jug to Mr. Mandal’s vehicle on March 23, 2019, which I should infer is the product return; g. The discovery of chemicals in the search of the Eldorado meth lab that match those Mr. Pham appeared to have ordered from Mr. Mandal in text messages; and h. The discovery of the box addressed to Mr. Mandal that fits the round glass bottomed flask in the search of the Eldorado meth lab.

[39] There are no invoices to document any sale from Mr. Mandal to Mr. Pham found in the search of Mr. Mandal’s home. There are no eyewitnesses to transactions between Mr. Mandal and Mr. Pham, except for a large blue jug with a handle being transferred from Mr. Pham to Mr. Mandal and a small item transferring from Mrs. Mandal to Mr. Pham. On the totality of the evidence, however, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Mandal sold items to Mr. Pham, including: iodine; toluene; acetone; caustic soda; hypophosphorous acid; and hydrochloric acid.

[40] Although there are no text messages involving the glass bottom round flask and heating mantle, I can draw the inference that – at least – the glass round bottom flask was provided to Mr. Pham by Mr. Mandal. I draw this inference as the shipping box for the glass bottom round flask, addressed to Mr. Mandal, was found at the Eldorado meth lab.

[41] I find that Mr. Mandal did sell or otherwise provide products to Mr. Pham that were used to produce methamphetamine illegally.

Mr. Mandal’s intention

[42] The second element of the offence that the Crown must prove is that Mr. Mandal sold the chemicals and other items to Mr. Pham intending that they be used to produce a controlled substance unlawfully.

[43] There is no question that Mr. Pham and his associates were operating an illegal clandestine methamphetamine lab in Eldorado. Indeed, it has been admitted. Further, I have found as a fact that Mr. Mandal sold chemicals to Mr. Pham that were used to produce methamphetamine.

[44] There is no evidence that Mr. Mandal was ever at the Eldorado meth lab. There is no evidence that Mr. Mandal ever produced methamphetamine himself or that methamphetamine was ever found his possession. The Crown’s position, again, is that when the totality of the evidence is considered, the only reasonable inference that I can draw is that Mr. Mandal knew that Mr. Pham would be producing methamphetamine with the products that he supplied.

[45] The Crown submits that that the following circumstantial evidence supports the inference that Mr. Mandal knew that Mr. Pham was producing methamphetamine with the products that he supplied: a. Unlike other invoices for purchases of chemicals found in Mr. Mandal’s possession (documenting Mr. Mandal’s purchase from legitimate vendors), there are no invoices or business records documenting Mr. Pham’s purchases of chemicals from Mr. Mandal. The Crown submits that this supports the inference that the sales to Mr. Pham were illegitimate in nature. b. The prices listed on invoices and waybills found at Mr. Mandal’s home that document transactions of him purchasing chemicals from various sources, when contrasted with prices quoted to Mr. Pham, demonstrate that Mr. Mandal marked up prices significantly. The Crown submits that this markup is indicative of the risk associated with this sort of black-market, illicit sale. c. Mr. Pham and Mr. Mandal appear to have met and conducted business in parking lots of commercial buildings. Again, the Crown submits that this is evidence of illegitimate transactions. d. The chemicals purchased by Mr. Pham from Mr. Mandal are used in the production of methamphetamine through the synthesis route. e. Mr. Pham inquired by text message as to whether Mr. Mandal has the “good hypo”. In response, Mr. Mandal notes “everybody used the same”. The Crown submits that I should infer that this implies that Mr. Mandal knew exactly how Mr. Pham, and everyone else, used the hypo. f. Mr. Mandal, in a text message responding to Mr. Pham’s concern about the hypo, asks if it is the first time that he has used the product and then says: “I will show you how to use it”. In a subsequent text message, Mr. Mandal says: “Bring iodine in a bottle and come, I will show you…it is slow but it works.” The Crown submits that this exchange, considering the evidence of Mr. McGregor, which describes the second step in methamphetamine production as involving a reaction between hypophsophorous acid and iodine, is particularly strong evidence that Mr. Mandal knew that Mr. Pham was in the business of producing methamphetamine. g. Mr. Pham texts Mr. Mandal requesting help with “garbage”. The Crown submits I can draw the inference that this request is in relation to garbage at the Eldorado meth lab. The fact that Mr. Pham does not specify where or what type of garbage suggests that Mr. Mandal knows the location and the nature of the garbage.

[46] The defence submits that the Crown has not proven that Mr. Mandal had knowledge that the products supplied to Mr. Pham would be used to produce methamphetamine for the following reasons: a. There is no evidence that Mr. Mandal supplied Mr. Pham with ephedrine, which is an ingredient in the production of methamphetamine which was found in at the Eldorado meth lab. b. The Crown’s own expert, Mr. McGregor, testified that there could be other (legitimate) uses for many of the chemicals in question. Toluene, for example, could be used as a cleaning agent. c. The only evidence that can be gleaned by the text messages with certainty is that chemicals were supplied by Mr. Mandal to Mr. Pham on a single occasion and that Mr. Pham owed Mr. Mandal money as a result of that original purchase. d. Although the surveillance video from March 23, 2019 shows a discussion between Mr. Mandal and Mr. Pham, shortly after the text messages about the “hypo”, Mr. Mandal could have been describing how to use it properly for a legitimate purpose. e. There is no evidence that Mr. Mandal was ever at the Eldorado meth lab. f. There is no reference to methamphetamine production in the text messages exchanged between Mr. Mandal and Mr. Pham. g. The fact that the purchases appear to be in cash, with no reference to taxes, is not uncommon as cash deals like this take place all the time. h. Meetings in parking lots could be the most convenient and do not prove anything. i. Mr. Mandal is a 77-year-old man, who operated various business in Toronto at one time but is now mostly retired and living in Trenton. Mr. Mandal appears to be operating a business from home, while doing charitable work at the Mosque.

[47] The Crown did not lead evidence to negate all legitimate or benign explanations for the sale of the chemicals to Mr. Pham by Mr. Mandal. That is not the law and is not what is required to obtain a conviction in a case involving circumstantial evidence.

[48] In considering the evidence at a whole, I am satisfied that the only reasonable inference that I can draw is that Mr. Mandal had knowledge that Mr. Pham was producing methamphetamine when he sold him chemicals in early 2019. The combination of chemicals sold to Mr. Pham, the casual and seemingly veiled nature of the text message communications, the lack of invoices or reference to taxes, and the meetups in parking lots are all factors that I have considered. I find most compelling the text messages between Mr. Mandal and Mr. Pham concerning the “hypo”, including the instruction to Mr. Pham to bring iodine and the offer to show him how to use it. In the context of Mr. McGregor’s testimony describing the synthesis method of methamphetamine production, this is compelling evidence of Mr. Mandal’s knowledge. In isolation, any one discrete piece of evidence would be insufficient, but collectively, I am satisfied that Mr. Mandal did indeed know what Mr. Pham was doing.

[49] I note that in finding that Mr. Mandal had knowledge that Mr. Pham was producing methamphetamine with the chemicals he supplied, I have not relied on alleged mark-ups in pricing or regulatory regimes alluded to in legitimate invoices found in Mr. Mandal’s possession. I have no confidence in the currency associated with these quotes, the invoices are not necessarily from the same timeframe, and without direct evidence on the matter, references to regulations contained in the invoices are hearsay and inadmissible. Further, as noted previously, I have not considered any evidence by Mr. McGregor related to the lists of chemicals found in Mr. Mandal’s home and their connection to the production of ketamine, fentanyl and MDMA.

Is knowledge sufficient to prove intention?

[50] I will now consider whether Mr. Mandal’s knowledge that Mr. Pham was producing methamphetamine with the chemicals he supplied is sufficient to find Mr. Mandal guilty of the offence charged.

[51] At the outset of these reasons, I noted that this case centred around the word “intending”. The Crown’s position is that knowledge can be equated with intention in the circumstances of this case. The defence submits that something much more than knowledge is required and that the Crown must prove that Mr. Mandal desired for methamphetamine to be produced.

[52] The offence established by s. 7.1(1) of the CDSA is unique in the sense that it necessarily involves another party. Due to the lack of caselaw considering s. 7.1(1) of the CDSA, the Crown and defence both refer the court to cases involving s. 21(1) of the Criminal Code, which creates the offences of aiding and abetting. It is submitted that the two offences are similar due to the involvement of another actor. Section 21(1) provides:

Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

[53] The mens rea requirement for aiding or abetting is purpose. The accused must have assisted the principal offender for the purpose of committing the crime.

[54] In considering s. 21(1) of the Criminal Code, in the case of R. v. Hibbert, [1995] 2 SCR 973, the Supreme Court of Canada held that “intention” was synonymous with “purpose” and clarified that “desire” should not be a prerequisite to establish purpose: see para 36. Referring to Mewett & Manning on Criminal Law, the Court in Hibbert highlighted the absurd consequence of importing an element of desire into the offence:

If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is...charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the robbery but to make $100"? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not: See para 32.

[55] I find that this analysis applies equally to s. 7.1(1) of the CDSA and reject the defence submission that the Crown must prove that Mr. Mandal experienced desire, or was otherwise invested, in Mr. Pham’s methamphetamine production. The suggestion that Mr. Mandal can avoid culpability because his intention was solely to make money from the sale of chemicals to Mr. Pham and he did not care about the outcome of the methamphetamine production, would result in the same absurd scenario as referred to in Hibbert.

[56] The Crown relies on the case of R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 to support the submission that Mr. Mandal’s knowledge that Mr. Pham was using the chemicals he supplied to produce methamphetamine is sufficient to establish his intention as required in s. 7.1(1) of the CDSA.

[57] Like in Hibbert, Briscoe involved s. 21(1) of the Criminal Code. At paragraph 18, in considering the mens rea requirement for the offence, the Court writes: “It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.”

[58] I am satisfied that in proving that Mr. Mandal had knowledge that Mr. Pham was using the chemicals he supplied to produce methamphetamine, the Crown has established that Mr. Mandal had intention as required in s. 7.1(1) of the CDSA.

[59] As an alternative argument, the Crown submits that if I am not satisfied that Mr. Mandal had knowledge of the ultimate use Mr. Pham would make of the chemicals, I should, at the very least, find that he was willfully blind and convict on that basis. In support of that position, the Crown relies on Briscoe where the Supreme Court of Canada held that the trial judge erred by not conducting an analysis of whether the accused was willfully blind after a finding that the accused did not have the requisite knowledge of the principal actor’s plans to murder the victim. Given my finding that Mr. Mandal knew that Mr. Pham was using the chemicals to produce methamphetamine, it is not necessary for me to consider willful blindness and I therefore decline to do so.

CONCLUSION

[60] After considering the evidence that I do accept cumulatively, the only reasonable inference I can draw is that Mr. Mandal sold chemicals to Mr. Pham intending that they be used to produce a controlled substance unlawfully. I therefore find Mr. Mandal guilty of the offence charged.

Muszynski J.

Released: March 7, 2023