



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pham, 2019 ONCA 338

DATE: 20190426

DOCKET: C62833

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tuan Duc Pham

Appellant

Mindy Caterina, for the appellant

Aaron Shachter and Jeremy Streeter, for the respondent

Heard: March 18, 2019

On appeal from the conviction entered by Justice Graeme
    Mew of the Superior Court of Justice on September 7, 2016, with reasons reported
    at 2016 ONSC 5614.

Fairburn J.A.:


Overview

[1]

A fire broke out in an industrial complex unit.
    While video cameras captured at least three people quickly leaving the unit shortly
    before fire trucks arrived, their identities could not be determined. The first
    responders found a bucket of chemicals on fire in a methamphetamine lab on the mezzanine
    level of the unit. The finished product found in the lab would have been worth approximately
    $52,200-$78,300 if sold at the gram level.

[2]

The appellant was tried for producing
    methamphetamine and possessing it for the purpose of trafficking. The Crowns
    case was entirely circumstantial. It turned on two key pieces of evidence connecting
    the appellant to the scene, and on the inferences that could be drawn from that
    evidence.

[3]

First, the appellants fingerprint was found on
    a pop can seized from the seating area on the first floor of the unit. Second,
    a cell phone that the trial judge concluded belonged to the appellant was found
    on a desk located by the door of the methamphetamine lab on the mezzanine
    level. The cell phones battery was at least two thirds charged at the time of
    seizure. The phone contained incriminating evidence, including evidence
    connecting it to methamphetamine production and the clandestine lab itself.

[4]

The trial judge found the appellant guilty on
    both counts by taking into consideration the following facts: (a) the appellants
    fingerprint on the pop can, which placed him in the unit at some point in time;
    (b) that it was obvious that something was being done with chemicals in
    the industrial unit; (c) the proximity of the appellants phone to the drug
    production equipment; (d) the fact that the phone had been used around an hour
    before the fire broke out; (e) the items on the mezzanine level, including buckets
    of chemicals, flasks, compressed gas cylinders and finished methamphetamine; and
    (g) the contents of the phone, including (i) a photo of a hydrogen chloride
    cylinder, containing a chemical used in the production of methamphetamine, that
    the trial judge found matched a cylinder found in the lab, (ii) a note that
    read Cga330 single stage ss regulator usd350, referring to a regulator used
    for controlling the flow of gas from cylinders, and (iii) photos depicting
    involvement in the workings of a laboratory and other drug production
    equipment.

[5]

The appellant alleges the trial judge made three
    broad errors by:

(a)     improperly relying upon a charging document, bad
    character evidence, a recognizance of bail, and hearsay evidence to link the
    appellant to the phone;

(b)     misapprehending the evidence; and

(c)     arriving
    upon an unreasonable verdict on the possession for the purposes of trafficking
    count or, alternatively, providing insufficient reasons for convicting on that
    count.
[1]


[6]

For the reasons that follow, I would dismiss the
    appeal.

(a)

The Alleged Errors in Linking the Appellant to
    the Phone

Overview

[7]

There is no dispute that the phone found in the
    methamphetamine lab constituted a critical piece of evidence for the
    prosecution. It could only help the Crowns case, however, if it was the
    appellants phone. The trial judge found that the only reasonable conclusion available
    based on the contents of the phone was that it was the appellants phone.

[8]

The appellant argues under the first broad
    ground of appeal that the trial judge committed errors in coming to that
    conclusion. I will first review the evidence the trial judge relied on to find
    as a fact that the phone belonged to the appellant and then explain why I do
    not agree that the alleged errors were committed.

Facts Linking the
    Appellant to the Phone

[9]

A video was taken of the inside of the
    methamphetamine lab. It shows a rudimentary-looking lab, containing various
    items strewn around the mezzanine floor, including buckets of chemicals, pipes,
    vents, wiring, gas cylinders, rubber gloves, gas masks, and finished
    methamphetamine. It would have been obvious to anyone who had been on the
    mezzanine floor, including to the person who placed the phone on the desk, that
    they were in a chemical drug lab. As the trial judge concluded, [a]ll that was
    going on [in the unit] was drug production.

[10]

The phones placement on the desk, close to a
    package of cigarettes, was consistent with the person or persons who were
    producing methamphetamine in the lab having put their personal items onto the
    desk while they worked. There were also rubber gloves on the desk and a gas
    mask in the desk drawer.

[11]

Given that the phone had been used about an hour
    before the fire was reported, and still held at least two thirds of its battery
    charge, it was open to the trier of fact to infer that the phone had been
    placed on the desk close in time to the fire. The phone users presence in the
    lab proximate to the chemical fire was compelling circumstantial evidence of
    production and possession. The contents of the phone added to that
    circumstantial picture. Most powerfully, the phone contained a picture of a hydrogen
    chloride cylinder found in the lab and a reference to a regulator needed for that
    type of cylinder.

[12]

Accordingly, no one disputes that linking the
    appellant to the phone was essential to the prosecutions case.

[13]

To establish the requisite link, the Crown
    relied upon a number of things found on the phone, including video clips
    appearing to feature the appellant and his children. The phone was also associated
    with an email address containing the appellants name
. The appellant does
    not object to the trial judges use of that evidence to link him to the phone.
    Rather, he objects to the trial judges reliance upon certified court documents
    as additional evidence linking him to the phone.

[14]

The Crown filed two certified court documents at
    trial: (a) an Information from the Brockville court, charging Duc Tuan Pham
    with two unrelated drug offences; and (b) the appellants recognizance of bail.
    The trial Crown argued that when the contents of those documents were compared
    with the contents of the phone, it provided further proof that the phone
    belonged to the appellant.

[15]

The Brockville
Information charged a Duc
    Tuan Pham with unrelated criminal matters. The address of Duc Tuan Pham,
    contained on the face of the Information, matched the address of the phones subscriber.
    In addition, diary entries on the phone corresponded to court dates noted on
    the Information. For instance, the Brockville
Information
    showed that the matter was spoken to on June 7, 2013, which corresponded to a note
    in the phones calendar that read June 7. Broxkville ct. The Information also
    showed that on July 12, 2013, the matter was listed to be spoken to in
    Brockville. On the next court date, the matter was listed for a judicial
    pre-trial. This corresponded to a note on the phone that read July 12 set date
    for pretrail [
sic
].

[16]

As for the certified recognizance of bail, it
    included a condition permitting the appellant to be outside of his residence for
    certain purposes when in the company of his children, whose names were listed
    on the face of the recognizance. Some of the children had uncommon first names.
    Those names corresponded with messages on the phone, including messages like: Hi
    daddy! Its Machine! Just kidding! Its [name]!; Hi Daddy! [name] is being
    mean to me  [a]nd it is [name]. These are just examples of the messages on
    the phone. The phones calendar also contained appointments for birthdays that
    were associated with the names on the recognizance.

[17]

The trial judge relied upon the Brockville
    Information and recognizance, in addition to the appellants family videos on
    the phone and the email address containing the appellants name that was associated
    with the phone, to conclude that the phone located in the methamphetamine lab
    belonged to the appellant.

[18]

The appellant advances four objections to the
    way in which the trial judge came to that conclusion. First, he argues that it
    was not open to the trial judge to rely upon the Brockville Information until
    he first found beyond a reasonable doubt that the Information related to the
    appellant. Second, he argues that the Brockville Information was presumptively
    inadmissible as bad character evidence, and that the Crown failed to properly
    seek its admission on a
voir dire
. Third, he
    argues that the trial judge erroneously relied upon the contents of both certified
    court documents for a hearsay purpose. Fourth, he argues that the principle
    against self-incrimination was offended by reliance on the certified
    recognizance of bail.

[19]

I will now explain why I do not agree that these
    alleged errors were committed.

The Brockville Information and Standard of Proof

[20]

The appellant argues that the Brockville
    Information could not be used to establish ownership of the phone until the Crown
    proved beyond a reasonable doubt that the appellant was the same person as the person
    reflected on the face of the Information. In advancing this argument, the appellant
    draws an analogy to a prosecution for failing to comply with an appearance
    notice. The appellant notes that this position is consistent with the position
    he took at trial, where defence counsel said that if the Crown was going to
    suggest that Duc Tuan Pham and the appellant were one and the same, the Crown
    would have to prove that. In this court, the appellant says that the applicable
    standard of proof was beyond a reasonable doubt and that the Crown failed to
    meet this burden. I disagree.

[21]

The appellant was not being prosecuted for
    failing to appear. If he were, then the Crown would be required to prove the
    essential elements of that offence beyond a reasonable doubt, including that
    the accused is the same person as the person identified in the appearance
    notice:
R. v. St. Pierre,
2016 ONCA 173, at
    para. 9. Here, the appellant was being prosecuted for drug offences. The Crown
    was required to prove the elements of those offences beyond a reasonable doubt,
    not to prove each individual relevant fact beyond a reasonable doubt.

[22]

Triers of fact are not to examine facts
    piecemeal, applying a standard of proof to each one:
R. v. Miller
(1991),
5 O.R. (3d) 678 (C.A.)
, at p. 701;
R.
    v. Morin,
[1988] 2 S.C.R. 345, at p. 359;
R.
    v. Rodgerson
,

2015 SCC 38, [2015] 2 S.C.R. 760, at para. 23. Except in rare
    situations, like those in which the Crowns entire burden is carried by a
    single fact, it is an error to proceed in that fashion:
R. v. White,
[1998] 2 S.C.R. 72, at pp. 105-6. Pieces of evidence must
    not be considered in isolation, but cumulatively in an effort to decide
    whether, on the evidence as a whole, guilt is established beyond a reasonable
    doubt. It is the cumulative effect of that evidence that matters. As noted by
    Watt J.A. in
R. v. Smith,
2016 ONCA 25, 333
    C.C.C. (3d) 534, at para. 82, each item of evidence must be considered relative
    to the other items of evidence and against the evidence as a whole.

[23]

There is no dispute in this case that the
    certified Brockville Information was admissible pursuant to s. 23 of the
Canada
    Evidence Act
, R.S.C., 1985, c. C-5
.
The Information was relevant to whether the phone belonged to the
    appellant. While I accept the appellants position that the Brockville
    Information would not have been useful in answering that question unless the
    Information related to the appellant, I do not accept that the trial judge was required
    to first satisfy himself beyond a reasonable doubt that the Brockville
    Information related to the appellant.

[24]

The appellant points to
R. v.
    Portillo
(2003)
,
174
    O.A.C 226 (C.A.), as the sole authority in support of his position that the
    Crown had to prove beyond a reasonable doubt that the Brockville Information related
    to him before it could be compared with the contents of the phone.
Portillo
does not support that position.

[25]

Although
Portillo
stands for the proposition that in some circumstances, a factual
    inference needed to give evidence relevance will only be available where
    another factual inference is first made, there is no suggestion in
Portillo
that the first factual inference must be proved beyond a
    reasonable doubt:
Portillo,
at paras. 31-35. The
    trier of fact must simply consider the cumulative effect of all of the evidence
    to determine whether the first inference can be drawn.

[26]

The circumstantial evidence in this case amply
    supported the finding that the Brockville Information related to the appellant.
    Although the Crown was using the Information to assist in establishing that the
    phone was the appellants, the contents of the phone also assisted in showing
    that the Brockville Information related to the appellant. For instance, the phone
    that contained the notes corresponding to the Brockville Information also
    contained a video of the appellant and was connected to the email address with
    the name tuanpham in it.

[27]

Moreover, the fact that the subscriber to the
    phone shared an exact address with the person on the Brockville Information who
    shared the appellants name (albeit with the first two names in reverse order)
    was evidence that the phone was at least connected to the Brockville Information,
    and the Information to the phone.  The phones notes also corresponded to the
    dates on the Information, providing more evidence that the phone was connected
    to the Brockville Information and the Brockville Information to the phone, and
    both the Information and the phone to the appellant. There was ample evidence
    that the Brockville Information related to the appellant.

The Brockville Information as Bad Character Evidence

[28]

Although it was not advanced in oral argument,
    the appellant maintained in his written submissions that the charging document
    constituted bad character evidence and was presumptively inadmissible. Although
    the unrelated charges constituted bad character evidence that undoubtedly would
    have been subjected to an admissibility
voir dire
had this been a jury trial, the Information contained clearly
    relevant and highly probative evidence.

[29]

The lack of objection to the documents
    admission reflects a common sense acknowledgement that, in this judge-alone
    trial, the trier of fact was more than capable of avoiding any prohibited
    propensity reasoning. The reasons for judgment reflect that he was successful
    in that regard and no suggestion is made to the contrary. The evidence was not
    used for an improper purpose.

The
Hearsay
Slip

[30]

I now turn to the appellants point that the
    trial judge erred by relying upon both the Brockville Information and the
    recognizance for the truth of their contents, violating the hearsay rule.

[31]

Although the documents were admissible under s.
    23 of the
Canada Evidence Act,
that provision
    does not render the documents admissible for the truth of their contents:
R.
    v. Caesar,
2016 ONCA 599, at para. 40. Although the
    record is somewhat muddy, it seems that Crown counsel did not intend to have
    the trial judge rely upon the documents for that purpose. As the trial Crown
    said in his closing submissions: [t]hese documents are not being tendered for
    the truth of their contents. Despite that submission, the trial Crown slipped up
    in his closing submissions when he referred to the names of the appellants
    children as if they were the actual names of those children. Of course, those
    names would only be known if the names on the face of the recognizance were
    considered for the truth of their contents.

[32]

The appellant says that the trial judge used both
    the Information and the recognizance for a hearsay purpose. I do not agree that
    there was any significant use of the documents for such a purpose.

[33]

First, the trial judges comparison of the
    address on the Brockville Information with the phone subscribers address did
    not offend the hearsay rule. The trial judge did not conclude that the
    appellant lived at that address because it said so on the Brockville
    Information. Rather, he relied upon the fact that the two addresses were the
    same. The informations evidentiary value came from its comparative value, and
    not from the truth of whether the appellant actually lived at the address.

[34]

Second, the trial judges conclusion that the court
    dates noted in the phone corresponded with the dates on the Brockville
    Information also did not engage the hearsay rule. The trial judge was not using
    the dates to find that the court appearances actually happened. Again, the
    value of the evidence lay in its comparative value and not in the truth of its
    contents.

[35]

The trial judge made only one small hearsay-related
    slip in his reasons, when he concluded that the text messages on the phone referred
    to individuals with the same first names as Mr. Phams children. It appears
    that the trial judge took the childrens names to actually be those included on
    the face of the recognizance in coming to this conclusion. The respondent
    fairly concedes that the trial judges phrasing of the above finding reflects
    his use of the contents of the recognizance for a hearsay purpose.

[36]

This was a harmless error:
R. v. Khan,
2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 29-30;
R.
    v. Van,
2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35;
R.
    v. Sekhon,
2014 SCC 15,
[2014] 1 S.C.R. 272,
at para. 53. The appellants childrens names did not matter to the
    end result. What mattered was that the person using the phone was communicating
    with people of the same names as those listed as children on the recognizance
    of a person with the appellants name.

[37]

The fact that the evidence placing the phone in
    the appellants possession was overwhelming adds to the harmless nature of the
    error. The video of the appellant and the email address alone were sufficient
    to give rise to an inference that this was the appellants phone. The
    additional evidence only served to strengthen that already available inference.

Self-Incrimination

[38]

The appellant says that the use of the
    recognizance also breached the principle against self-incrimination. The
    appellants position on this point has evolved substantially over time.

[39]

The appellant initially objected to the
    introduction of the recognizance at trial. Counsel said that she had never had
    a Crown attempt to use a bail document before to prove its case, and that it
    was like conscripting an accused against himself by using its own process as a
    statement. Counsel agreed that the document be admitted so as not to delay
    matters, but suggested that she may argue admissibility the next day. The trial
    continued. The matter was only revisited during closing submissions, when
    counsel instead took the position that the self-incrimination concern went to
    weight and not admissibility.

[40]

In written submissions on appeal, the appellant
    took the position that the use of the recognizance breached his s. 13
Charter
right against self-incrimination. The appellant argued
    that admitting any statement made by an accused in a bail proceeding offends
    the principle against self-incrimination.

[41]

During oral submissions on appeal, the appellant
    acknowledged that s. 13 cannot ground his claim since the Crown did not use his
    prior testimony:
R. v. Nedelcu
, 2012 SCC 59,
    [2012] 3 S.C.R. 311, at para. 75.

Instead, during oral submissions, the appellants position changed
    to one rooted in s. 7 of the
Charter
and the
    protection against self-incrimination
.
Both
R.
    v. White
, [1999] 2 S.C.R. 417,

and
R. v. Fitzpatrick
,
[1995] 4 S.C.R. 154,
were mentioned in
    oral submissions. The appellant fairly acknowledged that this argument was not
    raised at trial or prior to oral submissions.

[42]

The respondent argued that this court should not
    entertain the newly raised constitutional issue. I agree.

[43]

Admissibility was conceded at trial.
    Accordingly, there is no record upon which this court can assess the issue; it
    should not be determined in the absence of such a record. Not only would this
    court lack the benefit of considered reasons by the trial judge, we are not
    even aware of the facts upon which the recognizance is based. We do not know whether
    the bail was contested or on consent. It would be inappropriate to consider the
    issue now.

[44]

Moreover, this legal issue only touches upon the
    information gleaned from the recognizance. In light of all of the evidence
    informing the trial judges conclusion that it was the appellants phone, the
    same finding would have been inevitable even removing the recognizance from evidence.
    The childrens names were one small piece in the circumstantial picture
    pointing toward the appellant as the owner of the phone.

(b)

The Alleged Misapprehension of Evidence

[45]

The appellant next argues that the trial judge
    misapprehended evidence relating to pictures saved on the phone.

[46]

As previously described, the trial judge
    concluded that one of the pictures in the phone was of the exact hydrogen
    chloride cylinder found in the methamphetamine lab. The appellant does not
    object to that finding.

[47]

The trial judge also found that there were
    [o]ther photographs on the phone [that] show involvement in the workings of a
    laboratory. Later in his reasons, the trial judge described those photos as
    depicting other drug production equipment. The appellant says that this
    finding constitutes a misapprehension of evidence.

[48]

The appellant contends that there was no basis
    to conclude that those photographs, depicting wiring, valves and ducting, were of
    drug production equipment. There was no
viva voce
evidence to this effect and no expert evidence was led on this point.
    In the absence of any evidence interpreting the photographs, the appellant says
    that it is simply not possible to say that they depicted drug production
    equipment.

[49]

Although the respondent acknowledges that there
    was no evidence elicited about the content of those photos and exactly what
    they depicted, he argues that the photos must be considered in context,
    including against the video of the drug lab. Among other things, that video
    depicts the methamphetamine lab as containing wiring, valves and ducting and
    the trial judges comments must be seen in that context.

[50]

The trial judge watched the video in court and
    had it available to him as an exhibit. It was an addendum to the parties
    Agreed Statement of Facts. Although no one testified about whether the pictures
    actually showed drug production equipment, the trial judge knew from the
    video that vents and wiring and valves were used in a methamphetamine lab.
    While those items may also have other more benign uses, they can be used in
    methamphetamine labs. Although, standing on its own, the suggestion that the
    photos were of other drug production equipment was an overstatement, I take
    the trial judges comment to mean that the photos were of items that could be
    used in the production of methamphetamine, which corresponds with the activity
    taking place in the lab where the fire broke out. Accordingly, I see no
    misapprehension of the evidence or inappropriate speculation.

(c)

The Alleged Unreasonable Verdict and
    Insufficient Reasons Respecting the Possession for the Purpose Count

[51]

Finally, the appellant argues that the
    conviction on the possession for the purpose of trafficking count was
    unreasonable. If not, he argues that the trial judges reasons are insufficient
    to permit appellate review. I disagree.

[52]

A verdict is unreasonable only where a properly
    instructed jury, acting judicially could not have come to the verdict:
R.
    v. Mendez,
2018 ONCA 354, at para. 20. That is not this
    case.

[53]

Once the trial judge concluded that the
    appellant was guilty of producing methamphetamine, a verdict that the appellant
    does not challenge as unreasonable, the trial judge moved on to consider the
    possession for the purpose of trafficking count. The parties agreed that
    whoever possessed the methamphetamine in its final form would have done so for
    purposes of trafficking. Therefore, by the time that the appellant was found
    guilty of production, the real issue for determination on the possession for
    the purpose of trafficking count was whether the appellant had sufficient control
    over the finished substance.

[54]

After reviewing all of the evidence, and making
    specific factual findings, the trial judge concluded as follows:

No reasonable inference of an innocent purpose
    for Mr. Phams presence on the premises can be drawn from these primary facts.
    All that was going on there was drug production.



The only rational inference that can be drawn
    from the primary facts is that Mr. Pham was involved in producing
    methamphetamine on the premises. He was there at or very shortly before the
    fire which resulted from the production of methamphetamine. His phone contained
    information firmly linking him to methamphetamine production.

It follows that
    he had a measure of control over the methamphetamine found at the unit and,
    consequently possession of it.

[55]

The appellant argues that there was insufficient
    evidence of control to support the conviction on the trafficking count, as
    the role that the appellant played in drug production was unknown. I disagree.

[56]

In the circumstances of this case, involving a
    small methamphetamine lab that contained the finished product in an amount that
    the parties agreed could only be possessed for purposes of trafficking, control
    by the appellant was an available common sense inference. After finding that
    the appellant was involved in actually producing the methamphetamine, that he
    was present in the lab at the time that the fire broke out or shortly before,
    and that the fire resulted from the production of the drug, it was open to the
    trial judge to conclude that the appellant had some measure of control over the
    finished product. As he said, that control follow[ed] from the facts he
    found.

[57]

Accordingly, the verdict on the possession for
    the purpose of trafficking count was not unreasonable. Moreover, read as a
    whole, the trial judges reasons explain what was decided and why:
R.
    v. R.E.M.
,

2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 17-18. His path to
    conviction was clearly discernable and he was not required to go further.

Conclusion

[58]

I would dismiss the appeal.

Released: MF Apr 26 2019

Fairburn J.A.
I agree. Paul Rouleau J.A.
I agree. B.W. Miller J.A.





[1]

The appellant abandoned the argument he advanced
    in his written materials based upon
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000.


