Assumptions prove undoing of Crown drug case

By John L. Hill

Law360 Canada (March 22, 2023, 10:01 AM EDT) --
John L. Hill
John L. Hill
Sometimes in our quest to stamp out evil, we infer facts that may not be there. This is quite often the case when police observation reports of suspected drug traffickers are acted upon assuming that what the observer believes must also be convincing to a court weighing the evidence. The case of R. v. Chu 2023 ONCA 183 sends the message home to prosecutors everywhere, “Do not assume!”

Dung D. Chu had been under observation by the Ottawa Police Service. Eleven of its members testified at trial. Police observed the comings and goings of Chu at two different Ottawa residences, one on Meadowlands and one at Malibu. Both units had multiple rooms and were visited by many people. Police were unable to observe Chu’s movements inside the residences but assumed he must be up to no good. He did not have sole control of either residence and there was no indication that his interaction with people attending either residence may have been legitimate. Police, of course, assumed that drug trafficking was the motive.

When police finally swooped in, Chu was charged with possession for the purpose of trafficking cocaine, cannabis, cannabis resin, MDMA, crack cocaine, psilocybin and possession of property obtained by crime. Even though the drugs were not in plain sight, police assumed the court would have no trouble convicting with such a haul of contraband being found.

The matter went before Justice Robyn M. Ryan Bell of the Superior Court of Justice in May 2021 (R. v. Chu 2021 ONSC 3825). The court was not convinced and acquitted the accused. On March 20, 2023, a three-judge panel of the Ontario Court of appeal unanimously upheld the acquittal.

It was uncontested that the evidence against Chu was circumstantial. The Crown argued that the trial judge erred in considering each piece of the circumstantial evidence in isolation and therefore could not draw a conclusion that seemed so obvious to the prosecution in confirming the police assumption that Chu was a drug trafficker.

Justice Janet Simmons, writing on behalf of the panel, concluded that in cases such as this, where the evidence is circumstantial, the court was under an obligation to consider the evidence as a whole and its cumulative effect. The trial judge, the Appeal Court found, had correctly instructed herself on how circumstantial evidence cases were to be considered, and the decision had cited R. v. Uhrig 2012 ONCA 470 and R. v. Wu 2017 ONCA 620. The Appeal Court concluded that “the trial judge’s analysis of whether the evidence satisfied her that the Crown had proven possession beyond a reasonable doubt shows that she has considered the cumulative effect of the circumstantial evidence and did not assess individual pieces of circumstantial evidence, in isolation, against the reasonable doubt standard.”

The trial judge, it was held, properly looked at a number of aspects of the evidence and found “limitations” in the surveillance evidence and the expert opinion evidence submitted at trial. That is not an error. As had been determined in R. v. Ceballo 2021 ONCA 791, it is often necessary to consider the significance of individual pieces of evidence before their cumulative effect can be considered.

The trial judge had accurately concluded that when other individuals had access to residences having multiple rooms and other people visited both residences, there are reasonable inferences that can be drawn consistent with Dung Chu’s innocence.

This decision will no doubt be criticized by people who see a person that police assume to be a drug pusher released to the streets. But assumptions of guilt can be and often are wrong. Unless we are steadfast in our resolve to punish people accused of crimes only when their guilt is proven, and not assumed, beyond a reasonable doubt can we be sure our criminal justice system is operating effectively. Otherwise, we go back to burning witches.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

Photo credit / Vladimir Cetinski ISTOCKPHOTO.COM

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