IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Benny Huynh is charged with five counts of possession for the purpose of trafficking a variety of controlled substances, including fentanyl, carfentanil, cocaine, heroin and alprazolam, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”).

[2]           Mr. Huynh was initially co-accused with Jennifer Hall on the first two of the five CDSA charges. In reasons released on 13 December 2019 following a voir dire, I found that Ms. Hall had been subjected to an unlawful strip search and, with respect to her charges, ordered a judicial stay of proceedings. In a separate voir dire, Mr. Huynh challenged the validity of a search warrant obtained by police and executed at his residence. In my 13 December ruling I found that, upon review, there were insufficient grounds to connect the residence to the drug trafficking being investigated by police, and concluded that Mr. Huynh’s s. 8 Charter right to be secure from unreasonable search and seizure had been breached. After hearing submissions on the application of s. 24(2), on 22 January 2020, I gave reasons excluding the evidence seized from that residence when the search warrant was executed.

[3]           Crown counsel concedes that there is no evidence to support Counts 3-5 in light of my ruling on s. 24(2) and invites a verdict of acquittal on those counts. Crown counsel submits that there is additional admissible evidence, not affected by the exclusion order, which is relevant to Count 1 (PPT fentanyl and carfentanil) and Count 2 (PPT cocaine). Crown submits that this evidence proves beyond a reasonable doubt that Mr. Huynh and Ms. Hall jointly possessed drugs, found on her person and in a nearby motor vehicle, some hours before the search warrant was executed at the residence; he invites me to convict on Counts 1 and 2.

[4]           Defence counsel submits that the evidence connecting Mr. Huynh to these drugs falls short of proving beyond a reasonable doubt the necessary elements of knowledge and control. Defence counsel also submits that the Crown has not proved to the requisite standard the element of identity. He concedes that if the Crown can prove these elements, the drugs were possessed for the purpose of trafficking.

[5]           During submissions, I asked for counsel’s view with respect to the admissible evidentiary record for the remaining substantive charges. I heard from a number of police officers during the course of the voir dire; some of that evidence focused solely on the search warrant challenge and the strip search issue, so there is a need to identify with precision what is relevant and admissible, and what is not. Defence counsel has conceded that relevant evidence tendered at the voir dire need not be repeated at trial.

[6]           Crown counsel submits (and defence agrees) that the following evidence tendered at the voir dire is relevant and admissible at this stage of the trial: the testimony of Constable Galasso, Constable Roberts, Constable Torenvliet, Constable Vandfelt, and Cpl. Leslie with respect to their participation in this investigation on 31 May 2017, video footage of a portion of the police surveillance conducted on that date, and photographs of the items seized from Ms. Hall’s person and from inside the vehicle. In addition to this evidence, Crown has tendered an agreed statement of facts signed by both counsel. That statement, together with attachments, establishes that the substances seized on that date were analyzed and identified as the controlled substances particularized in Counts 1 and 2.

[7]           In May of 2017, the Langley RCMP drug squad initiated a project aimed at investigating drug activity in Langley. The first investigative steps were taken on 18 May 2017. The project was concluded with the arrests of Hall and Huynh on 31 May 2017.

[8]           The investigation commenced with calls placed to a known dial-a-dope drug phone by undercover officers seeking to negotiate a street-level drug purchase. This led to a series of successful undercover drug purchases, and the identification of vehicles and individuals connected to that activity. Over a number of days police identified as targets of their investigation a residence in Surrey, as well as an Asian male observed traveling to and from that residence in a Mazda CX5 with BC plate number CX943J (“the first Mazda”).

[9]           On 31 May 2017, police observed an exchange involving the driver of the first Mazda, who Crown asserts is Mr. Huynh, and a second Mazda CX5, with BC plate number 582XMK (“the second Mazda”). The driver of the first Mazda got out of his vehicle carrying a grey plastic shopping bag. He walked up to the rear passenger door of the second Mazda, opened the door and placed the bag into the rear passenger area. He then returned to his vehicle, empty handed, and drove away. That event was captured in a video recording made by Constable Galasso. Police followed the second Mazda, and arrested Ms. Hall as she was standing within a short distance of that vehicle. Police located a plastic bag, which held individually wrapped drugs in her purse. A second, similar, plastic bag containing packaged drugs was located inside a grey plastic Walmart shopping bag, which was in the centre console area of the second Mazda. The Crown asserts that two plastic bags of drugs had been in the shopping bag delivered by the driver of the first Mazda.

[10]        The parties agree that the only issues for me to decide are whether the Crown has proved beyond a reasonable doubt that Mr. Huynh was the male who transferred the bag from the first Mazda to the second, and, if that element is proved, that he possessed the illicit drugs which were located in Ms. Hall’s purse and inside the second Mazda. The defence concedes that the Crown has proved the nature of the substances which were seized by police on 31 May, and that they were possessed for the purpose of trafficking.

[11]        The case against Mr. Huynh is circumstantial.

[12]        In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada commented on the long understood danger that a trier of fact might draw an inference from circumstantial evidence which “fills in the gap”, or engage in reasoning which might best be characterized as “jumping to a conclusion”:

[13]        The Supreme Court in Villaroman also re-affirmed that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts:

[14]        While the Crown may need to negative reasonable possibilities inconsistent with guilt, it need not negative “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused…the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” The Court cautioned that to support a conviction, the circumstantial evidence should be such that it excludes any other reasonable alternative [emphasis added]: Villaroman at paras 37, 38, 41-2.

[15]        Possession is defined in s. 4(3) of the Criminal Code:

[16]        Possession may be personal, involving the manual handling of an object, or constructive, where the subject puts or keeps the object in a place which may or not belong to him, but intends to have the object there for his use or benefit, or for the use or benefit of another person. Whether possession is personal or constructive, the Crown must prove beyond a reasonable doubt that the accused had knowledge of the illicit nature of the object at a time which is co-existent with some act of control: R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531; R. .v. Morelli, 2010 SCC 8.

[17]        The Crown refers to R. v. Nikolovski, [1996] S.C.R. 1197, for the proposition that I may rely on my own comparison of the male in the 31 May surveillance video to Mr. Huynh’s physical appearance in court, and find that the Crown has proved this element beyond a reasonable doubt. The Crown also submits that Mr. Huynh has been reliably identified as the male from the first Mazda by police officers who observed him on that day.

[18]        Constable Galasso testified that he videotaped the Mazda to Mazda meeting on 31 May 2017; that video was tendered as an exhibit. He testified that the entire exchange was of short duration, less than a minute. The second Mazda was followed away from the scene by the surveillance team. The first Mazda was not followed, and the male from the first Mazda was not arrested. Constable Galasso identified Mr. Huynh in court as the male from the first Mazda.

[19]        Cross-examination of Constable Galasso established that Mr. Huynh was unknown to him prior to this investigation, and that other than the video, he has not seen him since 31 of May 2017. He was asked whether he noted anything in particular about the male from the first Mazda other than that he was an Asian male. The only additional particular he was aware of was that the male had short spiky hair. He then conceded that this detail must have come from another officer working surveillance that day, rather than from his own observation of the male.

[20]        Constable Roberts was another member of the surveillance team who observed an Asian male from the first Mazda carry a bag to the second Mazda on 31 May. He made his observations of that scene while looking in the rear view mirror of his vehicle. He also testified that he watched the Asian male from the first Mazda coming and going from the target residence several times that day. He arrested Mr. Huynh at the target residence hours later on that same day; he identified Mr. Huynh in court as the same male that he arrested. The only note he made of Mr. Huynh’s appearance at that time was that he appeared to be Asian. He did not testify that the male he arrested was the male observed during the Mazda to Mazda exchange. He had no prior knowledge of Mr. Huynh.

[21]        Constable Vandfelt also observed the Mazda to Mazda transaction at the 31 May meet. He did not testify that Mr. Huynh was the driver of the first Mazda at the 31 May meet. Constable Vandfelt drafted a search warrant application for the target residence, and he was a member of the entry team when that warrant was executed. He testified in chief that when he entered the basement suite of that home he saw the male he had observed operating the first Mazda “on prior days.” Constable Vandfelt testified this male was arrested at the residence and transferred into the custody of Constable Roberts. He was not asked whether he was able to make an in court identification of that male.

[22]        In cross-examination, Constable Vandfelt testified that he was sure that the male arrested at the residence was the same male he had seen in association with the first Mazda throughout the investigation because he had observed him during surveillance prior to the 31^st of May, and, in particular, had videotaped one of those observations at a Pho restaurant on the 26^th of May. He described the 26 May footage as a close up of the male’s face and body while he stood outside the restaurant for approximately 2-3 minutes. He did not mention the 26 May surveillance during his evidence in chief; the surveillance video was not tendered before me, and this issue was not pursued further in cross-examination.

[23]        Constable Torenvliet was part of the surveillance team, but he did not observe the Mazda to Mazda meet. Prior to that meeting he saw the first Mazda depart from the target residence, but he could not see who was driving.

[24]        The video is just under a minute in duration. It begins with an Asian male opening the driver side door of the first Mazda and stepping out. The male’s face is visible for approximately three seconds before he turns to his right and begins to walk with his back to the camera towards the second Mazda. It is possible to make out the male’s facial features for about one to two seconds, and perhaps another one second in profile as he returns to his car and begins to re-enter on the driver side. The first view is from a distance; the facial features of the male are slightly blurry. The camera operator has zoomed in closer for the second view, which is better than the first, but it is still somewhat blurry.

[25]        The quality of the video is less than ideal for observing fine details like facial features, but it is adequate for observing with accuracy the two vehicles involved, that the male appears to be Asian, his build, hair style and clothing, and the movements of the male back and forth between those vehicles. I find that the video alone is not of sufficient quality to permit me to conclude beyond a reasonable doubt that the Asian male in that video and Mr. Huynh are one and the same.

[26]        What I am left with is this. Constable Galasso’s bare assertion that Mr. Huynh, a man he has not seen since 31 May 2017, is the man from the first Mazda. Constable Vandfelt arrested Mr. Huynh on the 31^st of May around midnight, and asserts that he is the same man he saw operating the first Mazda “on prior days” and “throughout” the investigation; I accept that this includes the meet on 31 of May. Constable Vandfelt cites as support for this identification his observation of the same male who was video recorded while standing outside a Pho restaurant on 26 of May.

[27]        Although I find it odd that Constable Vandfelt was not asked if he was able to identify in court the driver of the first Mazda, I have concluded that his evidence is much more reliable than Constable Galasso’s evidence that Mr. Huynh was that man. Constable Vandfelt saw this person on 26 of May, recognized the same person at the 31 May meet, and arrested him later that same night at the target residence. Constable Roberts took custody of the arrested male and identified him as Mr. Huynh. I find that this is reliable identification evidence, and that this element has been proved beyond a reasonable doubt.

[28]        There is no question that Constables Galasso, Roberts and Vandfelt observed the driver of the first Mazda transfer a plastic bag to the second Mazda, and that the bag appeared to have been weighed down by its contents. From my viewing of the video, the bag appeared to be a greyish colour. Constable Roberts believed the bag was white; PC Vandelft described it as a grey plastic bag. None of the officers were able to identify any writing or logo on the bag, and nothing like that is visible on the video.

[29]        Police surveillance followed the second Mazda starting at 0855.  Constable Galasso testified that at 0857 a vehicle, which was not identified by plate number but was believed to be the same Mazda, was observed parked on the side of the road. The next sighting was at 0905, when Constable Leslie reported that she saw what she believed to be the same vehicle at a different location. Once again, the vehicle was not identified by plate number. Constable Galasso testified that Constable Roberts was the next to observe the vehicle at 0907, parked in a lane on 192 Street. The source for this evidence appears to have been a surveillance report; Constable Roberts did not give this evidence himself, so I have no first-hand account of this observation.

[30]        There is a further gap in surveillance until 0911, when Constable Tornvliet drove into an alleyway off 92 Street and observed Ms. Hall standing beside the second Mazda, holding a purse. He took Ms. Hall into custody and examined the contents of her purse, which was already open. He observed a large plastic baggie containing what appeared to be drugs packaged for sale.

[31]        Constable Galasso joined Constable Tornvliet in the alley and looked inside the second Mazda. He observed a greyish coloured Walmart plastic shopping bag in the area of the centre console. Inside that bag was another plastic baggie containing drugs packaged for sale. Both of the plastic baggies, the one in Hall’s purse and the other in the vehicle, are similar in appearance, but there is nothing striking or unique about them; they are generic plastic baggies, which just about anyone might have in their home. There were no other plastic shopping bags located in the vehicle or in Ms. Hall’s purse.

[32]        Crown counsel argues that the only reasonable inference to be drawn from this body of evidence is that the Walmart bag found in the second Mazda is the same bag transferred into that vehicle by the driver of the first Mazda, and that the drugs in Ms. Hall’s purse also came from that bag. Crown also submits that I should infer from this evidence that the driver of the first Mazda knew that there were drugs in the Walmart bag at the time of the transfer.

[33]        Defence counsel points out that police were unable to observe the Walmart markings on the bag, which was transferred to the second Mazda. Counsel also submits that gaps in surveillance of the second Mazda between the meeting and the arrest of Ms. Hall leave open a reasonable possibility that the drugs located by police could have come from somewhere else after that meeting, or that they might have been in the second Mazda all along. In other words, defence counsel submits that there is a break in continuity with respect to the Mazda and its contents, which raises a reasonable doubt with respect to the element of possession.

[34]        I find that there are significant gaps in the surveillance following the meeting, and leading up to the arrest of Ms. Hall and the search of her vehicle. The meeting happened at 0855. Purported sightings of the second Mazda by PC Galasso at 0857 and Cpl. Leslie at 0905 were not confirmed by vehicle plate number. Given that there were two nearly identical Mazda model CX5’s at the meeting, it does not seem far-fetched to think that there could have been other CX5’s in the area. I have concluded that these two observations are possible, but not confirmed sightings of the second Mazda.

[35]        I have no evidence from PC Roberts that he saw that vehicle at 0907, and the next confirmed sighting is not until 0911.

[36]        The situation here would have been quite different had police initiated a motor vehicle stop and arrest immediately after the bag was transferred to the second Mazda, or even if police had maintained continuity of the second Mazda and its driver after the transfer, through to Ms. Hall’s arrest and the search of that vehicle.

[37]        Although I find that the bag located in the second Mazda was probably the same bag transferred by the driver of the first, I cannot come to that conclusion beyond a reasonable doubt. From what I am able to observe of the plastic bag on the video, it appears to be similar but not identical to the Walmart bag, which was found in the centre console of the second Mazda. The Walmart logo is not visible on the video, nor was it visible to the surveillance officers who viewed the transfer in real time. The Mazda and its driver were not kept under continuous surveillance between 0855 and 0911, which means that it is not possible to say whether items were moved in or out of that van during that span of time; that gap left ample opportunity for something like this to have happened undetected by police.

[38]        The circumstantial evidence in this case does not exclude other reasonable alternatives. To express it in a slightly different way, I find that there are reasonable inferences other than guilt.