R. v. Tran, 2019 ONCJ 336

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY —

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) FAILURE TO COMPLY WITH ORDER — Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Tran , 2019 ONCJ 336 DATE: 2019 05 17 COURT FILE No.: 17-10299 BETWEEN: HER MAJESTY THE QUEEN — AND — DIEN TRAN AND QUAN DOAN Before Justice P.T. O’Marra Heard on April 1, 2, and 3, 2019 Reasons for Judgment released on May 17, 2019

Erryl Taggart........................................................................................ counsel for the Crown Donna Pledge…………………................................... counsel for the accused Dien Tran Ben Heath………………………............................... counsel for the accused Quan Doan P.T. O’Marra J.: INTRODUCTION: [ 1 ] This is my judgment on the issue of committal. [ 2 ] Dien Tran and Quan Doan are jointly charged with unlawfully trafficking in a controlled substance, namely, Methamphetamine, contrary to section 5(1) of the Controlled Drugs and Substances Act . Ms.

Tran is further charged with the offence of possession of a controlled substance, namely, methamphetamine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. The Crown seeks committal on both charges. As well, the Crown argues that pursuant to section 548(1) (

a) of the Criminal Code of Canada , I should commit Mr. Doan to stand trial on count two, possession for the purpose of trafficking in Methamphetamine. The Defence argues that there is insufficient evidence to order both accused to stand trial on both charges. An Overview of the Evidence: [ 3 ] On August 29, 2019 Peel Police Street Crime and Gang Unit, were conducting surveillance of three individuals, Dien Tran, Quan Doan and Thom Pham, in regards to a drug investigation in the Town of Ancaster and the City of Mississauga. [ 4 ] Police observed Ms. Tran and Mr.

Doan, leave a residence located at 7232 Tippett Court, Mississauga. They left in a Porsche Cayenne and drove to the area of 600 John Street, Hamilton. Police observed an unknown male enter the rear passenger of the Porsche Cayenne. The vehicle drove around the block. The male quickly exited the vehicle. Police believed at the time that they had witnessed a hand to hand drug transaction and immediately arrested the unknown male.

A search incident to arrest revealed that the unknown male was in possession of approximately 81 grams of Methamphetamine. [ 5 ] Police followed the vehicle to a Macdonald’s parking lot located at 1015 Golf Links Road, Ancaster, and arrested Ms. Tran and Mr. Doan for trafficking in Methamphetamine and possession for the purpose of trafficking in Methamphetamine. [ 6 ] A search of the vehicle revealed that $3,845.00 in cash was located in a wallet inside a purse, along with Ms. Tran’s identification. A set of keys were seized from Mr. Doan. [ 7 ] Subsequently, police obtained and executed two

(2) Controlled Drugs and Substances Act warrants for the following residential addresses: 7232 Tippett Court, Mississauga and Unit #1, 47 Madonna Drive, Ancaster. [ 8 ] The following property was either seized or photographed from address 7232 Tippett Court, Mississauga: (1) 172 grams of marijuana.

(2) Plastic baggies inside a Dollarama shopping bag.

(3) Three (3) cellphones.

(4) An invoice in Dien Tran’s name for servicing of a Porsche Cayenne.

(5) An inhaler prescription in Dien Tran’s name.

(6) An expired Fallsview Casino platinum card in the name of Thi Dien Tran.

(7) An offer to finance a lease or purchase of a 2013 BMW in the name of Dien Tran, with an address of 110 Louisa Street, Kitchener. [ 9 ] The following property was seized or photographed from address Unit #1, 47 Madonna Drive, Ancaster:

(1) A pink piece of paper with the Tippett address, a bank account number written down, and dated August 23, 2017.

(2) Plastic baggies inside a shoe box near a refrigerator.

(3) Plastic baggies inside a Dollarama shopping bag.

(4) Four (4) baggies that contained approximately 29 grams of Methamphetamine located inside a ladies Michael Kors size 8 boot, wrapped and found inside a bedroom closet.

(5) A pair of size eight (8) ladies sandals.

(6) Several pairs of men’s running shoes near an empty Budweiser beer case.

The issue: [10] Both defendants argue that there is insufficient evidence of trafficking and possession to commit them to stand trial. It wasconceded that the quantity of Methamphetamine was for the purpose of trafficking. The Test for Possession: [11] Section 4(3) of the Criminal Code defines possession and that definition is adopted by

section 2 of the Controlled Drugs andSubstances Act. Possession can be actual, constructive or joint. Actual possession requires the individual to have the item in his or herpossession. Constructive possession involves having the item in a place for the use or benefit of himself or herself, or a third party. Jointpossession involves one or more, than one person having an item in his or her possession with the knowledge and consent of others inwhich case the item is deemed to be in the possession of all. [12] In all instances, both knowledge and control are required to establish possession.

In joint possession cases, consent must also beestablished but this element is an aspect of control. The Test for Trafficking: [13] Trafficking is defined in

section 2 of the Controlled Drugs and Substances Act, as the following: Traffic means, in respect of a substance included in any of Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. [14] Trafficking includes the "sale" of drugs, and a sale includes both the delivery of the drugs and the corresponding payment forthe drugs. The alleged transaction in this case, according to the Crown theory, included both the delivery of the drugs and the delivery ofthe payment.

The Approach to Evidence Tendered at a Preliminary Hearing and the Law of Inferences: [15] It is a well-settled rule of law that a preliminary hearing judge must determine whether there is any admissible evidence inrelation to each of the offences’ essential elements to permit a properly instructed jury, acting reasonably, to convict. (See: U.S.A. v.Sheppard, (SCC), [1977] 2 S.C.R. 1067; R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828. [16] I am also guided by the decision in R. v. Martin, (ON CA), [2001] O.J.

No. 4158 at para. 3 wherein theCourt of Appeal has indicated that the test is satisfied even where there is nothing more than a scintilla of evidence. [17] In assessing whether or not the Crown has tendered “sufficient” evidence in respect of each essential element, it must be bornein mind to what sufficiency refers. As noted by McLachlin J. in R. v. Charemski, (SCC), [1998] S.C.J.

No 23 at para.35, First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to"sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. Thismust constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establishthe essential elements of the case. [18] Direct and/or circumstantial evidence can support an order to stand trial. The evidence in this case is circumstantial.

TheCrown relies on police testimony, regarding their collective observations and surveillance of Ms. Tran and Mr. Doan, to prove theelements of possession and trafficking. Circumstantial evidence, whether testimonial or real in nature, does not speak for itself. Instead,one must apply logic, common sense and or human experience in determining whether a piece of circumstantial evidence on its own, orin combination with other evidence, is probative of a matter in issue.

That application of logic, common sense and/or human experiencemay be summed up as “inference drawing”. [19] It is not within my purview as the preliminary hearing judge to assess the credibility or the reliability of the evidence beforeme.

To do so would be to arrogate the function of the ultimate trier of fact. (See: Arcuri at para. 30.) [20] I am limited to a consideration of whether the evidence in question is capable of supporting or, to put it another way, could theevidence reasonably support, the inference sought by the Crown. (See: Arcuri at para. 30.) [21] My task is to assess the circumstantial evidence to determine if it supports the only possible inference to establish the elementsof both offences. I must be satisfied that the inference sought is a reasonable one.

Such inferences cannot be based on speculation, nomatter how seemingly reasonable: (See: R. v. Munoz, (ON SC), [2006] O.J.

No. 446 (SCJ) at para. 22.) In order forme to avoid engaging in speculation, I must be mindful of two important points that the court articulated in Munoz at paras. 26 and 28. “The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must beestablished by the evidence…..The second way in which inference drawing can become impermissible is when speculation occurs wherethe proposed inference cannot be reasonably and logically drawn from the established primary facts”. [22] Although I may be tempted to make an educated guess from a primary fact, based on common sense and human experience, Imust resist and rely upon the evidence. (See: U.S.A. v.

Huynh, (ON CA), [2005] O.J. No. 4074 (C.A.).)

[ 23 ] It is also necessary for me to consider the cumulative effect of the evidence that points towards the guilt on the part of both accused. This is even more important when the Crown’s case is premised wholly on circumstantial evidence and it is improper for me to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence. (See: R. v. Coke , [1996] O. J. No. 808 (SCJ) at para. 9 .) Analysis: [ 24 ] I am bound to follow the four (4) stage process set out for preliminary hearing judges involved in a circumstantial evidence case as set out in R. v. Franks , 2003 SKCA 70 . (

i) T he preliminary inquiry judge needs first to identify and delineate the essential elements of the offence. (ii) The court then needs to consider each element separately and determine whether the Crown has led any evidence in relation to that element, and if it has, whether the evidence is direct or circumstantial. (iii) With respect to each element that the Crown has led circumstantial evidence and no direct evidence, the court needs to engage in the "limited weighing" described by McLachlin C.J.C., to determine whether a reasonable jury properly instructed could - not would - draw the required inference for the proof of that particular element. (iv) The court then needs to coalesce and put together the results of the first three stages and decide "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". [ 25 ] Keeping in mind the process stated above, I now turn to the primary facts and the possible inferences that could or could not be drawn.

The Primary Facts: [ 26 ] In my view a jury could reasonably find the following primary facts:

(1) Peel police conducted surveillance on Ms. Tran, Mr. Doan and Thom Pham between August 1 and August 29, 2017.

(2) Two addresses namely, 7232 Tippett Court, Mississauga and Unit 1-47 Madonna Drive, Ancaster were observed by Peel police.

(3) On August 17, 2017 at 7:04 pm, Constable Hernandez observed Ms. Tran and Mr. Doan enter the Tippett residence. Ms. Tran used a key to open the door.

(4) On August 17, 2017 at an unknown time, Constable Rondinelli observed Thom Pham exit the Tippett address. He put one bag in a black BMW and another bag in a black Mercedes.

(5) On August 19, 2017 at 4:19 pm, Constable Hernandez observed Mr. Doan and Ms. Tran exit the Tippett residence with two (2) small children. Ms. Tran used a key to lock the door. All of them entered a Mercedes SUV and left.

(6) On August 19, 2017 at 6:19 pm, Constable Hernandez observed Ms. Tran drive into a Tim Horton’s drive-thru in a black Mercedes. Ms. Tran parked the driver’s side of her vehicle beside the driver’s side of a Honda Odyssey minivan. According to Constable Hernandez, it seemed like something was passed between the vehicles, and therefore, the interaction resembled a drug transaction. However, no take down was ordered.

(7) On August 19, 2017 at 8:50 pm, Constable Hernandez observed Ms. Tran, Mr. Doan and two children enter the Madonna residence. The couple carried bags into the residence. A key was used to gain entry.

(8) On August 24, 2017 at 1:54 am, Constable Canning observed Ms. Tran and Mr. Doan leave the Tippett residence carrying a bag.

(9) On August 24, 2017 at 1:58 pm, Constable Canning observed Mr. Doan exit the Tippett address to move a black Mercedes from the driveway that was parked perpendicular to a Blue Honda Civic.

(10) On August 24, 2017 at 2:12 pm, Constable Canning observed “T-3” Thom Pham exit the Tippett address and drove away.

(11) On August 29, 2017 at 2:15 pm, Constable Lorette observed, Ms. Tran, Mr. Doan, Thom Pham and two small children exit the Madonna address. They entered a Mercedes SUV. Mr. Doan was observed to place a garbage bag in the rear of the vehicle.

(12) On August 29, 2017 at 5:20 pm, Ms. Tran, Mr. Doan and two small children exit the Tippett residence. They entered the black Mercedes and travelled to a small plaza near Square One Mall. Ms. Tran was observed by Constable Hernandez to exit the vehicle. She walked around in the parking lot and talked on her cellphone. Eventually, Ms. Tran entered a parked grey Mercedes. Constable Hernandez observed Ms. Tran pass something to the driver. The driver reached back and put the object into a black bag in the rear seat. Ms. Tran returned to the black Mercedes.

(13) Shortly afterwards, a takedown of the grey Mercedes was ordered and it was subsequently boxed in by unmarked police cruisers on Highway #10. The driver was arrested and searched. A search of the grey Mercedes did not reveal any drugs. However, a large amount of cash was located which turned out to be a paralegal’s retainer. No charges were laid and the driver was permitted to leave.

(14) On August 29, 2017 at approximately 5:45-6:00 pm, Constable Rondinelli observed Mr. Doan drive up to the Tippett address in a Black Mercedes. Ms. Tran arrived in a Porsche Cayenne. Both entered the Tippett address. Ms. Tran used a key to enter the residence.

(15) On August 29, 2017 at 6:15 pm, Ms. Tran and Mr. Doan exited the Tippett address and entered the Porsche Cayenne.

(16) Mr. Doan was the driver and Ms. Tran was the passenger.

(17) They were observed by multiple police officers, to drive to Hamilton. They drove near a building located at 600 John Street and stopped.

(18) At 7:40 pm, an unknown male entered the rear passenger seat. The Porsche drove a short distance around the block. The male passenger exited the Porsche and walked towards an apartment building.

(19) The unknown male was arrested by Constable Rondinelli for possession of a controlled drug or substance.

(20) Constable Rondinelli searched the unknown male incident to arrest. He located in his right pant pocket, wrapped in a plastic bag, 29 grams of Methamphetamine.

(21) The police continued to follow the Porsche to a Macdonald’s drive thru parking lot located at the 1015 Golf Links Road, Ancaster.

(22) The police arrested both Ms. Tran and Mr. Doan.

(23) The police located 4 cellphones on the floor of the vehicle. Ms. Tran’s purse that contained her driver’s licence and $3,845.00 in cash in her wallet, was located in the glove box. Her driver’s licence stated an address of 110 Louisa Street, Kitchener.

(24) The police located a set of keys that had a key to the door of the residence located at Unit 1-47 Madonna Drive, Ancaster.

(25) Search warrants were executed at both addresses.

(26) No methamphetamine was located during the search of the Tippett address.

(27) At the Ancaster address, 81 grams of methamphetamine was located in a women’s boot, size eight (8), wrapped in a bag, inside a bedroom closet. Inference of a hand to hand drug transaction: [ 27 ] I find that a reasonable jury could not infer that on August 29, 2017, Ms. Tran and Mr. Doan participated in a drug transaction in Hamilton. [ 28 ] The only evidence I have on this issue was that officers observed an unknown male enter the rear of the Porsche Cayenne. No officer testified as to what occurred inside the vehicle.

There was no evidence of objects, including drugs and money being passed. [ 29 ] There was only an assumption, or a hunch, by the police that a hand to hand transaction had occurred. [ 30 ] Bearing in mind the ultimate standard of proof, would it be possible for a properly instructed jury to reasonably conclude that a hand-to-hand drug transaction had taken place? I find that a reasonable jury could not reach such a conclusion, and thus find that this is not an available inference. [ 31 ] There is no question that these actions are suspicious. Suspicion cannot equate to proof, however.

I find that the jury would have to engage in speculation and guesswork to conclude that the entry of the unknown male, a drive around the block and the unknown male found in possession of a large quantity of methamphetamine, without more, amounted to a hand-to-hand transaction.

It may very well have been the case that the unknown male entered the Porsche already in possession of the methamphetamine. [ 32 ] As was discovered by the police only a few hours previously, there may be other reasons large sums of cash are located in an individual’s wallet that may be consistent for other purposes, and not necessarily a drug purchase. [ 33 ] I find, then, that this evidence does not assist in determining possible inferences of trafficking in methamphetamine. Such evidence could only be of use if it could be inferred as a primary fact that Ms. Tran and Mr. Doan were engaged in a drug deal.

This primary fact could then be added to other factors in determining if an inference of trafficking in drugs could be drawn. The Occupancy and Residency of 7232 Tippett Court, Mississauga: [ 34 ] I find that a reasonable jury could draw an inference beyond a reasonable doubt that Ms. Tran occupied and lived at 7232 Tippett Court on the date the search warrant was executed. [ 35 ] I find that the following primary facts support the inference:

(1) Ms. Tran was observed to enter the residence by using a key just preceding the execution of the search warrant.

(2) Ms. Tran’s prescription medication was located in an upstairs bathroom.

(3) Mr. Tran’s expired Platinum member card from the Fallsview Casino was found in the residence.

(4) Ms. Tran was observed exiting the residence with small children.

(5) Ms. Tran was observed operating a Porsche Cayenne. There was documentation of a visit of servicing of the Porsche Cayenne in her name located in the residence.

(6) There was further documentation of a finance agreement with her name on it located in the residence for a BMW. [ 36 ] While these items alone would not provide the reasonable inference but collectively, I believe, that a jury could infer that Ms. Tran regularly occupied this residence. However, no methamphetamine was located in this residence. [ 37 ] With respect, to Mr. Doan, I do not believe a reasonable jury could infer that Mr. Doan occupied this residence. There was nothing in the search of the house that tied him to the residence.

Beyond occasionally coming and going from the residence, there was literally no evidence of occupancy. No physical evidence similarly linking the residence to Ms. Tran, was presented at the preliminary hearing that connected Mr. Doan to the Tippett residence. The Occupancy and Residency at Unit #1-47 Madonna Drive, Ancaster: [ 38 ] I am not satisfied that a reasonable jury could infer that both Mr. Doan and Ms. Tran occupied the Madonna residence. [ 39 ] The primary facts do show that Mr. Doan had access to the house as the police used the seized keys to access the house. Mr.

Doan was seen to access the residence and therefore there is a measure of control. However, no other evidence was presented to demonstrate that Mr. Doan could have been anything more than a frequent visitor to the residence. There was no evidence that a jury would have heard that the police located men’s clothing anywhere in the house, other than a few pairs of men’s running shoes near an empty Budweiser beer case. [ 40 ] With respect to Ms. Tran, the Crown argued that there were woman’s clothing in a bedroom closet where the drugs and size 8 lady’s shoes were located.

The drugs were found in a size 8 woman’s boot. However, the jury would not be presented with any evidence of Ms. Tran’s shoe size, or the number of bedrooms in the house, or whose clothes were located. [ 41 ] The police did observe Thom Pham access the house on one occasion. [ 42 ] Furthermore, Ms. Tran was only seen at the house on two occasions. It was unclear from the evidence if the police observed her to use a key to gain entry. Inference of knowledge and control over the drugs found inside the boot in the closet: [ 43 ] I find that a reasonable jury could not infer that either Ms. Tran or Mr.

Doan had knowledge and control over the drugs located in the boot wrapped in a bag found in a closet. [ 44 ] The jury would not have heard any evidence of whether or not woman’s clothing was located in the closet. As I have mentioned earlier, another individual and target of the police investigation was Thom Pham. He had access to the residence.

There was no evidence presented as to whose bedroom the drugs were found in, or who occupied that bedroom. [ 45 ] There was no evidence presented that the baggies located in the Dollarama shopping bags were the same baggies that the Methamphetamine was located in, either in the boot, or on the unknown male. [ 46 ] In my view, it would be left open to the jury to find that both parties had some access to the house, however, it would be difficult for a reasonable jury to infer that both or either party, had a measure of control over the bedroom. [ 47 ] The location of multiple cellphones in the home or in the Porsche Cayenne can be an indication of drug dealing, however, the jury would not have heard whose cellphones they were, or even if the phones were even operational. [ 48 ] I find, therefore, that a jury would have to resort to guesswork and speculation in attempting to assess possession of the Methamphetamine.

Keeping in mind the test for committal outlined in the early part of this judgment, I find that a reasonable jury could not infer that the Methamphetamine was in the possession, either individually or jointly, of either party. Conclusion: [ 49 ] I find that there is not enough evidence to put either Ms. Tran or Mr. Doan on trial for count #1. Therefore, they are both discharged on count #1. Ms. Tran is discharged on count #2. Mr. Doan will not have to stand trial on count #2. Released: May 17, 2019

Signed: Justice P.T. O’Marra