



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Lin, 2022 ONCA 289

DATE: 20220411

DOCKET: C67451 & C67452

Gillese, Lauwers and Brown JJ.A.

DOCKET:
    C67451

BETWEEN

Her Majesty the Queen

Respondent

and

Ting Lin

Appellant

DOCKET: C67452

AND BETWEEN

Her Majesty the Queen

Respondent

and

Shuhao Shi

Appellant

Ricardo Golec, for the appellants

Howard Piafsky, for the respondent

Heard: March 30, 2022 by video conference

On appeal from the convictions entered on January 28,
    2019 and the sentence imposed on September 26, 2019 by Justice John R. McCarthy
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

I.        OVERVIEW

[1]

Following a trial by judge and jury, the appellants, Ting Lin and Shuhao
    Shi, were convicted of: (i) Count 1 - unlawful possession of a Class A
    precursor, gamma butyrolactone (GBL), for the purpose of producing a
    controlled substance, gamma hydroxybutyrate (GHB), contrary to s. 6.1 of the
Precursor
    Control Regulations
, SOR/2002-359, and s. 46 of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19, as amended (
CDSA
); and
    (ii) Counts 2, 3, and 4 - unlawfully possessing ketamine for the purpose of
    trafficking contrary to s. 5(2) of the
CDSA
.

[2]

They were each sentenced to terms of imprisonment of six years,
    calculated as follows: Count 2  6 years; Count 1  2.5 years concurrent; Count
    3  6 years concurrent; and Count 4  6 months concurrent.

[3]

The appellants appeal their convictions and seek leave to appeal their
    sentences.

II.       BACKGROUND

[4]

The material facts were not in dispute. Indeed, in their closing
    submissions defence counsel told the jury to believe the testimony of all the
    police officers: Everything youve heard from them is true and is accurate.

[5]

Lin rented a locker in a public storage facility in Toronto. Lin and Shi
    attended the locker on a number of occasions, several of which were captured by
    the premises video surveillance cameras. The police entered and searched the
    locker five times pursuant to a general warrant. The searches disclosed that
    the appellants were in actual or constructive possession of GBL, a controlled
    precursor, and ketamine, a controlled substance. The appellants were also
    subject to police surveillance on three separate occasions.

[6]

According to the expert evidence led at trial, ketamine is sold for both
    medical and illegal use. GBL is a precursor, or chemical compound, that is used
    to make GHB. While GHB has several legitimate uses, including the treatment of
    sleep disorders, it is also popular as an intoxicant and party drug, sometimes
    used to facilitate sexual assaults.

III.      THE STATUTORY REGIME.

[7]

In respect of a Class A precursor such as GBL, s. 6.1 of the
Precursor
    Control Regulation
provides that no person may possess a Class A
    precursor for the purpose of producing a controlled substance unless the person
    is the holder of a licence issued under specified regulations or a ministerial
    exemption issued under s. 56 of the
CDSA
. Section 46 of the
CDSA
makes it an offence to contravene a provision of a regulation made under the
CDSA
.

[8]

As to ketamine, s. 5(2) of the
CDSA
makes it an offence to
    possess for the purpose of trafficking a substance such as ketamine that is included
    in Schedule 1. However, there are permitted uses of ketamine, as it is included
    in the schedule to the
Narcotic Control Regulations
, C.R.C., c. 1041,
    made under the
CDSA
. A licenced dealer may possess ketamine, as well
    as produce, assemble, sell, provide, transport, send, deliver, import or
    export ketamine:
Narcotic Control Regulations
, ss. 3(1)(a)(i), 3(2)
    and 8(1).

IV.      ISSUES ON APPEAL.

[9]

At the hearing of the appeal, the appellants submitted that the trial
    judge made two reversible errors. First, he erred by failing to put to the jury
    the defence that the appellants honestly but mistakenly believed an
    authorization existed that permitted them to engage in their activities with the
    two substances, ketamine and GBL. Second, and relatedly, the trial judge failed
    to include a proper instruction in his jury charge on the meaning of mistake of
    fact and to connect the principles of mistake of fact to the evidence.

V.       THE
    PRE-CHARGE CONFERENCE, CLOSING SUBMISSIONS, AND CHARGE

[10]

Assessing the appellants primary submission that the trial judge failed
    to put the defence of mistake of fact to the jury first requires a brief review
    of how the issue was dealt with at trial.

[11]

In the first portion of the pre-charge conference, before counsel went
    to the jury with their closings, defence counsel informed the trial judge that there
    are no positive defences but certainly theres a defence position. A
    discussion about how the trial judge would charge the jury on the specific elements
    of the offences and the defence position on those offences did not take place
    until after closing submissions.

[12]

In his closing to the jury, counsel for Lin acknowledged that the jury
    probably recognized that the accused were dealing suspiciously. He told the
    jury that there was a single issue for their consideration: did the accused
    know that the chemicals they were moving around were unlawful? Counsel
    submitted that the Crown had not proven beyond a reasonable doubt that the
    accused knew they were dealing with unlawful drugs; and it was not for the
    accused to address whether the entities from whom they acquired the two
    substances were legitimately licensed to deal with them, instead that was
    something about which the Crown had to give evidence. Defence counsel also contended
    that the open way in which the accused carried on their activities were
    inconsistent with them having guilty minds.

[13]

In his closing to the jury, counsel for Shi took a similar approach. The
    issue, he submitted, was that the Crown had to prove that the accused dealt
    with the two substances unlawfully: The issue for you here is not only whether
    these substances are legal or illegal, it is whether the accused had knowledge
    of that status. Thats vital. Since under the regulatory regime governing the
    two substances there are circumstances in which a person can lawfully possess
    them, the Crown had to prove that the accused unlawfully possessed the two
    substances. Counsel contended that the accused certainly did not behave as if
    they knew they were dealing with illicit substances.

[14]

Counsel for Shi framed for the jury the key issue concerning the two accused
    in the following terms:

Given that ketamine is available in both legal and illicit
    forms you have to ask yourselves, given the circumstances of this case, which
    is all that matters to us, which was the ketamine in this case in the accuseds
    mind? Did the accused know they had illicit rather than illegal, or sorry, did
    they have illicit or legal ketamine in their possession? Now, as to the GBL, there
    are a number of issues here. Was the GBL legitimately obtained? That is a
    central issue for you to consider. Did either Mr. Shi or Mr. Lin have an import
    licence? Were told with an import licence one can legally import that
    substance. We heard no evidence on that point whatsoever.

This is a very significant issue in this trial with respect to
    Count 1 on the indictment before you. That requires the, Count 1 on the
    indictment requires at its starting point the unlawful possession of GBL.
Its the Crowns duty, the Crowns responsibility to prove that
    to you. In my submission, they have not done so.
You have not heard any
    evidence on that point. GBL can be lawfully possessed with a licence. [Emphasis
    added]

[15]

Following counsels closings, the pre-charge conference continued.
    Counsel for Lin argued that the charge needed to address the unlawful aspect
    of the possession of the substances by including a sentence or two calling the
    jurys attention to what unlawful means in the context of each of these
    substances. When the trial judge commented that he was at a loss for the
    wording counsel wanted included in the charge, defence counsel agreed to
    provide him with some wording, which they did. In the result, the trial judge
    included in the charge the language proposed by defence counsel.

[16]

The parties provided the trial judge with summaries of their positions
    for inclusion in the charge. The charges section on the joint defence position
    included the following language:

Neither Shuhao Shi nor Ting Lin knew that the unlawful drugs
    ultimately seized were unlawful. Shuhao Shi and Ting Lin were living normal
    lives in plain sight. Their actions are consistent with people who had nothing
    to hide. Their actions are inconsistent with guilty minds.



The Crown did not lead any evidence to refute the inference
    that Shuhao Shi, Ting Lin, or other mentioned persons or companies did not
    possess a legal licence to import GBL. This is a vital consideration when trying
    to arrive to near certainty that Shuhao Shi and Ting Lin were involved, and
    knew that they were involved, with unlawful drugs.

To what extent would Shuhao Shi and Ting Lin have known that
    the ketamine found was illicit ketamine as opposed to legal, lawful ketamine?

To what extent would Shuhao Shi and Ting Lin have known that
    the packages passing customs through at least two countries would have illicit
    rather than legal, lawful substances?



While some of the evidence is suspicious, most of the evidence
    is also consistent with innocent minds, and a lack of knowledge about illicit
    or unlawful drugs. The Crown has failed to prove that the only reasonable
    inference is one of guilt.

[17]

Counsel did not make any objections to the charge as delivered.

[18]

Accordingly, the record discloses that: (i) at trial appellants counsel
    expressly stated they were not advancing any positive defence; (ii) they were
    able to put to the jury their positions that since both substances could be possessed
    lawfully or unlawfully, the Crown was required to prove beyond a reasonable
    doubt that the appellants knew the chemicals they possessed and handled were
    unlawful; (iii) when they submitted to the trial judge that the charge should
    so inform the jury, the trial judge incorporated into his charge the language
    on the point drafted by defence counsel; and (iv) defence counsel were able to
    put to the jury the case that the way the appellants carried on their
    activities with the substances did not disclose guilty minds. Simply put, the
    jury was instructed in the fashion sought by the appellants. The appellants
    received the charge they desired.

VI.      DID THE
    TRIAL JUDGE ERR BY FAILING TO CHARGE THE JURY ON MISTAKE OF FACT?

[19]

As advanced on appeal, the submissions of the appellants contain both legal
    and evidentiary components. First, the appellants argue that, as a matter of
    law,
an element of the offences charged required the
    Crown to prove beyond a reasonable doubt that the appellants did not operate
    under a mistaken belief that the drugs found in the storage locker were
    acquired through a proper authorization
. Second, they further argue that
    there was evidence in the record that the appellants honestly believed they
    lawfully possessed the substances which, if believed, could lead a properly
    instructed jury acting reasonably to acquit them.

The submission based on the law

[20]

We do not accept the appellants submission that an element of the
    offences charged required the Crown to prove beyond a reasonable doubt that the
    appellants did not operate under a mistaken belief that the drugs found in the
    storage locker were acquired through a proper authorization. We agree with the
    Crown that the appellants position would require the Crown to prove, in
    effect, that an accused knew the law. That would run counter to the
    established jurisprudence, s. 19 of the
Criminal Code
, R.S.C., 1985,
    c. C-46, which provides that [i]gnorance of the law by a person who commits an
    offence is not an excuse for committing that offence, and s. 48(2) of the
CDSA
,
    which provides:

48(2). In any prosecution under this Act, the
    prosecutor is not required, except by way of rebuttal, to prove that a certificate,
    licence, permit or other qualification does not operate in favour of the
    accused, whether or not the qualification is set out in the information or
    indictment.

[21]

In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme
    Court of Canada considered the elements of the offence under s. 95(1) of the
Criminal
    Code
of possession of specified firearms without being the holder of an
    authorization (or licence) and registration certificate for the firearm. The
    Supreme Court held that the
mens rea
for the Crown to prove under s.
    95(1) does not include knowledge that possession of the firearm in the place in
    question is unauthorized. The Court explained, at paras. 55 and 56:

[K]nowledge that one possesses a loaded restricted firearm,
    together with an intention to possess the loaded firearm in that place, is
    enough.  An individual who knowingly possesses a loaded restricted firearm
    in a particular place with an intention to do so will be liable to punishment
    for the offence provided for in s. 95(1) unless he or she holds an
    authorization or a licence under which the firearm may be possessed in that
    place.  Thus, a proper authorization or licence serves to negate the
actus
    reus
of the offence, thereby allowing someone who legitimately
    possesses a restricted firearm in a given place to avoid liability.

With respect, the Court of Appeal erred
    in law by improperly reading a defence of ignorance of the law into s.
    95(1).  In the majoritys view, the Crown had to prove that Mr. MacDonald
    knew or was wilfully blind to the fact that his possession was
    unauthorized.  Such a burden would compel the Crown to prove that an
    accused knew the conditions of his or her authorization or licence.  This
    amounts to requiring the Crown to prove that the accused knew the law
.
    [Emphasis added]

[22]

More recently, in
R. v. Fan
, 2021 ONCA 674, 75 C.R. (7th) 1, a
    case involving offences under the
CDSA
, this court observed, at para.
    47, that s. 19 of the
Criminal Code
applies to the existence and
    language of offence-creating provisions, as well as authorizations required for
    regulated activities, such as the possession of firearms and drugs. Writing
    for the court, Trotter J.A. stated, at para. 50:

To require the Crown to prove that the appellants understood
    the legal framework in which they operated confuses
actus reus
and
mens
    rea
requirements. In this context, a proper authorization or licence
    negates the
actus reus
of activity that would otherwise be
    illegal. Conceived as a
mens rea
component, it would require
    the Crown to prove that an accused person knew the conditions of their licence
    or authorization. As Lamer C.J. held in
R. v. Forster
, [1992]
    1 S.C.R. 339, at p. 346: [K]nowledge that ones actions are contrary to the
    law is not a component of the
mens rea
for an offence, and
    consequently does not operate as a defence. See also
R. v. Docherty
,
    [1989] 2 S.C.R. 941, at pp. 960-61.

[23]

In the present case, the appellants submission that for each offence the
    Crown was required to prove that the appellants knew they were dealing with
    substances, the possession of which was unauthorized, is tantamount to
    requiring the Crown to prove the appellants knew the law. That position was
    clearly rejected by the Supreme Court in
MacDonald
and this court in
Fan
,
    runs counter to s. 19 of the
Criminal Code
, and is contrary to s.
    48(2) of the
CDSA
, which is a specific application of s. 19 in the
    forensic setting of a prosecution.
[1]
Accordingly, we see no basis for the appellants legal submission.

The submission based on the evidence

[24]

The appellants further argue that there was evidence in the record that
    they honestly but mistakenly believed they lawfully possessed both substances
    which, if believed, could lead a properly instructed jury acting reasonably to
    acquit them and, therefore, the trial judge erred by failing to place before
    the jury a formal defence of mistake of fact.

[25]

The threshold question for putting a defence of mistake of fact to a
    jury is whether there is evidence on the record upon which a properly
    instructed jury acting reasonably could acquit if it believed the evidence to
    be true, in the sense of whether the evidence put forth is reasonably capable
    of supporting the inferences required to acquit the accused:
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49 and 82. The principles
    constituting the air of reality test are well-known: (i) a single air of
    reality test applies to all defences; (ii) a trial judge must put to the jury
    all defences that arise on the facts, whether or not they have been
    specifically raised by an accused; (iii) a trial judge has a positive duty to
    keep from the jury defences lacking an evidential foundation; (iv) the test
    imposes a burden on the accused that is merely evidential, rather than
    persuasive; it is the burden of putting an issue in play; (v) that said, the
    evidential foundation can emanate from any source on the record; there is no
    requirement that the evidence be adduced by the accused; (vi) in applying the
    test, a trial judge considers the totality of the evidence and assumes the
    evidence relied upon by the accused to be true; (vii) the trial judge does not
    make determinations about the credibility of witnesses, weigh the evidence,
    make findings of fact, or draw determinate factual inferences but engages in a
    limited weighing to ascertain the field of factual inferences that could
    reasonably be drawn from the evidence; (viii) the air of reality test is not
    intended to assess whether the defence is likely, unlikely, somewhat likely, or
    very likely to succeed at the end of the day; the question for the trial
    judge is whether the evidence discloses a real issue to be decided by the jury,
    and not how the jury should ultimately decide the issue; and (ix) where
    evidence does not permit a reasonable inference raising a reasonable doubt on
    the basis of the defence, the defence must be kept from the jury:
Cinous
,
    at paras. 50-57, 86, 90 and 91.

[26]

Whether or not there is an air of reality to a defence is a question of
    law, subject to appellate review. It is an error of law to put to the jury a
    defence lacking an air of reality, just as it is an error of law to keep from
    the jury a defence that has an air of reality:
Cinous
, at para. 55.

[27]

Appellants counsel acknowledged that there was no evidence in the
    record about the existence of an authorization or licence for the appellants
    activities nor any direct evidence that the appellants believed their activities
    were lawful  indeed, the appellants did not testify at trial. However, the
    appellants submit that evidence about how they handled both substances provided
    a basis upon which to put a formal defence of honest but mistaken belief to the
    jury: the appellants did not attempt to hide their activities; Lin rented the
    storage locker in his own name; they did not attempt to shield themselves from
    the surveillance cameras at the storage facility; they visited the storage
    facility during the day and used the access code given to Lin; they did not
    drive in a manner that attempted any counter-surveillance moves; they moved
    items in and out of their cars in plain sight of others; and on one occasion
    they complained to the police about the efforts by someone  it turned out to
    be a police officer  to follow them. According to the appellants, the evidence
    about what they did and what they did not do provided an air of reality to a
    defence of mistaken belief that their activities were authorized under the
    regulatory regime governing the two substances.

[28]

We are not persuaded by this submission. Quite apart from the
    speculative nature of many of the inferences advanced by the appellants, their
    submission faces a very high hurdle. The conduct which they now argue should
    have led the trial judge to put before the jury a formal defence of mistake of
    fact  notwithstanding trial counsels disavowal of asserting any positive
    defence  is exactly the same conduct defence trial counsel reviewed at length
    with the jury in their closing submissions in their bid to persuade the jury to
    acquit the appellants on the basis that their conduct did not disclose guilty
    minds. However, the jury obviously was not persuaded by those submissions and
    convicted the appellants.

[29]

Having put before the jury, at some length, their positions that what
    they did and what they did not do failed to disclose guilty minds, and having secured
    the charge they sought, it is not now open to the appellants to challenge, in
    effect, the jurys rejection of their submissions about their state of mind made
    at the close of the trial in the absence of demonstrating that the jurys
    verdict was unreasonable. Yet, the appellants are not advancing unreasonable
    verdict as a ground of appeal.

[30]

Accordingly, in the circumstances of this case we see no merit in the
    appellants contention that the trial judge erred by failing to put formally to
    the jury a defence of honest but mistaken belief. We accept the Crowns
    submission, at para. 36 of its factum, that [d]espite the absence of any
    evidence suggesting an honest but mistaken belief, the trial judge fully and
    fairly put the defence position to the jury.

[31]

At the hearing, appellants counsel acknowledged that should we conclude
    the trial judge did not err in failing to instruct formally on a defence of
    mistaken belief, the appellants second ground of appeal regarding the content
    of the charge on such a defence would fall away. We therefore need not deal
    with that ground of appeal.

[32]

For these reasons, the appeals from conviction are dismissed.

VII.     SENTENCE APPEALS

[33]

The appellants seek leave to appeal from their sentences.

[34]

Below, the defence sought global sentences of four to five years imprisonment.
    The Crown asked for eight and one-half year sentences. The sentencing judge
    imposed sentences of six years imprisonment.

[35]

The appellants contend their sentences were harsh and excessive, the
    result of the trial judge placing too much emphasis on the use of GBH to
    facilitate sexual assaults and insufficient weight on the relatively young
    age of the appellants. (At the time of sentencing, Lin was 37 years old and
    Shi was 36.) The appellants also contend that the highest sentence imposed for
    one of the ketamine offences  6 years concurrent on Count 3  was excessive
    and harsh since ketamine is not in the same category as more dangerous hard
    drugs such as cocaine and heroin.

[36]

We see no basis for appellate interference with the sentences. The
    appellants have not persuaded us that the sentencing judge erred in principle,
    failed to consider a relevant factor, or imposed a sentence that was
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 44 and 52. On the latter point, this court stated in
R. v. Lin
,
    2020 ONCA 768, 97 C.C.C. (3d) 471, at para. 27, that a sentence of between five
    and eight years would normally be imposed for possession of ketamine for the
    purpose of trafficking. In those circumstances, the trial judges balancing of
    the various factors relevant to sentencing is entitled to deference.

VIII.    DISPOSITION

[37]

The appeals from conviction are dismissed. Leave to appeal the sentences
    is granted and the appeals from sentence are dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

David Brown J.A.





[1]

CDSA
s. 48(2) contains language similar to that found in s. 7(2) of the
former
Narcotic Control Act
, which provided: 
In any prosecution under this Act the burden of proving
    that an exception, exemption, excuse or qualification prescribed by law
    operates in favour of the accused is on the accused, and the prosecutor is not
    required, except by way of rebuttal, to prove that the exception, exemption,
    excuse or qualification does not operate in favour of the accused, whether or
    not it is set out in the information or indictment. In
Perka v. The Queen.
, [1984] 2 S.C.R.
    232, the majority of the Supreme Court commented, at p. 258, on the effect of
    s. 7(2):
One who wishes to plead the
    possession of a licence or other lawful authority in response to a charge of
    importation bears, under s. 7(2), the burden of persuading the trier of
    fact that such licence exists.


