R. v. Chan, 2018 BCPC 155

Citation: R. v. Chan 2018 BCPC 155 Date: 20180305 File No: 233595-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KWEI CHIU CHAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GORDON Counsel for the Crown: K. Guest Counsel for the Defendant: R.T. Gill Place of Hearing: Vancouver , B.C.

Date of Hearing: March 5, 2018 Date of Judgment: March 5, 2018 [ 1 ] THE COURT: Kwei Chiu Andy Chan comes before the Court charged with three offences -- production of methamphetamine, possession of sodium hydroxide knowing that it would be used to produce methamphetamine, and possession of hydrochloric acid, knowing that it would be used to produce methamphetamine. All of the allegations are said to have occurred in Vancouver on July 9, 2014.

[ 2 ] The issue before the Court is simply whether the Crown has proven beyond a reasonable doubt whether Mr. Chan was a party to the offences. The evidence pointing to the guilt of Mr. Chan is all circumstantial. The Crown theory is that it points to the guilt of Mr. Chan. Defence counsel's position is that guilt is not the only reasonable inference that may be drawn from the evidence. [ 3 ] The residence at 1650 East 49 th Avenue in Vancouver contains four units -- two suites in the lower level, one suite in the upper level, and a laneway house. [ 4 ] On March 11, 2012, Mr.

Chan entered into a tenancy agreement to rent the laneway house, commencing on March 15, 2012. He entered into the agreement by presenting false identification, an Ontario drivers licence in the name of Ching Wong [phonetic]. He also provided a British Columbia cellular telephone number by which to contact him at. [ 5 ] Approximately 18 months after he rented the laneway house, Mr. Chan began also renting the west basement suite. [ 6 ] At the time that the police searched both units, the rental agreement for the laneway house was located in the basement suite.

The rental agent for the properties was the brother of the owner. [ 7 ] With respect to the basement suite, at the time that he rented it, Mr. Chan advised the rental agent that while he would pay the rental, a woman would be residing in the suite. [ 8 ] The laneway house was rented for $1,000 per month, and the basement suite was as well. Mr. Chan paid cash for the rental of both units. He and the rental agent would arrange to meet by text message.

Generally they met up either in the yard or in the back lane. [ 9 ] In the early morning hours of July 9, 2014, a fire broke out in the laneway house and the Vancouver Fire Department attended. No one was present in the residence when the Fire Department attended. In the process of supressing the fire, they observed what they believed to have been an illicit drug laboratory. As a result, they notified the Vancouver Police Department. [ 10 ] The Vancouver Police Department, along with a specialized unit of the RCMP, commenced an investigation.

No one attended to the laneway residence during the course of the investigation. There was a female resident in the basement suite. [ 11 ] As a result of the investigation, search warrants were obtained for and executed at both the laneway house and at the basement suite. [ 12 ] Both liquid methamphetamine, as well as equipment that had been used in the first stage of the methamphetamine manufacturing process, were located in the basement suite.

In the laneway house, all of the product and equipment necessary to produce methamphetamine were located. [ 13 ] Health Canada experts concluded that the production process had been somewhere between the second and third stage at the time that the fire broke out. Liquid methamphetamine and crystal methamphetamine were also located in that residence. [ 14 ] During the course of the search, police located a wallet containing Mr.

Chan's identification in the pocket of a pair of jeans left in the bedroom of the laneway house. [ 15 ] Toluene is a solvent often used as a paint thinner, but also used in the process of producing methamphetamine. A used can of toluene bearing Mr. Chan's fingerprint was located in the laneway house. [ 16 ] The Health Canada experts concluded the starting materials product, side products, glassware and equipment found are consistent with the synthesis of methamphetamine via the reduction of pseudoephedrine. [ 17 ] The wallet that had been located in the bedroom of the laneway house contained Mr.

Chan's drivers licence, but the drivers licence had a different address as his residence. [ 18 ] A white Toyota Highlander often parked at 1650 East 49 th Avenue was the frequent subject of neighbourhood parking complaints. Mr. Chan's wife was the registered owner of the vehicle, and identified her address as the same address on her husband's driver’s licence. Mr. Chan was identified as the primary operator of the vehicle. [ 19 ] The search of the laneway house showed significant damage from both the fire, as well as from its suppression. The lower level of the laneway house contained a bedroom and a bathroom.

The ceiling of the bedroom had caved in. A pair of jeans was found on the bed, and it was those jeans in which Mr. Chan's wallet was located. No evidence was tendered either way as to whether other clothing was located in the bedroom. [ 20 ] A fan system had been devised in the upstairs of the laneway house that was designed to draw the air from the laboratory outside of the residence. The downstairs bathroom contained chemicals used in the process of methamphetamine production. The upstairs of the laneway house was the living area with a kitchen and living room.

All of the rooms contained a plethora of chemicals. Equipment used in the production of methamphetamine was also located. It was difficult to move around the upper level because of the sheer number of buckets and containers. [ 21 ] Because of both the fire and its suppression process, it cannot be known exactly how the lab had been set up and where each relevant item had been located before the fire broke out. [ 22 ] Charges were approved and an Information was sworn on May 30, 2016. Mr. Chan was arrested on June 1, 2016.

The trial commenced on January 18, 2018. [ 23 ] The exhibit officer, Constable Smart, employed a very unique process by which to log the exhibits. For example, he noted that each item located by Constable Wong was seized by Wong at 5:53 p.m. on July 9, 2014. This methodology included items seized on July 10, 2014.

[ 24 ] What did occur, however, is that Constable Wong identified to Constable Smart where he had located each item. Those locations are identified on the exhibit list. By way of example, buckets with an orange-coloured liquid were located on the upper floor in the main living area of the laneway house.

Containers of orange-coloured solvent and methanol rinse were located in the spare room of the basement suite. [ 25 ] While it is impossible to know exactly where an item was located -- when an item was located and exactly where it was, I am able to conclude the general location of each item at the moment before it was located and/or seized. [ 26 ] The rental agent testified that he understood that Mr. Chan was to use the laneway house for himself and would sublet the basement suite to his friend.

On a couple of occasions when the rental agent attended at the property to collect the rent, he observed a woman taking garbage out of the laneway house. [ 27 ] An RCMP officer who attended and assisted in the search believed from his observations that the laneway house was used both as a residence and as a laboratory.

He acknowledged that someone who happened inside would know that a significant lab experiment was going on but would not necessarily know what was being produced. [ 28 ] The Health Canada expert called as a witness testified that the production process from start to finish would take anywhere from six to 24 hours, depending upon the amount of methamphetamine the manufacturer wished to produce.

Apparently, the reaction can cook while the manufacturer sleeps. [ 29 ] The Crown called the rental agent, a number of the police investigators, and a scientist employed by Health Canada, expert in the manufacturer of methamphetamine, as witnesses. At the close of the case for the Crown, the defence elected not to call evidence. [ 30 ] Crown counsel pointed out that it is not contentious that Mr. Chan had an element of control over both units. She argued that all of the relevant flasks, buckets, chemicals and other items were possessed by Mr.

Chan and stored in both suites by him for the purpose of production of methamphetamine. [ 31 ] She argued that constructive possession has been proven beyond mere acquiescence. She argued that the totality of the circumstantial evidence presented points to Mr. Chan as the possessor of the methamphetamine lab and the precursor chemicals. She argued that the evidence is inconsistent with any other reasonable conclusion. [ 32 ] The Crown argued that the use of an alias in the tenancy agreement is a powerful piece of evidence, as is the payment of rental monies in cash, as no paper trail pointing to Mr.

Chan was created. Cash was paid for both units and criminal activity was located in both units. [ 33 ] She pointed out that the production of methamphetamine is a preplanned, deliberate crime, as it not only takes time to set the lab up, it then takes an additional six to 24 hours to produce the substance. [ 34 ] The chemicals and production equipment were in plain sight throughout the laneway house. Sixty containers were located in that residence, 18 of which contained methamphetamine.

It would be impossible to be in the suite without knowing that something was going on. [ 35 ] Crown counsel pointed out as well that there is no evidence to suggest that Mr. Chan sublet the laneway house to someone else, and then was blind toward what was going on inside. She pointed out that both premises were under Mr. Chan's control. [ 36 ] Equipment used in the first stage of methamphetamine production was moved from the laneway house to the basement suite. It would have been done to make way for the second and third stage equipment in the already crowded laneway house. [ 37 ] She further argued that Mr.

Chan's wallet and identification were found in the bedroom of the laneway house, and his fingerprint was found on a used can of toluene. [ 38 ] An individual does not logically leave his wallet in a place he does not frequent. Both sodium hydroxide and hydrochloric acid were located in the laneway house. There were three 3-kilogram containers of sodium hydroxide and one litre of hydrochloric acid. [ 39 ] The Crown's theory is that Mr. Chan was in the laneway house manufacturing methamphetamine and fled when the fire broke out. She argued that there is ample evidence proving that Mr.

Chan was in constructive possession of methamphetamine and the two precursors, making him a party to the three crimes charged. [ 40 ] Defence counsel argued that there are numerous problems in the case for the Crown. He pointed out that Mr. Chan is not the only person linked to the laneway house, as a woman had been seen taking out the garbage on two or three occasions. He argued that there is no evidence that Mr. Chan had knowledge that methamphetamine was being produced in the laneway house. [ 41 ] He argued as well that the best that can be concluded from the fact that Mr.

Chan's fingerprints were on an innocuous jar and on the toluene can is that he was inside the residence on at least one occasion at some point in time before the fire, but that that evidence is far from proof of exclusive use of the premises by him. [ 42 ] Paperwork in names other than Mr. Chan's was located inside the laneway house. [ 43 ] He pointed out that it is impossible to know what the scene looked like prior to the fire and that the reliability of the exhibit list has been called into question.

He argued that it is impossible to conclude with any certainty where the can of toluene was located and that therefore no evidentiary use can be made of Mr. Chan's fingerprint on the can. [ 44 ] He argued as well that a lay visitor would not necessarily know that what was going on inside the laneway house was the production of methamphetamine.

[ 45 ] He argued that Mr. Chan's use of an assumed name to rent the premises does not conclusively prove that he had knowledge of the production of methamphetamine inside the residence. Additionally, Mr. Chan's drivers licence and the vehicle registration point to a different residential address. [ 46 ] He argued that the totality of the evidence did not cry out for an explanation from Mr. Chan. It is impossible to know if the lab existed more than 24 hours before the fire and it is therefore impossible to conclude that Mr. Chan had even seen it. [ 47 ] The evidence presented at trial is circumstantial.

In assessing its weight and import, I am guided by the principles enunciated by the Supreme Court of Canada in Villaroman wherein the Court reminded that there is a concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously fill in the blanks or bridge gaps in the evidence to support the inference that the Crown invites it to draw. [ 48 ] The trier of fact must be reminded as well that a reasonable doubt is a doubt based on reason and common sense. It is not imaginary or frivolous.

It does not involve proof to an absolute certainty and it is logically connected to the evidence or absence of evidence. An inference of guilt should be the only reasonable inference. [ 49 ] The Crown is not required to negative every possible conjecture which might be consistent with the innocence of the accused. Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. An alternative inference must be reasonable, not just possible.

Acquiescence in the act of another is not an offence. [ 50 ] The issue therefore is whether the Crown has proven that Mr. Chan was either in joint or constructive possession of the items located in the units and therefore a party to the offence. Does the evidence demonstrate that Mr.

Chan fostered and facilitated the production of methamphetamine? [ 51 ] Whereas here, the items located are not in the accused's actual possession, the Crown must prove constructive possession by establishing that the accused person had a measure of control over those items, and that comes from Fisher . [ 52 ] The criminal standard of proof is not to be applied to each individual piece of evidence. The proper approach is to consider whether all of the evidence establishes the guilt of the accused and is inconsistent with any other reasonable conclusion.

And that comes from Ngo. [ 53 ] While each individual piece of evidence in a case may be reasonably explained away, that is not the test. The test is whether, on the whole of the evidence, the verdict is the only reasonable conclusion and that comes from Tahirsylaj . [ 54 ] In a case of constructive or attributive possession, the Crown must prove that the accused had the ability to exercise a measure of control over the items in issue. The Crown need not prove that the power was in fact exercised. That comes from Ling . [ 55 ] Mr. Chan rented the laneway house using false identification on the tenancy agreement.

He paid for the rental in cash each and every month between March 2012 and July 2014. Once he rented the basement suite, he paid cash for that rental as well. There was no evidence before the Court with respect to what method the tenants in the other units paid their respective rents by. [ 56 ] A fairly significant methamphetamine production operation was located in both suites rented by Mr. Chan. The equipment used in the first stage of the process, as well as methamphetamine, was located in the basement suite. The first stage equipment would have had to have been moved from the laneway residence. [ 57 ] Mr.

Chan had control over both units. The laneway house was essentially filled to the brim with product and equipment necessary for the production of methamphetamine. [ 58 ] Additionally, toluene is a solvent used in the second stage of production and Mr. Chan's fingerprint was found on a used can of toluene found in the laneway house. His wallet with his identification was located in the same unit. [ 59 ] While the production may have been in process for only six hours prior to the fire, it would have taken a significantly longer period of time to buy the equipment and precursors and set the lab up. [ 60 ] Mr.

Chan argued that an inference could be drawn that perhaps he had sublet the unit without telling the rental agent, happened to walk in, and would not have known that the chemistry experiment underway was a methamphetamine lab. [ 61 ] That is not a reasonable inference that can be drawn based upon the evidence presented at trial. It stretches beyond all common sense. Mr. Chan was the known tenant of the unit, albeit under an assumed name. His face and cellular telephone number were known to the rental agent.

Anyone in his position who happened upon such a significant operation would naturally demand to know what was going on. [ 62 ] But in any event, it is conjecture that Mr. Chan had ceded control over the laneway house. [ 63 ] There were problems with the exhibit list prepared by the exhibit officer, Constable Smart. Notwithstanding his unique methodology, I am assisted in my findings by the evidence of Constable Wong, who advised Constable Smart the location where he found each item.

While Constable Wong could not specifically recall the used can of toluene, the notation made was that it was located by Constable Wong in the living room of the laneway house. [ 64 ] The video of the scene taken by Constable Wong before the search commenced shows a number of containers and items all piled together against a wall in the living room. [ 65 ] While the methodology behind the preparation of the exhibit list is very questionable, there was no suggestion that any of the seizures had been planted.

[ 66 ] In Constable Wong's filming of the scene, the camera did not linger on the pile of containers. I am satisfied, however, because of Constable Wong's evidence respecting how he described his seizures to Constable Smart that the used can of toluene must have been in that pile of containers and that it was seized from that location by Constable Wong. [ 67 ] The totality of the evidence leads inexorably to the conclusion that Mr. Chan was in constructive possession of all of the equipment and items precursors used to produce methamphetamine.

He had both knowledge of and control over each and every item. [ 68 ] He elected to use an alias to rent the property. [ 69 ] His fingerprint was on an item used in the second stage of the production of methamphetamine, and the production at issue was somewhere between the second and third stages at the time of the implosion and consequent fire. [ 70 ] Mr. Chan was sufficiently comfortable with the laneway house to leave his wallet and identification in the bedroom. [ 71 ] The totality of the evidence leads to only one reasonable conclusion, and that is the guilt of Mr.

Chan on all three counts. [REASONS FOR JUDGMENT CONCLUDED]