Court File and Parties

COURT FILE NO.: CR-22-90000308 CR-24-90000351 DATE: 20240603

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DUY TAM NGUYEN

Counsel: E. Skowron and D. Lumba, for the Crown K. Schofield, for Mr. Nguyen

HEARD: May 27-29, 2024

Reasons for Judgment

SCHRECK J.:

[1] Duy Tam Nguyen was arrested in the company of another man, Saengsouly Phankham, who had conducted several drug transactions with an undercover police officer. At the time of his arrest, Mr. Nguyen was in possession of a quantity of methamphetamine, some cash and keys to a unit in a rooming house which the police later searched and where they found methamphetamine, cocaine, firearms, drug trafficking paraphernalia and identification documents in Mr. Nguyen’s name. Mr. Nguyen had been seen by surveillance officers attending the building and then meeting with Mr. Phankham at times proximate to when Mr. Phankham sold drugs to the undercover officer.

[2] Mr. Nguyen is charged with possession of the methamphetamine found on his person for the purpose of trafficking (Count 1), possession of a non-restricted firearm without being the holder of a licence (Count 2), possession of a restricted firearm without being the holder of a licence (Count 3), possession of the proceeds of crime not exceeding $5000 (Count 4), possession of the methamphetamine found in the rooming house for the purpose of trafficking (Count 5) and possession of cocaine for the purpose of trafficking (Count 6). He has elected to be tried in this court without a jury.

[3] A number of facts were agreed to by counsel. The primary issues at trial were whether the circumstantial evidence proved beyond a reasonable doubt that Mr. Nguyen was in possession of any of the drugs or firearms and that the money found on his person was the proceeds of crime. A secondary issue was whether certain utterances made by Mr. Phankham at the time of his arrest, which were exculpatory of Mr. Nguyen, were admissible for their truth and, if so, what evidentiary weight should be accorded to them.

[4] The following reasons explain why I am satisfied beyond a reasonable doubt that Mr. Nguyen was in possession of the drugs and guns that were seized but not satisfied beyond a reasonable doubt that the money in his possession was the proceeds of crime.

I. Evidence

A. Drug Transactions and Related Surveillance Evidence

(i) The First Transaction – February 25, 2021

[5] An undercover police officer purchased crystal methamphetamine and cocaine from Saengsouly Phankham on five occasions between February 25 and March 16, 2021. There is no allegation that Mr. Nguyen was involved in the first transaction on February 25, which involved the purchase of 59.3 grams of methamphetamine for $1100.

(ii) The Second Transaction – March 5, 2021

[6] The second transaction took place on March 5, 2021. The undercover officer arranged to meet Mr. Phankham in front of the building where he lived on York Street. Mr. Phankham entered the officer’s vehicle and they drove to another location and parked. Mr. Phankham got out of the car and made a call on his phone.

[7] Two minutes later, a black Honda CRV pulled up behind the officer’s vehicle. Mr. Phankham briefly got into the passenger seat of the CRV, after which he returned to the officer’s vehicle and completed the transaction. The CRV was later observed to drive to the parking garage of a residential building on Stewart Street.

[8] The police did not make observations of the driver of the CRV. It was registered to a woman at an address in Mississauga. The same address appeared on two expired driver’s licences belonging to Mr. Nguyen which were seized later in the investigation, and it was also the address he used when he received a traffic ticket in April 2020.

(iii) The Third Transaction – March 15, 2021

[9] Throughout the day on March 15, 2021, surveillance officers observed an Asian male driving a black Mercedes to various locations. The Mercedes was registered to a woman at an address in the building on Stewart Street.

[10] At 5:49 p.m., the man drove it to the parking garage on Stewart Street. At 6:07 p.m., he left the garage and drove it to a house on Huron Street, arriving there at 6:14 p.m. The man got out of the vehicle and entered the house using a key. He left the house at 6:35 p.m. and drove to the location on York Street, where he met Mr. Phankham at 6:46 p.m.

[11] At 7:23 p.m. Mr. Phankham met with the undercover officer, entered his car and sold him 10.84 grams of cocaine for $700. While Mr. Phankham and the undercover officer were conducting the drug transaction, the man in the Mercedes drove it to the house on Huron Street and again entered it using a key. He left the house a few minutes later at 7:32 p.m. and then drove to York Street, where he once again met with Mr. Phankham.

(iv) The Fourth Transaction (Incomplete) – March 16, 2021

[12] On March 16, 2021, the undercover officer went to Mr. Phankham’s home on York Street, arriving at 5:46 p.m. While there, he agreed to purchase three ounces of methamphetamine and half an ounce of cocaine from Mr. Phankham for $2400. He left Mr. Phankham’s home at 6:05 p.m.

[13] Later that day, at 6:44 p.m., Mr. Nguyen was observed driving the black Mercedes to the house on Huron Street. He entered the house and left again at 6:58 p.m. From there, he drove to a location near Mr. Phankham’s home and Mr. Phankham got into the Mercedes at 7:12 p.m.

B. Arrests and Searches Incident to Arrest

[14] A minute after Mr. Phankham entered the Mercedes, the police stopped it and arrested both occupants.

[15] Mr. Nguyen was searched at the time of his arrest. The police found a clear plastic bag containing 174.37 grams of methamphetamine in the inner left chest pocket of his vest. They also found $645 in cash (one $5 bill, one $10 bill, 14 $20 bills, five $50 bills and one $100 bill) and a set of keys which were later found to be for the house on Huron Street.

[16] Mr. Phankham was in possession of 14.57 grams of cocaine and $905.00 in cash at the time of his arrest.

C. Mr. Phankham’s Utterances

[17] At the time he was arrested, Mr. Phankham made a number of comments to the police to the effect that Mr. Nguyen had not done anything wrong, including: “He doesn’t know anything about it” and “That’s mine, that’s mine, that’s mine, he doesn’t know anything about it.” When he was cautioned and told that anything he said could be used in evidence, he said, “Yeah, no, but all I know, but my friend doesn’t know anything [indiscernible]” and “… I just feel bad ‘cause, you know, he’s, just, you know, he’s [indiscernible].” Later, he said “… this is all my fault, [indiscernible] my friend just [indiscernible].” The arresting officer cautioned him not to say anything, to which he responded, “No, I know, but I feel bad for him, because you know, because he didn’t do anything, you know.”

[18] After Mr. Phankham continued to say that Mr. Nguyen had not done anything, the arresting officer again advised him not to say anything. Mr. Phankham replied, “No, I don’t mind saying because it is my fault, like for the crime I’m doing, you know.” Later, he said that he felt bad that Mr. Nguyen was going to get in trouble for no reason.

D. Search of the Huron Street Address

(i) The Keys

[19] Later the same day, the police executed a search warrant at the house on Huron Street, which turned out to be a rooming house containing a number of rooms. The police were able to enter the house using one of the keys that had been seized from Mr. Nguyen. Two other keys that were seized from Mr. Nguyen opened the doors to Units 1 and 2 on the third floor. The police tried the same keys in some other doors, but they did not work. They did not try all of the doors in the building and were unable to say which doors the keys opened.

(ii) Drugs and Trafficking Paraphernalia

[20] Unit 2 contained nothing of note. Unit 1 was small and contained a bed, a table and a dresser. There was a closet without a door in which there were shelves. Inside the closet was a money counter, three bags of dextrose, an electronic scale, two jugs of acetone, and some wrapping which the police believed had been used to wrap a one-kilogram brick of cocaine. There is no issue that these are items are drug trafficking paraphernalia.

[21] Under the table the police found a shoe box containing a glass container in which there was crack cocaine, cutlery, a box of baking soda and an inoperable electronic scale. Inside a silver suitcase near the bed the police found quantities of methamphetamine and cocaine. In total, there was 59.64 grams of crack cocaine, 1.34 kilograms of powder cocaine and 386.05 grams of methamphetamine inside the unit.

(iii) Firearms

[22] A 20-gauge pistol-grip shotgun was found under the mattress of the bed. It was loaded with an unknown number of shells. A box near the bed contained a case in which there was a .45 calibre handgun and a magazine loaded with an unknown number of rounds. An additional 100 rounds of .45 calibre ammunition and another magazine containing shotgun shells was also inside the box.

[23] It is an agreed fact that the shotgun is a “non-restricted firearm” and the handgun is a “restricted firearm,” as defined in s. 84(1) of the Criminal Code. Mr. Nguyen is not the holder of a licence or authorization for either firearm.

(iv) Identification Documents

[24] A passport and two driver’s licences, all of which were in Mr. Nguyen’s name and all of which were expired, were found on or in the dresser. D.C. Eduardo Miranda, who seized these items, testified that the driver’s licences were on top of the dresser when the police entered. In his notes, however, he wrote that he had found the licences inside the top drawer of the dresser. When asked to explain the inconsistency, D.C. Miranda at first said that his notes were consistent with his testimony, and then said that English was not his first language.

[25] D.C. Miranda agreed that he found it strange that the expired driver’s licences were on top of the dresser when the police entered. D.C. Miranda, who was an experienced drug squad officer who had conducted many debriefings of accused and informants within the drug subculture, agreed that he had heard of instances where people had planted identification documents belonging to other people inside premises where drugs were stored in order to conceal their own identities if the premises were ever searched.

(v) Other Items

[26] The police also located a prescription pill bottle with Mr. Nguyen’s name on it as well as two working cell phones and a laptop computer.

E. Forensic Evidence

[27] Attempts were made to obtain fingerprints from the firearms and the magazines. They were unsuccessful. No DNA test results were obtained.

[28] None of the cells phones seized during the investigation were forensically examined. The laptop computer was not seized.

F. The Expert Evidence

(i) Value of the Drugs

[29] A report prepared by D.C. Rob Asner, whom counsel agreed should be qualified as an expert in the distribution, sale, packaging and pricing of cocaine and methamphetamine, was admitted on consent for its truth. According to him, the methamphetamine found on Mr. Nguyen’s person was worth between $3,115 and $4,359 if sold by the ounce and between $10,462 and $13,950 if sold by the gram.

[30] According to D.C. Asner, the crack cocaine seized at the Huron Street address was worth between $2600 and $3200 if sold by the ounce and between $4771 and $5964 if sold by the gram. The powder cocaine was worth between $48,240 and $73,700 if sold by the kilogram and between $106,880 and $133,600 if sold by the gram. The methamphetamine was worth between $6,895 and $9,651 if sold by the ounce and between $23,163 and $30,884 if sold by the gram.

[31] There is no issue that the amounts found were inconsistent with being for personal use.

(ii) Proceeds of Crime

[32] With respect to the cash found on Mr. Nguyen’s person, D.C. Asner stated in his report:

Cash is the preferred method of payment for illicit drugs. It is not uncommon to find someone who is trafficking illicit substances to be in possession of quantities of cash as a result of the proceeds of drug trafficking. The numerous amount [sic] of twenty and fifty dollar bills is consistent with proceeds of street and mid-level drug trafficking without additional evidence to the contrary.

II. Analysis

A. Relevant Legal Principles

(i) The Burden of Proof

[33] Mr. Nguyen is presumed to be innocent of each of the charges he is facing. He can only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown and never shifts. There is no onus on Mr. Nguyen to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is far closer to that standard than it is to proof on a balance of probabilities.

(ii) Possession

[34] None of the firearms or controlled substances that were seized from the Huron Street residence were in the personal possession of Mr. Nguyen. The issue is whether he was in constructive possession of any of these items. According to s. 4(3)(a)(ii) of the Criminal Code, constructive possession exists if a person has the item in question “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.” Thus, to prove constructive possession, the Crown must prove that the defendant (1) has knowledge of the character of the item in question; (2) knowingly put or kept the item in a particular place (which need not belong to or be owned by him); and (3) intends to have the item in the place for his own use or benefit or that of another person: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 44-47; R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 600, at paras. 16-17; R. v. Choudhury, 2021 ONCA 560, at para. 19.

[35] All types of possession, including personal possession, require the Crown to prove the defendant had knowledge of the nature of the item in question, some control over it, and an intention to possess it: R. v. Pham, (2005), 77 O.R. (3d) 401 (C.A.), at paras. 15-16, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940; Lights, at para. 45.

(iii) Circumstantial Evidence

[36] The evidence in this case is largely circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, where Cromwell J. explained that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.” Considering circumstantial evidence in this way ensures that the trier of fact does not “fill in the blanks” or draw an inference of guilt too readily.

[37] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. This is because a reasonable doubt can arise from the evidence, or from an absence of evidence. However, the Crown is not required to negate every possible conjecture, no matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[38] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as an inference of guilt to be reasonable. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[39] Given the nature of the inquiry described in Villaroman, the trier of fact in a circumstantial case will often be asked to consider various potential inferences that arise from the evidence other than guilt. While doing so is appropriate, the trier of fact must not lose sight of the fact that the burden of proof is always on the Crown and there is no onus on the defence to establish an alternative inference.

[40] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: Choudhury, at para. 19.

B. Admissibility of Hearsay Statement

(i) Overview

[41] Mr. Phankham made a number of comments at the time that he and Mr. Nguyen were arrested to the effect that Mr. Nguyen was not involved in any criminal activity. The defence is unable to call Mr. Phankham as a witness because he is now deceased. Instead, the defence seeks to have the utterances he made admitted for their truth as an exception to the rule against hearsay. It is the defence position that Mr. Phankham’s utterances are admissible pursuant to the traditional categorical exception to the hearsay rule that exists for declarations made against penal interest, or, in the alternative, pursuant to the principled exception on the basis that they are necessary and reliable. The Crown takes the position that neither exception applies.

[42] The framework governing the admissibility of hearsay evidence is well established and was set out in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

See also R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1, at paras. 48-51; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42.

[43] The onus of establishing the admissibility of evidence pursuant to the principled exception rests on the party seeking admission: Khelawon, at para. 47. A party that opposes the admission of evidence falling within a traditional exception bears the onus of establishing that necessity or reliability are lacking: Mapara, at para. 37.

(ii) The Declarations Against Penal Interests Exception

[44] In this case, the defence relies on the traditional exception for declarations made against penal interest. Declarations are admissible pursuant to that exception when the following criteria are met, as was explained in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88:

The principles that govern the admissibility of declarations against penal interest are these:

i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;

ii. the vulnerability to penal consequences must not be remote;

iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;

iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and

v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.

See also R. v. Young, 2021 ONCA 535, 407 C.C.C. (3d) 265, at para. 24; R. v. Demeter, [1978] 1 S.C.R. 538, at p. 544; R. v. O’Brien, [1978] 1 S.C.R. 591, at p. 600; R. v. Lucier, [1982] 1 S.C.R. 28, at pp. 32-33.

[45] The Crown accepts that all of the criteria in Tash are met, but submits that this is one of those rare cases described in Mapara where the indicia of reliability are lacking. The Crown submits that there is substantial evidence that Mr. Nguyen had knowledge of the drugs seized from his person, and that Mr. Phankham’s assertions to the contrary are therefore unreliable.

(iii) The “Rare Case” Exception to the Exception

[46] In R. v. Nurse, 2019 ONCA 260, 374 C.C.C. (3d) 181, at para. 92, the Ontario Court of Appeal held that the “rare case” exception to a traditional exception such as that on which the Crown relies “must be unique to the case at hand” and any reliability concerns “must go to threshold reliability, rather than weaknesses in the evidence that go to weight and can properly be assessed by the trier of fact in determining ultimate reliability.” Concerns about the declarant’s honesty or sincerity do not justify the “rare case” exception: R. v. MacKinnon, 2022 ONCA 811, 164 O.R. (3d) 535, at para. 48. This follows from the crucial distinction drawn in the caselaw between threshold reliability and ultimate reliability. The first relates to admissibility while the latter is for the trier of fact to determine: Khelawon, at para. 50; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 38-41.

[47] Because of the distinction between threshold and ultimate reliability, whether a hearsay statement is corroborated by other evidence is usually irrelevant to the admissibility inquiry in cases where the principled exception is at issue, as was explained in Bradshaw, at para. 44:

In my view, the rationale for the rule against hearsay and the jurisprudence of this Court make clear that not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[48] The same reasoning applies to the role that corroborative evidence can play in determining whether the “rare case” exception applies to a traditional exception. Just as the mere fact that other evidence is consistent with the truth of the hearsay statement cannot, without more, establish reliability, the mere fact that other evidence is inconsistent with the truth of the hearsay statement cannot, without more, establish a lack of reliability. This is so for two reasons.

[49] First, the hearsay admissibility inquiry cannot be allowed to turn into a full trial on the merits: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 57; Bradshaw, at para. 42. Second, there will be many cases where the opposing party can point to some evidence that contradicts the hearsay statement which is otherwise admissible pursuant to a traditional exception. If this was sufficient to justify excluding the statement, then the “rare case” exception would not be rare at all.

(iv) Conclusion

[50] For these reasons, the fact that the Crown can point to other evidence that contradicts Mr. Phankham’s assertions that Mr. Nguyen did not know anything about the illegal substances is irrelevant to the issue of whether those assertions are admissible pursuant to the statement against penal interest exception. As the Crown accepts that all the requirements of that exception are otherwise met, the evidence is admissible.

C. The Circumstantial Evidence in This Case

[51] The circumstantial evidence linking Mr. Nguyen to the items seized from the Huron Street address can be summarized as follows:

• in the course of selling methamphetamine to the undercover officer on March 5, 2021, Mr. Phankham interacted with the occupant of a Honda CRV that is registered to an address used by Mr. Nguyen and which later parked in the parking lot of a building he is seen going to several times;
• about half an hour before he sold cocaine to the undercover officer on March 15, 2021, Mr. Phankham interacted with the driver of a black Mercedes who had recently left the Huron Street address;
• Mr. Nguyen drove the same black Mercedes to the Huron Street address on March 16, 2021 and after leaving drove directly to meet Mr. Phankham, who had just agreed to sell drugs to the undercover officer;
• at the time of his arrest, Mr. Nguyen was in possession of crystal methamphetamine similar to that found at the Huron Street address;
• Mr. Nguyen was in possession of keys that opened the Huron Street building and the unit in which the contraband was found;
• Mr. Nguyen’s expired passport and driver’s licences were found inside the unit, as was a prescription pill bottle with his name on it.

[52] Counsel for Mr. Nguyen posited various alternative explanations for the circumstantial evidence in this case:

• Mr. Nguyen may have entered the Huron Street building to meet someone in the common area but did not enter Unit 1;
• the keys Mr. Nguyen had opened more than one unit in the building, which raises the possibility that someone else may have possessed keys that also opened Unit 1;
• D.C. Miranda testified to being aware of instances where identification documents have been used to mislead the police about the true identities of the users of premises where drugs were stored, and Mr. Nguyen’s documents were all expired and therefore could have been taken from him without being missed;
• none of the contraband was in plain view, so Mr. Nguyen could have been inside Unit 1 without having knowledge of its presence;

In addition to this, counsel relies on Mr. Phankham’s statements to the effect that Mr. Nguyen did not know about the drugs. She submits that it is possible that Mr. Phankham put the drugs in Mr. Nguyen’s pocket once he realized that the police were about to arrest them.

[53] I have given careful consideration to counsel’s submissions. Essentially, they amount to the following theories: Mr. Nguyen had some connection to the Huron Street address but never entered the unit for which he had keys and that another person with access to that unit had somehow obtained his identification and planted it there. Alternatively, Mr. Nguyen had entered Unit 1 but some other person who had access to the premises had hidden drugs and guns there and Mr. Nguyen did not know this, notwithstanding that various drug trafficking paraphernalia were in plain view. Furthermore, by sheer coincidence, Mr. Nguyen happened to interact with Mr. Phankham on more than one occasion at times proximate to when Mr. Phankham conducted transactions involving the very same drugs that were hidden in Unit 1. In my view, none of these theories are plausible or reasonable.

[54] Of course, there is no onus on Mr. Nguyen to come up with an explanation for the evidence or satisfy the court that there is an alternative inference other than his guilt. Rather, the burden is on the Crown to establish that his guilt is the only reasonable inference to be drawn from the evidence. Having carefully considered all of the evidence and the lack of evidence, I have concluded that the Crown has done so.

[55] While Mr. Phankham’s utterances at the time of his arrest are admissible, I do not accept that they are true. The methamphetamine was in a clear plastic bag that was found in Mr. Nguyen’s inside pocket at a time that he had recently left the Huron Street address where methamphetamine was stored. He must have known that he was in possession of it. Mr. Phankham’s utterances were clearly an attempt to assist Mr. Nguyen.

D. Counts in the Indictment

(i) Counts 1, 2, 3, 5 and 6

[56] The Crown has established that Mr. Nguyen was in possession of the methamphetamine in his pocket as well as the drugs and guns in Unit 1. The other elements of the offences in Counts 1, 2, 3, 5 and 6 are not in dispute. Mr. Nguyen is therefore found guilty on those counts.

(ii) Count 4

[57] With respect to Count 4, the Crown relies on D.C. Asner’s opinion that amount of cash found on Mr. Nguyen at the time of his arrest and the various denominations from which it was made up was “consistent with” being the proceeds of drug trafficking “without additional evidence to the contrary.” “Consistency” does not amount to proof beyond a reasonable doubt. Nor can the Crown rely on the fact that there is no “evidence to the contrary” to meet its burden. The amount involved, $645, is not that large. Mr. Nguyen is found not guilty on Count 4.

III. Disposition

[58] Mr. Nguyen is found guilty on Counts 1, 2, 3, 5 and 6. He is found not guilty on Count 4.

Justice P.A. Schreck

Released: June 3, 2024