R v Luu, 2015 SKCA 128

Court of Appeal for Saskatchewan Docket: CACR2534 Citation: R v Luu , 2015 SKCA 128 Date: 2015-10-19 Between: Jamie Luu Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, Saskatoon Heard: 19 October 2015 Counsel: Balfour Der, Q.C. for the Appellant Wade McBride for the Respondent Jackson J.A. [ 1 ] When this appeal was heard, we dismissed it with brief oral reasons, announcing the result with the promise of written reasons at a later date. These are the promised written reasons. [ 2 ] By way of background, three individuals, Mr. Luu, Mr. Darryl Ycson and Ms. Monica Ly travelled to Saskatoon, arriving on April 11, 2013. Mr. Ycson and Ms. Ly travelled together and Mr. Luu arrived alone.

Mr. Luu rented a room at the Best Western Royal Hotel in Saskatoon, securing it with his credit card and all three of them stayed there. After receiving a tip from confidential informants that a group of Asian males, who previously had sold drugs in Saskatoon had returned to do so again, the police conducted surveillance of the room and parts of the city over the next three days. [ 3 ] For ease of reference, I will take Mr. Luu’s counsel’s summation of the evidence at trial: Over these three days the police conducted surveillance on the hotel, the room and parts of the city. This surveillance revealed Ms.

Ly and Mr. Ycson leaving the hotel and attending for brief periods of time different parts of the city. Sometimes they entered houses and sometimes other vehicles. They were never seen with drugs and they were never seen physically handing anything to anybody. However, their actions were consistent with delivery of drugs according to a police drug expert. Other than a trip to McDonalds for food, Mr. Luu was only ever seen once at somewhere other than standing outside the hotel smoking. On April 11 at 6:34 pm Mr. Luu was seen standing on the corner of 17 th street and Avenue W talking on a cell phone.

While on the phone he “motioned” (as if telling it to move) to a car which was parked on 17 th . That car moved and parked on Avenue W. Mr. Ycson came to the vehicle from somewhere unknown and the car drove away. Less than a minute later the car returned, Mr. Ycson alighted, spoke with Mr. Luu and then left in a different vehicle. No evidence was tendered as to what happened with Mr. Luu after Mr. Ycson left. Surveillance was conducted on the room that Mr. Luu rented. Ms. Ly was seen coming and going from it. Mr.

Luu was never identified as being in the room although that can be assumed because when the room was searched, his wallet, identification and an inhaler prescribed to him were found in the room. Mr. Luu and Mr. Ycson were both arrested at the front of the hotel while both were there smoking cigarettes. At the same time Ms. Ly was arrested in the hotel room. A search of the room turned up the following items of significance:

(1) Mr. Luu’s identification and wallet,

(2) Via Rail train tickets for Ms. Ly and Mr. Ycson showing travel from B.C. to Saskatoon on April 11, 2013, (3) a total of 260.6 grams of crack cocaine and 13.4 grams of powdered cocaine in numerous small parcels found hidden in the lining of a suitcase with Ms. Ly’s name on it, (4) a black duffle bag which contained Mr. Luu’s inhaler and $7,920.00 cash in three bundles of $2,000.00, $5,000.00 and $920.00, (5) a Greyhound bus ticket for Mr.

Luu’s travel from Calgary to Saskatoon and (6) two boxes for XTE cell phones and a receipt for the same showing they were sold to “John Smith” on April 11, 2013 at 2:19 pm by a store in Saskatoon and (7) one XTE cell phone and one Blackberry cell phone both of which were on the bed and one iPhone from a table. When arrested, Mr. Ycson had 6.9 grams of crack cocaine and 0.3 grams of powdered cocaine hidden in his buttocks area. He also had $803.15 cash. Mr. Luu had nothing of significance seized except a XTE cell phone.

The police officers forgot to bring a camera to the search of the hotel room so there were no pictures available of what was where. At the

trial the surveillance notes had somehow gone missing and thus the officers were unable on many occasions to give details of thesurveillance. (Appellant’s Factum, p. 2–3) [4] Stemming from the police officers’ surveillance of them, Mr. Luu and Ms. Ly were jointly charged with having committedthe following offences: (

a) Count 1: unlawfully possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs andSubstances Act, SC 1996, c 19; (

b) Count 2: possessing Canadian currency over $5000 knowing it was obtained as a result of an indictable offence, contrary toss. 354(1) and 355(

a) of the Criminal Code, RSC 1985, c C-46; and (

c) Count 3: conspiring with persons unknown to commit trafficking of cocaine, contrary to s. 5(1) of the Controlled Drugs andSubstances Act, and possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the same Act, thereby committing an offencecontrary to s. 465(1)(

c) of the Criminal Code. (Extracted from Information #33303628) Mr. Ycson was charged separately. [5] The case for the Crown against Mr. Luu and Ms. Ly included the testimony of the police officers as to what they observedand what they seized, which is listed above and a police expert who testified that Mr. Luu’s and Ms. Ly’s behaviour was consistent withdrug delivery. [6] The parties also consented to the filing of an Agreed Statement of Facts as to the following matters: (

a) Ms. Ly was arrested in room 202 of the Best Western Royal Hotel on April 13, 2013; (

b) Mr. Luu was arrested outside the Best Western Royal Hotel on April 13, 2013; (

c) Mr. Ycson was a “tall Asian male with a ‘Mohawk’-style haircut and was observed during surveillance on April 11, 2013and in the early hours of April 13, 2013” (p. 2) and that he was arrested outside the Best Western Royal Hotel on April 13, 2013; (

d) All cocaine seized in the investigation was possessed for the purpose of trafficking within the meaning of s. 5(2) of theControlled Drugs and Substances Act. [7] Part way through the Crown’s case, Ms. Ly absented herself from the trial. After issuing a bench warrant for her arrest andadjourning the trial for several hours, the trial judge found Ms. Ly had absconded. He made an order under s. 475(1) of the CriminalCode,[1] declaring that she had waived her right to be present at her trial and then proceeded to conduct the trial in her absence.

Hercounsel was permitted to withdraw. [8] Due to the loss of trial time arising from Ms. Ly’s absenting herself from the proceedings, counsel and the Court agreed tosit on into the evening in order to complete the trial. Counsel finished their oral submissions at 9 p.m., the trial judge adjourned forapproximately 15 minutes and returned to render oral reasons.

Given the lateness of the hour, the trial judge indicated he would not referextensively to the legal principles in play, saying he had the opportunity to consider the law of conspiracy and the principles from R vCarter, (SCC), [1982] 1 SCR 938 [Carter] in a recent decision of his own (R v Roth, 2009 SKPC 129, 406 Sask R 1),which he had reviewed during the course of the trial. [9] In relation to Ms. Ly, the trial judge applied s. 475(2) of the Criminal Code and drew inferences adverse to her from the factof her abscondment. He convicted her of all three counts. [10] In relation to Mr.

Luu, the essential issues were whether there was a conspiracy and whether Mr. Luu was part of it. The trialjudge followed the Carter analysis in relation to all three counts and convicted him as well as Ms. Ly. The trial judge analysed theevidence in this way: I’m going to step back, then, from the specific -- specifically dealing with Ms. Ly, to deal with the Carter issue -- issues of conspiracy, etcetera, and the co-conspirator role, particularly. The first step of the Carter analysis is whether or not there’s a conspiracy or a commondesign proven beyond a reasonable doubt.

I’ve concluded the answer to that question is yes. The people that I find, at least at the outset,are Ms. Ly and Mr. Ycson. I note that Ms. Ly was travelling with Mr. Ycson. He is connected with the room, or the hotel. He isconnected in other ways, in any event. The link between the drugs found on his person, and the money found on his person, and thedrugs in the room and the evidence of Sergeant Lenius, with respect to money, leads me to the conclusion that he is a member of theconspiracy with Ms. Ly. And I, as I say, conclude that the existence of the conspiracy has been proven beyond a reasonable doubt.

Step 2 of the Carter analysis, then, is whether or not on a balance of probabilities other people have been shown to be members of theconspiracy, or common design. Again, with respect to Ms. Ly, clearly she is, Mr. Ycson. The question is whether or not, on a balance of probabilities, I conclude thatMr. Luu is a member of that conspiracy or common design. The facts I find that are relevant to this are that he rented the room in whichthe cocaine was found, in which the funds were found. His wallet and driver’s licence were found in the room. He arrived the same dayas the other two people did.

His inhaler was present in the bag of money, which has been packaged in such a way that Sergeant Leniusconcludes that it is consistent with drug money. I have concluded that he was present in the hotel room. That hotel room, again, contained a significant amount of cash, packaged consistent with drug trafficking. And, obviously, also in the

room, albeit hidden, was a very significant amount of cocaine. He was, I conclude, present at the Avenue W and Applebee [ sic ] conclusion -- pardon me, location, with Mr. Ycson, at a time when an apparent drug operation was in effect. There is some small amount of evidence which links Mr. Luu to Mr. Ycson, and Mr. Ycson to a drug transaction. It is slight, and I don’t give it any more weight than that. Nonetheless, there is some amount of evidence there.

There’s also evidence, and I conclude as a fact that he was present at the Avenue J location, when there was a significant amount of drug trafficking going on as well. Bearing all of those facts in mind, I’ve concluded, on a balance of probabilities, that Mr. Luu can be concluded to be a member of the conspiracy or common design. That is the second step of the Carter analysis. The third and final step of the Carter analysis, then, is on the basis of all of the evidence, whether each of these people -- and specifically, of course, Mr. Luu and Ms. Ly -- are members of the conspiracy or common design.

With respect to Ms. Ly, again, I have no difficulty in concluding beyond a reasonable doubt that she is and, accordingly, I find her guilty on count 3. With respect to Mr. Luu, although the evidence is not as convincing as it is with respect to Ms. Ly, nonetheless, following the Carter analysis, I am convinced beyond a reasonable doubt of his guilt. And, accordingly, I find him guilty on count 3; that is the conspiracy charge as well. The questions, then, arise whether Ms. Lee [ sic ] -- Ly, pardon me, is in possession of the funds. Similarly, with respect to Mr.

Luu, with respect to both the cocaine and the funds in the room, on the basis of the same analysis I conclude the answer is yes in both cases. Accordingly, I find both Mr. Luu and Ms. Ly guilty on all three counts. (T329–T330) [ 11 ] Mr. Luu appeals. He raises three grounds of appeal against his conviction: (

a) the trial judge failed to provide adequate reasons for the convictions; (

b) the trial judge failed to address the essential elements of the offenses; and (

c) the verdicts are unreasonable or cannot be supported by the evidence. A. Are the reasons sufficient for their purpose? [ 12 ] Appellate counsel, who was not trial counsel, submits that the trial judge’s reasons are not sufficient for appellate review. In particular, he states that the trial judge was required to set out the law in relation to each offence, including an analysis that particularizes the actus rea and the mens rea of each offence.

In our view, however, this argument overstates the law regarding reasons and overlooks how this trial played out. [ 13 ] As Crown counsel demonstrates, the Supreme Court of Canada has been very clear regarding a judge’s obligations with respect to the sufficiency of reasons and an appellate court’s role with respect to reviewing the adequacy of the reasons given for a conviction or acquittal. While the delivery of reasoned decisions is inherent in the judge’s role, merely asserting that a trial judge’s reasons are inadequate is not a stand-alone ground of appeal.

In order to constitute an error of law, the deficiencies in the reasons must prevent meaningful appellate review of the decision: see R v Sheppard , 2002 SCC 26 at para 55 , [2002] 1 SCR 869 [ Sheppard ] (at point 8). Where it is plain from the record why an accused has been convicted or acquitted, and the inadequacy or even absence of reasons provides no significant impediment to exercising the right of appeal, an appellate court will not intervene on that account ( Sheppard , para. 46 ).

Even where a trial judge’s choice of language is not ideal, appellate courts must not “seize on an ambiguous or less than exemplary choice of words as indicative of legal error absent an examination of the judgment as a whole” ( R v Couture , 2007 SCC 28 at para 130 , [2007] 2 SCR 517). [ 14 ] In this case, an examination of the submissions at trial indicates what Crown counsel and trial counsel perceived the issues to be. Neither Crown counsel nor trial counsel spent much time on the law. This case was all about what factual inferences should be drawn from the evidence. Indeed, Mr.

Luu’s counsel at trial admitted as much. In his oral submissions to the trial judge, he described his main submission in this way: And my submission, my main submission is that the Court’s analysis of Carter will depend on the factual findings that the Court makes and the weight, if any, that the Court gives to each of the witnesses that -- that were before the Court . And I suggest a lot of what the decision before the Court will be about will be about the bag and the inhaler and the timing of the travel arrangements between Ms. Ly, Ms. [sic] Ycson and Mr. Luu.

And whether or not those, together with any observations made at the Avenue J and Appleby locations are sufficient to meet the test within Carter . And my general submission is that they’re not. (Emphasis added, Trial Transcript, p. T313) [ 15 ] Trial counsel then summarized what he considered the lack of police surveillance evidence, the loss of some of the officers’ notes and the inconsistencies in the testimony of some of the officers: Well, what you’re left with then is comparing the testimony of all of the other witnesses and having to decide what actually went on here.

And so you have, for instance, Constable Weselowski in one part saying with some certainty, listen, we had a briefing meeting at either 11:18 or 2:00 in the morning. And then you have Constable Beerling saying, oh, I’m certain it was twelve o’clock. And it -- it just, I think in my submission, it sheds some light on the credibility or lack of credibility, whether it being, you know, an honest mistake and just poor memory because of the affliction of time, and -- and I accept that it happened a long time ago.

We heard from these witnesses that they’ve been part of numerous investigations, whether it be on the surveillance team with Constable Beerling or the many drug investigations Constable Weselowski testified to or -- or Constable Graves. So I suggest that it’s easy to -- and -- and they agreed that you -- the reason you have notes is that -- so you can keep some of these things straight. (p. T315–T316)

Trial counsel continued in a similar vein with a series of factual matters, concluding with an argument that the trial judge should have a reasonable doubt: What I’m trying to convey and I maybe am beating a dead horse, is I’m trying to say that there is just some general overall problems here with the fact that they don’t have the main surveillance notes. And there seems to be an attempt to try and fill in a lot of blanks here.

And I think it’s -- it’s -- I don’t think they’ve succeeded. … … in terms of Carter , I -- I’m suggesting that the Crown has not proven beyond a reasonable doubt the existence of the conspiracy in the -- in the first part of the test. If you were to, I think, that you would -- you would have to use, I suppose, well, the three pieces of evidence I said at the top. The -- the tickets and the observations at Appleby and Avenue J. … Certainly by the time you get to the third, there’s -- we -- we suggest not.

We -- we just think that there is a -- there is reasonable doubt in this case, Your Honour, is our submission. (p. T321–T323) [ 16 ] In the course of trial counsel’s submissions, there are significant exchanges between the Court and counsel, with trial counsel laying out all of the reasons why the trial judge should have a reasonable doubt. This is an example of one of the exchanges: THE COURT: The evidence of his involvement in that or even Mr. Ycson, for that matter, may be a little dubious. He -- there is some evidence that he’s present at the Avenue J location, where there is again some -- MR.

LAVIER [defence counsel]: Yes. THE COURT: -- drug trafficking going on. And of course, he and the other two arrive together. MR. LAVIER: Well, we don’t know that for sure. THE COURT: Oh, I’m sorry, arrive the same day. MR. LAVIER: Yeah, okay. THE COURT: You’re right. Not arrive together, arrive the same day. I suspect that Ms. Pace [Crown counsel] would urge me to conclude that that’s fairly damning, as far as the Carter analysis is concerned. Whether it’s with respect specifically to the conspiracy or with respect to the -- the common enterprise, as it were, for everything else. MR. LAVIER: That’s not my view.

I -- I don’t think the first part of Carter is met beyond a reasonable doubt based on the evidence, that’s my honest view. But like I say, I think if the Court finds and puts weight into -- depending on what you put weight into, but yeah, that -- that’s not -- that’s not my view, Your Honour. (p.

T324–T325) [ 17 ] In his reasons for decision, the trial judge opens by specifically addressing trial counsel’s concerns about how the police conducted the surveillance operation and about the seeming evasiveness of one of the police witnesses: With respect to the evidence specifically, there were a few things that I note and have to take into account in assessing the evidence. The lack of notes from surveillance, which was subject of some comment, is obviously a problem .

There is no evidence from which I conclude -- can conclude that this was a deliberate matter, or that it was done in order to try and evade or disrupt the defence. At the same time, it’s clear from the testimony of the last two days that the lack of notes is surprising and is problematic, as far as accurate testimony is concerned, in some cases. There are a lot of blanks in the testimony. And I have to take that into account in assessing credibility and weight of the witnesses . I also have some concerns with respect to Constable Weselowski’s evidence.

Although his evidence-in-chief went just fine, in cross- examination I thought that there were some problems that arose. There were -- there were times when I thought that he was being evasive, or perhaps he was just being cute in answering Mr. Lavier, but he certainly didn’t do his credibility any good, in my eyes, when he did that. I am particularly mindful of his answers when Mr. Lavier was asking him about what Constable Graves was doing, in terms of looking at hotels, and whether that was at his direction or why he was doing it.

I thought that Constable Weselowski’s answers were evasive or glib; in any event, however they might be characterized, they did not enhance his credibility, in my eyes. Similarly, when the question was put to him about what had been done to try and find the scribe notes, I thought that his answer, at least initially, was something of a brush off. I didn’t think that he treated the question with the seriousness that it deserved. And I thought that his responses to looking at the booking information of the Saskatoon Police Service, when put to him by Mr.

Lavier, again -- well, his -- his responses and the manner of his response, whether or not that shows up on the transcript, I thought was of dubious value in enhancing his credibility, if I can put it that way. That doesn’t mean, necessarily, that I throw out all of his evidence, or the evidence of any of the other officers. I simply point these things out to indicate, both to the parties and for the record, that I am aware of issues with respect to credibility and weight. And I have considered those things in deciding what the facts are in this case.

(Emphasis added, p. T328–T329) [18] The trial judge essentially agrees that the investigation was not without its difficulties, but the trial judge nonethelessconcludes that the problems with the evidence did not determine the outcome. Since the trial judge did not reject the police evidence, hehad to weigh it—with all of its frailties—to determine whether the Crown had met the burden of proving its case beyond a reasonabledoubt. [19] The issue then becomes whether the trial judge’s reasons provide no significant impediment to exercising the right of appealfrom conviction.

To respond to this question, it is necessary to consider Mr. Luu’s grounds of appeal and whether it is possible for thisCourt to assess them. [20] Mr. Luu argues two main grounds of appeal. First, Mr. Luu argues that the trial judge should have set out the elements ofeach of the offences of conspiracy, possession of proceeds and possession of drugs for the purposes of trafficking. He submits that thetrial judge should have proceeded seriatim through the charges, stating the legal requirements for each and specifying what constitutedthe actus reas and mens rea of each.

It is quite clear the trial judge did not perform this exercise, but that fact alone does not make hisreasons vulnerable to appeal on the basis his reasons are insufficient. The issue is whether the fact he did not analyze the offences andevidence in the manner suggested by appeal counsel amounts to an error of law necessitating a new trial. Second, Mr. Luu argues that theverdict is unreasonable and that it cannot be supported by the evidence. As the following assessment of Mr. Luu’s argumentdemonstrates, the reasons permit appellate review. B.

Did the trial judge commit an error of law by not listing and addressingthe essential elements of each offense? [21] As I have indicated, the trial judge’s reasons address the Carter test almost exclusively. In R v Aden, 2015 SKCA 59, 323CCC (3d) 514 [Aden], this Court reviewed the law pertaining to Carter—especially passages found in Carter on pp. 944–947 (and alsoelements found in R v Barrow, (SCC), [1987] 2 SCR 694 at p 740 [Barrow]). The Carter test has been reaffirmed in R vMapara, 2005 SCC 23, [2005] 1 SCR 358.

The evidence—of the acts and declarations of any one of the accused jointly charged withothers—is potentially admissible against the others if the requirements of the co-conspirators’ exception to the hearsay rule are met (seeR v Satkunananthan (2001), (ON CA), 143 OAC 1 (CA) at para 95–101 and R v N.Y., 2012 ONCA 745 at paras 80and 89, 298 OAC 297). [22] In the case at bar, Mr. Luu insists there should have been an analysis of the actus reus and the mens rea as to each of theoffences apart from the Carter analysis. In particular, in relation to the conspiracy charge, Mr.

Luu submits that the Crown did not provebeyond a reasonable doubt the existence of an agreement and that he was part of such an agreement. [23] As the trial judge’s reasons indicate, he started with the third offence first: whether he was satisfied beyond a reasonabledoubt that Mr.

Luu conspired with persons unknown to commit trafficking of cocaine, contrary to s. 5(1) of the Controlled Drugs andSubstances Act, and possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the same Act. [24] In answering this question, the trial judge first asked himself whether the Crown had proven beyond a reasonable doubt thatMs. Ly had possessed the cocaine found in the suitcase in the hotel room. He concluded that the Crown had proven this offence beyond areasonable doubt on the basis of these factors: (

i) she was found in the room; (ii) her identification was found in a jacket in the room; (iii)the cocaine was in the lining of a suitcase found in the room; (iv) the suitcase bore a VIA Rail tag with her name on it; and (

v) the VIARail tag corresponded to her VIA Rail ticket. [25] Crown counsel had invited the trial judge to find Mr. Luu guilty of all offences on three different bases: (

i) by drawing theappropriate inferences from the direct and circumstantial evidence; (ii) by applying the Carter analysis; and (iii) by applying s. 21 of theCriminal Code. Trial counsel agreed with Crown counsel that “the Court should be looking at Hodge’s rule on circumstantial evidenceand looking at the whole of the evidence … this is the Carter test that we’re -- we’re looking at, essentially” (p. T313). Trial counseladdressed no arguments to the application of s. 21. [26] The judge found there was a conspiracy between Ms. Ly and Mr. Ycson—at least these two.

The evidence he relied on forthat conclusion was the following: Ms. Ly was travelling with Mr. Ycson; Mr. Ycson was connected with the room by virtue of the drugsand money found on his person, and with the drugs in the room through the evidence of the police expert. [27] The trial judge then asked himself whether, on the basis of evidence directly implicating Mr. Luu, he was a member of theconspiracy—on a balance of probabilities. Here, he found the following facts relevant: Mr.

Luu rented the room in which the cocaine andfunds were found; his wallet and driver’s licence were found in the room; he arrived the same day as the other two people did; his inhalerwas present in the bag of money.

All of this placed him at some point in the hotel room and directly associated with the two illegal actsassociated with the conspiracy. [28] The trial judge then stepped back and looked at what was in the room in terms of its significance for the charges before theCourt: the room contained a significant amount of cash, which was packaged in a manner that was consistent with drug trafficking, and avery significant amount of cocaine. [29] Finally, the trial judge looked at the fact that Mr. Luu was present at the Avenue W and Appleby locations (with Mr.

Ycson)at a time when apparent drug operations were taking place. He noted that there is some “slight” evidence linking the two at a thirdlocation: the Avenue J location. [30] Considering all of this, the trial judge concluded that Mr. Luu was a member of the conspiracy—on a balance of probabilities. [31] It is at this point that a trier of fact can look at all of the acts and declarations of the co-actors to determine the accused’s

membership in the conspiracy beyond a reasonable doubt. The trial judge did not go into any further detail, and it must be taken that helooked at all of the evidence that he had previously considered to determine Mr. Luu’s participation, on a balance of probabilities, in theconspiracy—to determine whether Mr. Luu was guilty beyond a reasonable doubt. But does this represent an error of law?

In thecircumstances of this case, we have not found that the trial judge’s approach to the evidence constitutes an error of law and, if it didrepresent an error of law, it is not one which would justify intervention by this Court. [32] First of all, as I have pointed out, the trial judge’s reasons respond to the approach suggested by Mr. Luu’s defence counsel.Second, as Crown counsel points out, it was not necessary to resort to the Carter exception to prove Mr. Luu’s participation in theconspiracy.

Participation in a conspiracy can be proven by direct and circumstantial evidence—and indeed it appears that this is preciselywhat the trial judge found in this case. While he clearly purports to follow the Carter test, he does not rely on any acts or declarations byany co-conspirator to make his ultimate finding of proof beyond a reasonable doubt. He considers “all of the evidence” (p. T330). [33] Proof of an agreement between the conspirators can be established by inference from overt acts and declarations made infurtherance of the conspiracy.

In R v J.F., 2013 SCC 12, [2013] 1 SCR 565 [J.F.], Moldaver J. reinforced earlier case law holding thatconspiracies are often proven by way of circumstantial evidence: [51] In R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), a case involving various charges,including conspiracy to extort, Doherty J.A. stated the following: The appellants’ submissions stand on firm legal footing. The actus reus of the crime of conspiracy lies in the formation of an agreement,tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective.

Co-conspirators share acommon goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal. It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof ofknowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge ofnor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. v. Lamontagne (1999), (QC CA), 142 C.C.C. (3d) 561 (Que. C.A.), at 575–76; R. v. Cotroni, supra, at pp. 17-8.

Knowledge and acts in furtherance of acriminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may beinferred. (Emphasis added; citations omitted; paras. 46–47) I agree with the emphasized comment, but would state it slightly differently and in somewhat more emphatic terms. [52] In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object soughtto be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of oneor more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can beinferred.

To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawnon the evidence. But, as I will explain, the case at hand illustrates how a constellation of such facts can make a finding of membership avirtual certainty. [53] In so concluding, I note that conspiracies are often proved by way of circumstantial evidence. Direct evidence of an agreement tendsto be a rarity.

However, it is commonplace that membership in a conspiracy may be inferred from evidence of conduct that assists theunlawful object. Justice Rinfret made this basic point in Paradis v. The King, (SCC), [1934] S.C.R. 165, some eightdecades ago: Conspiracy, like all other crimes, may be established by inference from the conduct of the parties.

No doubt the agreement between themis the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. [p. 168] [54] Furthermore, it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission ofthe unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each hasagreed should be committed: R. v. Genser (1986), (MB CA), 39 Man. R. (2d) 203 (C.A.), aff’d (SCC),[1987] 2 S.C.R. 685.

Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long asagreement to a common plan can be inferred and the requisite mental state has been established. (Footnotes omitted, underline emphasis in original, italic emphasis added) [34] In this case, the “evidence of conduct that assists the unlawful object”—to use the words of Moldaver J. in J.F.—was strong:Mr. Luu arrived on the same day as the co-conspirators; Mr.

Luu rented the hotel room that contained significant amounts of cocaine andcash proceeds; his inhaler was found with the money; he was seen outside of the hotel and he was seen with Mr. Ycson. In suchcircumstances, even if the trial judge’s reasons reveal error, we would invoke s. 686(1)(b)(iii) of the Criminal Code (see R v Van, 2009SCC 22, [2009] 1 SCR 716). [35] Having concluded that Mr.

Luu was guilty beyond a reasonable doubt of conspiring to possess cocaine for the purpose oftrafficking and possessing Canadian currency over $5000 knowing it was obtained as a result of an indictable offence, largely on thebasis of inferences drawn from who possessed the drugs and the proceeds, it was a short step for the trial judge to conclude Ms. Ly wasguilty beyond a reasonable doubt of possessing the money along with Mr. Luu and Mr. Luu was guilty of possessing the cocaine alongwith Ms. Ly. Indeed, Mr. Luu’s trial counsel admitted as much—for him, the trial was all about whether Mr.

Luu was part of aconspiracy to traffic cocaine and possess proceeds of crime. [36] As Crown counsel points out, circumstantial evidence in this case was offered as proof of a number of key elements: (

i) theexistence of the conspiracy; (ii) Mr. Luu’s membership in it; and (iii) Mr. Luu’s knowledge and control over the money and cocaine inthe hotel room.

[37] There is no error in any of this, which brings me to the third ground of appeal: that the verdicts are unreasonable orunsupported by the evidence. C. Are the verdicts unreasonable or unsupported by the evidence? [38] Mr. Luu’s arguments on this point amount to a claim that the trial judge “should” have found a reasonable doubt.

A claimthat a verdict is unreasonable or is not supported by the evidence does not permit appellate re-evaluation in that manner. [39] In a recent judge-alone case, R v R.P., 2012 SCC 22, [2012] 1 SCR 746, Deschamps J. summarized the most recentlyarticulated examples justifying appellate intervention on an appeal from conviction on the basis of an unreasonable verdict in judge-alonecases: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987]2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Sinclair, 2011 SCC 40 , [2011] 3 S.C.R. 3, at paras. 4, 16 and 19–21; R. v. Beaudry, 2007 SCC5 , [2007] 1 S.C.R. 190). [40] Mr. Luu’s conviction is not a verdict that a properly instructed jury or judge could not reasonably have rendered. The trialjudge indicated the evidence upon which he relied for each step of his analysis. Nor can it be said that the verdict is plainly contradictedby other evidence or is shown to be incompatible with evidence that has not otherwise been contradicted. In such circumstances, there isno basis to give effect to this ground of appeal. I note as well that Mr.

Luu did not testify. [41] For all of these reasons, Mr. Luu’s appeal from his convictions was dismissed from the bench on the day his appeal washeard.