R. v. Do Date:, 2012 BCPC 487

Citation: R. v. Do Date: 20121107 2012 BCPC 0487 File No: 179485-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VAN TRONG DO ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: D. Jahani Counsel for the Defendant: G. DelBigio Place of Hearing: Surrey , B.C. Dates of Hearing: January 17, May 28, October 9. 2012 Date of Judgment: November 7, 2012 [ 1 ] THE COURT : Van Trong Do is before the court for his trial on Information 179485-2-C, which sets out five counts arising

from an investigation by Delta Police into a dial-a-dope operation on March 10 of 2010. Mr. Do is jointly charged with Dylan Bastian Herman as follows: First, with unlawful possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . Second, that he unlawfully trafficked in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act . Counts 3, 4 and 5 allege that he and Mr.

Herman unlawfully possessed Heroin, Oxycodone and Cannabis Marihuana for the purpose of trafficking, all contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The evidence establishes that the police were focused on a telephone number they believed provided access to a dial-a-dope operation, that number being 778-999-9745, and an apartment they believed was related to that operation, the apartment being unit 310 - 12083 - 93A Street in Surrey, British Columbia. [ 3 ] The Crown has called five police investigators, the landlord of the apartment and a representative of the telephone service provider, Rogers Communication.

No evidence was called by the defence. The defence argues that in all the circumstances here the Crown has failed to prove beyond a reasonable doubt the necessary elements to establish Mr. Do had possession of the substances discovered during the investigation. [ 4 ] Those circumstances are the following: On September 1 of 2009, Mr. Do signed a tenancy agreement with Bibun Narayan to rent unit 310 at 12083 - 93A Street for $800 per month to be paid on the first of each month. The term was for one year. Mr. Do was given one set of four keys to open the front building door, the unit door, the garage and the gym.

He was not permitted by the agreement to make duplicate keys. He was not permitted to sublet the unit, nor to allow other people to live there without the permission of the landlord. [ 5 ] Mr. Do did not ask to duplicate the keys, to sublet or to allow anyone else to live there. He paid his rent on time. The landlord always came and collected the rent in cash at the apartment and with the consent of Mr. Do walked through the apartment to ensure it was in good condition. He saw a friend of Mr. Do's there on occasion, but had no reason to believe the apartment was being used other than by Mr. Do as agreed.

When he collected the March 2010 rent on the last day of February of 2010 he observed the kitchen counter and the living room table were in a messy state and he asked Mr. Do to tidy it up. He considered Mr. Do a good tenant. He noted that Mr. Do on occasion invited him to enter the suite when Mr. Do was not there to retrieve the rent, but Mr. Narayan did not do so because it was contrary to their agreement. [ 6 ] The investigation into the dial-a-dope operation focusing on the phone number and the apartment I mentioned came to a conclusion on March 10th of 2010.

On that date surveillance at the apartment unit and the building and an undercover purchase of cocaine initiated by a call to the phone number referred to led to the execution of a search warrant. At 2:10 p.m. Csts. Davidson and Garnham attended the hallway outside unit 310. They acted as if they were conducting measurements in the hallway as a ruse. As they arrived they observed two males, the accused, Mr. Do, and a Caucasian male, Mr. Herman, leave the unit. Mr. Herman locked the door with a key. The officers then left the building and returned to their headquarters. At 5:30 p.m. Cst.

Davidson returned to the hallway outside the unit and again observed the unit as he pretended again to be taking measurements. At about this time he saw Mr. Herman return alone to the suite and enter using a key. He did not appear to be carrying anything. At about 5:45 p.m. Cst. Garnham took up surveillance at the front of the building. [ 7 ] Cst. Bradley Coutu was the officer designated to make an undercover purchase of cocaine. He was given one ten-dollar bill and three $20 bills by Cst. Vaughn-Smith who had recorded their serial numbers. Cst.

Coutu called the target phone number and set up an undercover purchase of cocaine to occur at a convenience store at 92nd and Scott Road. He went there at 6:10 p.m. Cst. Vaughn- Smith provided cover. Cst. Coutu had to call the target phone number again because no one came to meet him at the convenience store. He was directed to a noodle shop. At 6:50 p.m. Cst. Davidson observed Mr. Herman leave the unit and lock the door. He could not see him carrying anything. [ 8 ] A male dressed in black attended the noodle shop and sold Cst. Coutu two rocks of cocaine for $50. Cst. Coutu paid with cash provided by Cst.

Vaughn-Smith. At 7:03, Cst. Garnham was informed by radio of the undercover transaction. At 7:04 p.m. Cst. Davidson observed Mr. Herman return to the unit and enter. At about 7:10 p.m. Cst. Davidson observed Mr. Do leave the suite, lock the door and depart. Cst. Garnham joined Cst. Davidson in the hall shortly after Mr. Do's departure. They maintained surveillance of the suite. No one came or went until 8:46 p.m. when other police officers and an Emergency Response Team arrived to execute a search warrant. When the suite was entered Mr. Herman was found alone in the unit.

He was seated in a sofa chair in the single bedroom of the unit with a laptop computer on his lap and he was arrested. [ 9 ] Officers then began to conduct a search of the unit pursuant to the warrant. No issue was taken as to its validity or the search itself and no issue was taken with respect to continuity of any of the items seized. The defence admits that the drugs found in the apartment were there for the purpose of trafficking. [ 10 ] Cst. Gallamore arrived at the unit at 9:05 p.m.

While in the suite as the search proceeded he observed a passport and took notice of the photograph of the male person whose passport it was. He cannot recall the name of the person. At 10:25 p.m. while in the hallway outside unit 310 he observed a male approaching along the hall. He recognized this male as being the same person as the passport photo and he arrested that person for possession for the purpose of trafficking. That person was Mr. Do. When searched he had a wallet with a BCID card, an RBC Visa card, a Client card and Social Insurance card all in his name, and a set of keys.

Those items were collectively marked as Exhibit 48 on the trial. [ 11 ] Cst. Davidson was assigned to photograph the unit and to record exhibits seized during the search. Exhibit 2 in these proceedings is a collection of his photographs. The first seven photographs show the kitchen counter.

It is cluttered with numerous items, including the following: a bag containing crack cocaine in cake form, weighing 22.31 grams, a cutting board type surface with chips of cocaine, weighing 3.81 grams, four rocks of cocaine weighing .52 grams, a bag containing 18 baggies of heroin, a further five baggies containing cocaine weighing 1.26 grams, a mixing bowl and strainer with cocaine residue, weighing .01 grams, a digital scale with cocaine residue, weighing .12 grams, Mr. Herman's wallet containing $310 cash, a quantity of loose cash, including the bills used by Cst.

Coutu to make the undercover buy, a box of baking soda which can be used in the production of crack cocaine. The counter is also cluttered with a variety of other items, including bags, a beer carton, fast food packaging, utensils, bottles and containers of various

kinds. Cash was located on a stool next to the counter. A black ball cap was located on the counter. There is some evidence Mr. Herman was seen wearing a black ball cap, but this one was not linked to him in the evidence. [ 12 ] Elsewhere in the kitchen were located a Rogers cell phone bill in the name of Van Trong Do with the unit address and relating to the number 778-999-9745, dated February 6th of 2010. A Shaw invoice, dated February 28th, 2010 in his name for that address, and an RBC Visa statement for the period January 30 to February 26, 2010 in his name at that address.

They are Exhibits 21 through 23 in these proceedings. [ 13 ] In the living room area a cell phone was observed on a cluttered coffee table and a second cell phone was also located in the living room. A jacket was found on the floor in the living room. In an inside pocket were two unlabelled pill containers, one containing 47 Oxycodone pills and the other containing 58 Oxycodone pills. There is no specific evidence as to whose jackets this was. [ 14 ] In the bedroom a marihuana grinder contained 4.2 grams of marihuana. $710 in cash was found on a bedside table in a black box.

On top of a speaker box were a Shaw bill, dated January 29, 2010 in Mr. Do's name at the unit address, a Royal Bank Mutual Fund letter addressed to him at that address, and a Shaw Cable letter also to him at that address. [ 15 ] In a bedroom cupboard a tin containing 13.06 grams of marihuana was located, cash totalling $1,143 on a shelf, and the residential tenancy agreement for the unit listing Mr. Do as the tenant. Also found elsewhere in the bedroom was $1,080 in cash. [ 16 ] Photographs in Exhibit 2 show these large quantities of cash lying loose on the bedroom shelf.

On a shelf in the bedroom was a Ziploc container which contained a photo Canadian citizenship card, a B.C. driver's licence and a Canadian passport all in Mr. Do's name and $900 in cash. On the floor of the bedroom closet an investor profile document was found in Mr. Do's name. A third cell phone was located in the bedroom on a table. [ 17 ] At 9:27 p.m. Cst. Coutu telephoned the dial-a-dope line and spoke to Cst. McKinnell who answered. Although that constable did not give evidence at trial, there is evidence from Cst. Davidson that he participated in the search of the unit.

Although there is no direct evidence as to which cell phone found in the unit was the one used as the dial-a-dope line, I accept that it was in the suite and seized by police during the search and subsequently answered by Cst. McKinnell. [ 18 ] The total amount of cash located in the suite was $4,480. To be added to this amount is the amount of $310 already referred to which was found in Mr. Herman's wallet. Cst. Davidson's conclusion based on his observations of the unit was that it was being lived in at the time.

On the evidence before me, including my examination of the photographs, the presence of some food in the refrigerator and on various surfaces, some clothing and what appears to be bedding and a pillow on the bed also observed by Mr. Narayan on earlier dates, and items in the bathroom and the documents noted, I agree with the conclusion that the unit was being lived in. [ 19 ] Crown counsel says that on this evidence the possession by Mr. Do of these drugs both constructively and jointly with Mr. Herman has been proven beyond a reasonable doubt. [ 20 ] Mr. DelBigio on behalf of Mr.

Do says that the Crown's case requires I draw an inference that Mr. Do knew of the presence of the drugs in the suite and exercised some level of control over them. He says the circumstances surrounding Mr. Herman's presence and the movement of the parties makes it unsafe to draw that inference. He points to Mr. Herman's involvement in the undercover transaction, his access to the suite, his relaxed presence alone there at the time of the search, the manner in which Mr. DelBigio says he appears to have emptied his pockets onto the counter and the passage of time from Mr.

Do's departure at about 7:10 p.m. until the search was initiated at 8:46 p.m., during which Mr. DelBigio says there was ample time for Mr. Herman to have laid out the various indicia of a drug trafficking operation about the suite without the knowledge or consent of Mr. Do. [ 21 ] Mr. DelBigio points to the analysis in R. v. Chualna, a decision of the British Columbia Court of Appeal in 2003. He refers to paragraph 26 as highlighting the deficiencies in the Crown's case here.

In reviewing the trial judge's analysis of the issue of possession in that case the court stated: The learned judge inferred that the two men were "partners in crime," or engaged in a joint venture, and reasoned from the inference that they had joint possession of the stolen van and the prohibited weapons. But to conclude that there was a joint venture between the two is to assume the very facts the Crown was obliged to prove - namely, the appellant's knowledge and consent.

The trial judge's reasoning by-passed an analysis of the evidence to see whether the appellant's knowledge and consent was the only reasonable inference that could be drawn. The appellant and McLellan could not have been "partners in crime" to the extent necessary to fix the appellant with requisite knowledge, unless the knowledge was the only reasonable inference available on the evidence. A positive answer to the question of whether there was a joint venture assumed knowledge and consent. ( R. v. Chualna, 2003 BCCA 650 at para. 26 ) [ 22 ] Mr.

DelBigio says the Crown is asking the court here to draw an inference against Mr. Do where another reasonable inference is available on the evidence. The Crown says such an analysis requires the court to engage in speculation in the face of overwhelming evidence which is uncontroverted. In undertaking this analysis I am mindful as the Court of Appeal has stated in R. v.

Fisher in 2005, at paragraph 47 that: ... an accused person may be convicted solely on the basis of circumstantial evidence provided the evidence is consistent with the accused "having committed the act" and is "inconsistent with any other rational conclusion" ... and that a rational conclusion other than that an accused committed the offence must have a basis in evidence, not mere speculation. ( R. v Fisher 2005 BCCA 444 at para. 47 ) [ 23 ] The definition of possession is set out in s. 4(3) of the Criminal Code : (

a) a person has anything in possession when he has it in his personal possession or knowingly

(

i) has it in the actual possession or custody of another person, or (ii) has it 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;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [24] The

section creates three types of possession: They are personal possession under s. 4(3)(a), constructive possession under s.4(3)(a)(

i) and (ii), and joint possession under s. 4(3)(b). The case here focuses on constructive possession and joint possession. Constructive possession requires there be: ...knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. (R. v. Pham, (ON CA), [2005] OJ 5127 (Ont CA) at para. 15; aff'd without reasons [2006] SCJ No. 26.) [25] Joint possession requires that "there must be knowledge, consent, and a measure of control on the part of the person deemed tobe in possession." (R. v. Pham, supra para. 16) [26] The following from R. v.

Sparling in 2008 in the Ontario High Court and restated by the Ontario Court of Appeal in Pham atparagraph 17 addresses the element of knowledge. The court stated there: There is no direct evidence of the appellant's knowledge of the presence of narcotics in the residence. It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence.

In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge. [27] The court may draw: ... appropriate inferences from evidence that a prohibited drug is found in a room under the control of the accused and where there is alsoevidence from which an inference may properly be drawn that the accused was aware of the presence of the drug. (R. v.

Pham, suprapara. 18; Chambers and The Queen (1985), (ON CA), 20 CCC (3d) 440 (Ont CA)) [28] The following passage from the Ontario Court of Appeal decision in Chambers is often quoted when addressing the elements ofconsent and control. The court stated: There was evidence that the room in which the drug was found was the respondent's room and, consequently, she could give or withholdher consent to the drug being in her room. Mr.

Code contended, however, that the respondent's control over the room where the cocainewas found cannot be equated with a measure of control over the drug itself which he said imports the right to the benefit of the drugs orits proceeds. We disagree. In our view the respondent's right to grant or withhold her consent to the drug being stored in her room gaveher the necessary measure of control over the drug essential to constitute "consent" within s. 3(4)(b). [Now s. 4(3)(b)] Mr.

Code's argument, if pressed to the logical conclusion, leads to the startling result that a warehouseman who knowingly stores on hispremises drugs for drug traffickers is not in possession of the drugs in his warehouse, since he has no right to the benefit of the drugsthemselves. (Chambers and The Queen, supra at p. 446) [29] In the present case there is no direct evidence that Mr. Do knew of the presence of the drugs found in suite 310. Thesurveillance evidence supports the conclusion that both Mr. Do and Mr. Herman were in the suite when Cst.

Coutu made the call to thedial-a-dope line to set up the undercover buy. The number dialled to set up that transaction with Mr. Herman was the same number laterdialled by Cst. Coutu and answered by Cst. McKinnell on a phone found in the suite during the search. It is reasonable to conclude thatthe call setting up the buy was made to a cell phone which was inside unit 310 at the time. No one else went into or left the suite untilMr. Herman left to meet Cst. Coutu at 6:50 p.m. No one came to or left the suite before Mr. Herman returned at 7:04, having completedthe transaction. Mr. Do left moments later.

No one else came to the unit until the warrant was executed at 8:46 p.m. Mr. Herman wasfound sitting in a chair with a computer on his lap and the drugs and their residue were scattered about the kitchen counter, on a scale andin a bowl and strainer. Mr. Do was present when the transaction was set up by phone in the suite, present when Mr. Herman leftconcealing the two rocks he sold to Coutu and present when Herman returned having completed the transaction.

No other transactionoccurred thereafter to explain the scattering of drug evidence about the kitchen. [30] This scene and the absence of any evidence or suggestion of other drug trafficking activities in that timeframe makes itreasonable to infer that the cocaine, heroin and crack cocaine and other indicia of trafficking in drugs in plain view in the kitchen whenthe warrant was executed were in plain view when Mr. Do left the suite. Further, Mr. Do is the tenant of that unit.

His property,including his driver's licence, a passport, as well as investor-related material addressed to him at that residence were present in variouslocations in the unit, including a closet in the bedroom. Although Mr. Herman had access to the unit and was involved in drugtrafficking activity from there and was present when the search warrant was executed, there is no evidence that he was living there. Theonly item of personal property connected to Mr. Herman is his wallet and contents on the counter. It is reasonable to infer on the

evidence, as I earlier noted, that the suite was being lived in and the sole occupant was Mr. Do. [31] From this circumstantial evidence I conclude Mr. Do had knowledge of the presence of the cocaine, heroin and crack cocainelocated in the kitchen. [32] Quantities of marihuana were found in a grinder on a bedside table and in a tin in a bedroom cupboard. Nearby to these weredocuments addressed to Mr. Do and, in the case of the tin of marihuana, in a cupboard a large sum of cash and the residential tenancyagreement. These circumstances, together with my earlier conclusion that Mr.

Do was the sole occupant of the unit, leads to theconclusion that he had knowledge of the presence of the marihuana. [33] I am left to consider Mr. Do's knowledge of the two containers of Oxycodone found in a jacket in the living room. There is verylittle evidence provided about that jacket. It is not specifically attributed on the evidence to either Mr. Do or Mr. Herman. It is notvisible clearly in any of the photographs filed at trial and is not described in detail. There is no evidence of its size or who it might fit.

Itcannot be linked to descriptions of clothing worn by either Do or Herman. [34] The Crown has referred to R. v. Sampson 2009 NSSC 133 in the Nova Scotia Supreme Court, in which a judge inferredknowledge and ultimately concluded that possession of a quantity of cocaine found in the lining of a jacket was proven. The accused wasthe tenant of a suite where his girlfriend also lived. The jacket was found hanging in a closet in his bedroom. Cocaine was clearlyintended to be secreted in the lining.

Other cocaine in bulk was found in the apartment, together with cocaine residue, and packagingmaterials. [35] In the present case no other evidence of the presence of Oxycodone or of trafficking activity in that substance involving the unitor Mr. Do is present. Although in the suite the jacket was in a common area and the substance itself was not readily apparent or visible. In all these circumstances, despite his sole occupation of the unit, I am not prepared to find the Crown has proven Mr.

Do's knowledge ofthe Oxycodone. [36] The evidence establishing consent to the presence of these substances and control in Mr. Do is strong. I have referred to the facthe was the sole tenant of the suite and my conclusion that he lived there. That is a reasonable inference based on his dealings with thelandlord, the presence of some food items and bedding and furniture, television and clothing, as well as bathroom items. He receivedmail there, not just telephone and cable bills, but also items of a more personal nature, such as investment and Mutual Fund materials. Mr.

Do's personal documents of value including his driver's licence, passport, Canadian citizenship card, together with a large quantity ofcash were packaged together and located in a bedroom closet. He was not permitted to sublet or to allow anyone else to live there. Henever sought permission to do so. There is no evidence Mr. Herman shared the suite. Large quantities of cash were also present in looseform. Although not considered for the truth of the contents, I note a recent bill from Rogers Communications referred to the sametelephone number as was used to access the dial-a-dope line and was addressed to Mr.

Do at that address. All of this evidence isuncontroverted. [37] I note the following passage from the decision of Mr. Justice Hill of the Ontario Superior Court of Justice in a case called R.and Emes, upheld on appeal, in which he said the following at paragraph 8: Personal papers are, as a general rule, maintained in a location to which a person has access and control.

When documents such asincome tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fairinference that the person identified in the documents is an occupant with significant measure of control. This is a matter of logic andcommon sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, orsimply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here. (R. v.

Emes (ON CA), 2001 OJ 2469 at para. 8) [38] The only reasonable conclusion on the evidence before me is that Mr. Do had the requisite knowledge, consent and control tobe found in constructive and joint possession of heroin, cocaine and marihuana. Any other conclusion would require speculation. Thedefence has admitted possession was for the purpose of trafficking. [39] Please stand, Mr. Do. I find you guilty on Counts 1, 2, 3 and 5. For the reasons earlier stated, you will be acquitted on Count 4respecting Oxycodone. That concludes the decision. (REASONS FOR JUDGMENT CONCLUDED)