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COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wu, 2017 ONCA 620

DATE: 20170726

DOCKET: C59577& C61217

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/

Appellant by way of cross-appeal

and

Shu Qiang Wu

Appellant/

Respondent by way of cross-appeal

Eva Taché-Green for the appellant/respondent by way of
    cross-appeal

Stephane Marinier, for the respondent/appellant by way
    of cross-appeal

Heard: June 21, 2017

On appeal from the conviction entered on July 22, 2014
    and the sentence imposed on October 14, 2014 by Justice Julie A. Thorburn of
    the Superior Court of Justice, sitting without a jury, with reasons reported at
    2014 ONSC 4418 and 2014 ONSC 6000.

REASONS FOR DECISION

[1]

The
    appellant appeals his convictions on three counts of possession of a controlled
    substance for the purpose of trafficking. He asserts that: (a) the verdicts
    were unreasonable; (b) the verdicts were inconsistent with his acquittal on
    counts of producing a controlled substance; and (c) the verdicts were
    inconsistent with the trial judges conclusion that he had no standing on a s. 8
    of the
Canadian Charter of Rights and Freedoms
application.

[2]

The
    Crown seeks leave to appeal the sentence of 8 years imprisonment. It submits
    that the sentence was unfit and asks this court to substitute a 12-year
    sentence. The Crown further submits that the trial judge erred in failing to
    delay Mr. Wus parole eligibility.

A.

Background

[3]

On
    October 19, 2007, police entered a two-storey house in a residential neighbourhood
    in Scarborough, Ontario.

[4]

The
    house contained a clandestine factory for the production of methamphetamine. It
    was capable of producing approximately 12,000 pills an hour. Some 150 kilograms
    of drugs, with a street value of $12 million, were found in the residence. The
    operation was described by a police expert as one of the six largest
    clandestine labs uncovered by Canadian authorities.

[5]

To
    produce this quantity of drugs required large amounts of raw materials,
    production machinery and storage facilities. These were contained in almost
    every room on the ground floor and basement of the house. A powdery dust  a
    by-product of the production and pill-making operation  was evident throughout
    the house.

[6]

A
    table in the dining room was set for a meal for two. There were two bowls of
    rice on opposite sides of the table and a plate of food in between.

[7]

The
    appellant was the only person in the house at the time police entered. Another
    individual, Wan Shun Ling, had been arrested a few minutes earlier, after he
    left the house and went to his car, located in the driveway. Mr. Ling was tried
    separately, along with three others. Three of the four were convicted of
    production and possession for the purposes of trafficking MDMA, methamphetamine
    and ketamine:
R. v. Ling
, 2012 ONSC 654, affd 2014 ONCA 808.

[8]

The
    Crown asserted that the appellant was a participant in the operation, had
    knowledge of the drugs and was jointly in control of them. He was convicted of
    possession for the purpose of trafficking and acquitted on the production
    charges.

B.

The Conviction Appeal

(1)

Unreasonable verdict

[9]

The
    evidence against the appellant was circumstantial. He acknowledges that the
    test is whether the trier of fact, acting judicially, could reasonably be
    satisfied that the accuseds guilt was the only reasonable conclusion available
    on the totality of the evidence:
R. v. Villaroman
, 2016 SCC 33, [2016]
    1 S.C.R. 1000, at paras. 55-56.

[10]

The trial judge
    properly identified the elements of the offence, noting that the Crown was
    required to establish that the appellant knew of the presence of the drugs and
    had control over them. She found that anyone in the house for any period of
    time would have known that a serious drug operation was taking place, by virtue
    of the fact that: (a) there were 150 kilograms of methamphetamine, MDMA and
    ketamine in plain view in many different rooms on the ground floor and
    basement; (b) there was equipment related to drug production in plain view; (c)
    there had been no attempt to hide or obstruct the drugs from view; (d) there
    was a powdery residue throughout the house; and (e) there were strong odours of
    licorice and urine  characteristic of drug production  throughout the house.

[11]

The trial judge noted
    that the appellants purse was found in the living room, and in order to pass
    from there to the basement, he would have had to pass by the family room, which
    was full of large trays of drugs and drug paraphernalia, in plain view. She
    found, as a fact, that the appellant
had knowledge
of the massive drug manufacturing operation being carried out in the residence
    where he was found.

[12]

The trial judge found
    that the appellant also had
control
over the drugs
    located in the home on the basis that: (a) he was there for at least half an
    hour; (b) he was there with Mr. Ling, who was found to have been part of the
    drug operation; (c) after Mr. Ling left the house and went to the car, the
    appellant remained alone in the home for about five minutes; (d) important
    documents belonging to the appellant were found in the house; and (e) there was
    evidence in the appellants possession that he had bought US $340,000
in cash
, using over CDN $380,000
in
    cash
, very near the time that those operating the drug factory had
    acquired chemical supplies some months earlier.

[13]

In finding that the
    appellant had the ability to exercise some measure of control over or right to
    control the drugs, the trial judge stated, [i]t is highly unlikely that
    someone who had nothing to do with this large scale drug operation would be
    invited into the home to see what was so openly being carried on, particularly
    at or around the time that some of those drugs were being moved and [i]t is
    even less likely that that person would be left alone in the home with the
    drugs, thereby putting the drug operation at risk.

[14]

In
Villaroman
,
    at para. 56, the Supreme Court of Canada quoted with approval from the decision
    of the Alberta Court of Appeal in
R. v. Dipnarine
, 2014 ABCA 328, 584
    A.R. 138, at para. 22, stating that,

[c]ircumstantial evidence does not have to totally exclude
    other conceivable inferences and that a verdict is not unreasonable simply
    because the alternatives do not raise a doubt in the jurys mind. Most
    importantly, [i]t is still fundamentally for the trier [of] fact to decide if
    any proposed alternative way of looking at the case is reasonable enough to
    raise a doubt.

[15]

It is also important
    to note that where evidence is circumstantial, the standard of proof beyond a
    reasonable doubt applies only to the final evaluation of innocence or guilt by
    the trier of fact. It does not apply piecemeal to individual items of evidence.
    Here, having regard to the manner in which the case was put to us by the
    appellant, the words of this Court in
R. v. Uhrig
, 2012 ONCA 470, at
    para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of
    circumstantial evidence are explicable on bases other than guilt, it is
    essential to keep in mind that it is, after all, the cumulative effect of all
    the evidence that must satisfy the standard of proof required of the Crown.
    Individual items of evidence are links in the chain of ultimate proof:
R.
    v. Morin
, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are
    not to be examined separately and in isolation, then cast aside if the ultimate
    inference sought from their accumulation does not follow from each individual
    item alone. It may be and very often is the case that items of evidence adduced
    by the Crown, examined separately, have not a very strong probative value. But
    all the evidence has to be considered, each item in relation to the others and
    to the evidence as a whole, and it is all of them taken together that may
    constitute a proper basis for a conviction:
Cote v. The King
(1941),
    77 C.C.C. 75 (S.C.C.), at p. 76.

[16]

Further, when
    considering the reasonableness of the verdicts, and the inferences drawn by the
    trial judge, this court is entitled to consider that the appellant did not
    testify and did not adduce evidence to support any other reasonable inference
    consistent with his innocence. See
R. v. Dell
(2005), 194 C.C.C. (3d)
    321 (Ont. C.A.).

[17]

In this court, the
    appellant re-states the submission made before the trial judge, namely that the
    evidence supported an equally reasonable inference that he was in the premises
    for an innocent purpose, thereby raising reasonable doubt. He points to the
    absence of evidence that he was in any location in the house other than the
    living room, where his purse was found, and the bottom of the stairs to the
    basement, where he was found when police entered. He advances the theory that
    he may have simply been a visitor, possibly to have a meal with Mr. Ling, and
    never saw evidence of drugs, or noticed or appreciated the significance of the odours
    of the drug production, or the powdery dust.

[18]

Bearing in mind the
    principles expressed above, we do not accept this submission. In our view, the
    evidence, taken together and viewed in its totality and not in isolation,
    provided a basis on which the trial judge could properly infer knowledge and
    control of the drugs sufficient to establish the appellants possession of the
    drugs for the purpose of trafficking. As the Supreme Court said in
Villaroman
,
    it was for the trial judge to determine whether the alternative inferences
    proposed by the appellant were reasonable enough to raise a doubt. We see no
    error in her conclusion that they were not.

[19]

We reject the
    appellants submission that the trial judge improperly relied on the evidence
    of the Crowns expert, whose report was introduced on consent and subject to
    cross-examination, that the nature of clandestine drug operations made it
    unlikely that the appellant would have been in the residence for an innocuous
    purpose.

[20]

Those inferences were
    open to her. In view of the length of time that the appellant was in the house,
    and the reasonable inference that only a trusted person would have been allowed
    to enter an active and very substantial drug laboratory operating throughout
    the house, it is our view that the evidence supported the inference drawn by
    the trial judge and was inconsistent with any other rational conclusion. A
    similar inference was drawn in
R. v. Fredericks
, 1999 CanLII 949 (Ont.
    C.A.).

[21]

As well, the appellants
    purchase of a large sum of U.S. dollars, in cash and using cash, is obviously
    consistent with his participation in the operation of a cash business like drug
    trafficking. There was evidence that the drug factory had been operating for
    some time and the timing of the cash purchase was consistent with purchase of
    chemicals by those involved in the operation of the factory.

(2)

Inconsistent verdicts

[22]

Nor do we accept the
    appellants submission that the finding of guilt in relation to possession for
    the purpose of trafficking is inconsistent with the appellants acquittal on
    the production counts. The elements of the offences are different and the trial
    judge found that there was no evidence that the appellant was involved in the
    manufacturing process, or in offering to produce the drugs. The verdicts are
    capable of being reconciled on this basis.

(3)

Inconsistent with s. 8 decision

[23]

Finally, we do not
    agree that the trial judges ruling that the appellant lacked standing to bring
    the s. 8 application in relation to the search of the house was inconsistent
    with her conclusion that he had constructive possession of the drugs.

[24]

A reasonable
    expectation of privacy in the residence requires evidence of a factual
    foundation different from that required to support constructive possession.
    There was little evidence of any connection between the appellant and the
    residence, other than the fact that he was found there and had some personal
    effects there. Not surprisingly, the trial judge found that he had no
    reasonable expectation of privacy in the home, for the purposes of the s. 8
    analysis. On the other hand, the trial judge identified a number of features of
    the evidence that established both knowledge of the presence of drugs and the
    exercise of control of the drugs, sufficient to establish constructive
    possession.

[25]

For these reasons, the
    conviction appeal is dismissed.

C.

The Cross-Appeal: Sentence

[26]

The Crown seeks leave to appeal the sentence of 8 years, which it
    characterizes as manifestly unfit. It submits the trial judge also erred in
    failing to delay Mr. Wus parole eligibility until he had served half his
    sentence.

[27]

Absent an error in principle, the failure to consider a relevant factor
    or an overemphasis of appropriate factors, an appellate court should not vary a
    sentence unless the sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[28]

The Crown submits that the sentence is manifestly unfit because it
    fails to reflect the gravity of the possession of a massive quantity (150 kilograms)
    of methamphetamine, MDMA and ketamine for the purpose of trafficking. It also
    argues that the sentence gave insufficient weight to the gravity of the offence,
    having regard to the quantity and type of the drug. It emphasizes the harmful
    nature of methamphetamine and suggests that the sentence should be in line with
    sentences imposed for cocaine, which it submits are in the range of 7 to 12
    years, even for a few kilograms. It points to the street value of the drugs,
    which it puts in the range of $12 million, if sold in pill form.

[29]

As it did at trial, the Crown submits that a sentence of 12 years
    would have been appropriate.

[30]

We would not give effect to the Crowns submissions. It is not
    suggested that the trial judge failed to consider a relevant factor. Indeed,
    she considered all relevant factors, including the gravity of the offence and
    the large quantity of dangerous drugs. She also identified the range of
    sentence for this offence as being 6 to 12 years, consistent with the Crowns
    position. She identified and considered cases in which sentences in that range
    had been imposed.

[31]

The trial judge applied the principle of parity  that judges are
    required to impose similar penalties for similar offences or offences of a
    similar nature involving similar offenders. Here, the trial judge considered
    the sentences imposed on three other offenders who were arrested in the same
    operation on the same date.

[32]

Those accused were sentenced for both production of the drugs and
    for possession for the purpose of trafficking. Two received sentences of 8
    years on the possession for the purpose of trafficking charges, concurrent with
    14 years for production; the third, Mr. Ling, received a sentence of 10 years
    on the possession for the purpose of trafficking counts, concurrent with a
    sentence of 16 years for production.

[33]

The Crown highlights the fact that, unlike the other accused, the
    appellant was on parole at the time, after receiving a two-year sentence for possession
    of marijuana for the purpose of trafficking. While this is true, the evidence
    established that the other individuals were more involved in the operation than
    the appellant. We would not interfere with the sentence imposed.

[34]

Nor would we interfere with the trial judges decision not to
    increase the period of parole ineligibility. The Crown conceded that such an
    order is rare and the trial judge properly characterized it as exceptional. The
    Crown simply failed to discharge its burden of proof on the issue.

[35]

While we grant leave to appeal sentence, we dismiss the sentence
    appeal.

George R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


