R. v. Nguyen (T.T.), 2016 ONCA 182

• Judge: MacPherson, Tulloch and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 19, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 182;(2016), 346 O.A.C. 375 (CA)

R. v. Nguyen (T.T.) (2016), 346 O.A.C. 375 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.005

Her Majesty the Queen (appellant/respondent) v. Tan Tien Nguyen (respondent/appellant)

(C56689; C57666; 2016 ONCA 182)

Indexed As: R. v. Nguyen (T.T.)

Ontario Court of Appeal

MacPherson, Tulloch and Pardu, JJ.A.

March 3, 2016.

Summary:

Nguyen was the proprietor of a garden supply business. He was found guilty of conspiracy to commit the offences of possession of marijuana for the purpose of trafficking and production of marijuana, and the substantive offences of possession of marijuana for the purpose of trafficking and production of marijuana. He was acquitted of a charge of money laundering [see 2013] O.T.C. Uned. 6913]. Nguyen was sentenced to 20 months' concurrent incarceration on the conspiracy counts. The convictions on the substantive charges were stayed on the basis of R. v. Kienapple. Nguyen was also subjected to a forfeiture inquiry, ordered to pay a fine of $2,809,211.40 in lieu of forfeiture of certain property, and ordered to forfeit a number of items, including his family and business properties. Nguyen appealed his convictions, forfeitures and the fine in lieu of forfeiture on the basis that the verdicts were unreasonable and unsupported by the evidence and that the trial judge erred in law in coming to the guilty verdicts. The Crown appealed the acquittal on the money laundering count.

The Ontario Court of Appeal allowed Nguyen's appeal and quashed the convictions on the two conspiracy counts. The court lifted the stay of the two substantive counts, and imposed the sentence and related orders imposed by the trial judge The court dismissed the Crown's appeal.

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Conspiracies - Agreement - What constitutes a conspiracy - The appellant was the proprietor of All Seasons Garden Supply (ASGS) - He was arrested and charged based on a police investigation of his business practices and, in particular, the discovery of four marijuana grow operations linked to four ASGS customers - The appellant was found guilty of, inter alia, conspiracy to commit the offences of possession of marijuana for the purpose of trafficking and production of marijuana - The Ontario Court of Appeal quashed the convictions on the conspiracy counts - The court stated that "the trial judge based his finding of the existence of a conspiracy on the fact that the appellant's products and services had the effect of aiding and abetting unspecified marihuana grow operators with their operations, by providing one-stop shopping for products and services on an anonymous basis. In other words, the appellant's actions furthered the objective of marihuana grow operators in general. The trial judge appears to have applied the broader view of party liability for conspiracy which has now been rejected by the Supreme Court of Canada [in R. v. J.F.]. This was an error. ... however, if the circumstantial evidence is such that, even applying the narrower view of party liability endorsed in J.F., the existence of an agreement is established, then the error might not constitute a reversible error. ... The question is therefore whether the evidence gives rise to an inference of the existence of a common agreement, or a mutual criminal objective, between the appellant, Son [the only ASGS employee] and the marihuana grow operators to produce marihuana or possess marihuana for the purpose of trafficking, as the indictment specifies. In my view, it does not. ... it cannot be enough that the appellant sold legal items that he knew could be used for illegal purposes - and likely were being so used - to infer the existence of a common agreement" - See paragraphs 27 to 30.

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Conspiracies - Agreement - What constitutes a conspiracy - The appellant was the proprietor of All Seasons Garden Supply (ASGS) - He was arrested and charged based on a police investigation of his business practices and, in particular, the discovery of four marijuana grow operations linked to four ASGS customers - The appellant was found guilty of, inter alia, conspiracy to commit the offences of possession of marijuana for the purpose of trafficking and production of marijuana - The Ontario Court of Appeal quashed the convictions on the conspiracy counts - The court stated that "the general fact that the appellant operated a garden supply store, even knowing that nearly all of his customers wanted the products for marihuana grow operations, is not sufficient in itself to make him a party to a conspiracy to produce marihuana or possess marihuana for the purpose of trafficking for the following reasons: • There is no evidence of an overarching agreement to produce marihuana or possess marihuana for the purpose of trafficking to which Son [the only ASGS employee] and ASGS's customers were parties. There is no evidence of a mutuality of purpose amongst the appellant, Son, and the unknown purchasers, and no common enterprise of production of marihuana or possession of marihuana for the purpose of trafficking, the conspiracy charged. • There is, in general, no evidence of what ASGS's purchasers ultimately did with whatever they purchased. • In the event that any of the purchasers did use the products in a marihuana grow operation, there is no evidence that the appellant had any stake in those grow operations. • The transactions to which the appellant might have been a party through his business were separate agreements of purchase and sale of legal products. • Whatever use the purchasers made of the unknown garden supply products, it was too remote from the appellant's business's sales to them. • The conspiracy charged was an agreement to produce marihuana or possess it for the purpose of trafficking. This is different from the conspiracy found, an agreement to aid and abet marihuana grow operators" - See paragraph 43.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - The appellant was the proprietor of All Seasons Garden Supply (ASGS) - He was convicted of production of marijuana and possession of marijuana for the purpose of trafficking on the basis that, through his garden supply business, he aided and abetted marijuana grow operations - The appellant appealed - The Ontario Court of Appeal stated that "On the basis of the evidence the trial judge accepted, the appellant knew in general he was helping or facilitating marihuana grow operators in their operations and intended to help or facilitate marihuana grow operators in their grow operations. In order for the acts of the appellant to amount to aiding and abetting, however, there must be a finding that (1) the offences of production of marihuana and possession of marihuana for the purposes of trafficking occurred; and (2) the appellant's assistance (through acts or omissions) can be linked to the commission of the offence such that he actually assisted in the commission of the offence. ... The trial judge discussed four specific ASGS customers who were followed and who, on the evidence he accepted, were undoubtedly involved in actual marihuana grow operations designed for commercial sales. ... The trial judge found that the appellant knew his products were destined for marihuana grow operations, and that Son, the only ASGS employee, was acting under his instructions. These findings are sufficient to support conviction for aiding production of marihuana and aiding possession of marijuana for the purpose of trafficking in relation to the July 13, 2009 delivery of growing supplies to Montreal, where a substantial grow operation was found within eight days of the delivery. Similarly, Nguyen himself loaded a customer van with supplies on June 17, 2009 and a grow operation was discovered at that customer's location within 30 days. Here again, the conviction can be supported on the basis of the trial judge's findings. The evidence is thinner on the other two transactions" - See paragraphs 46 to 61.

Narcotic Control - Topic 505

Offences - General principles - Parties to offences - [See Criminal Law - Topic 2744 ].

Narcotic Control - Topic 584

Offences - Possession - General - Conspiracy to possess for the purpose of trafficking - [See both Criminal Law - Topic 2650 ].

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - [See Criminal Law - Topic 2744 ].

Narcotic Control - Topic 832

Offences - Cultivation or production - What constitutes - [See Criminal Law - Topic 2744 ].

Narcotic Control - Topic 835

Offences - Cultivation or production - Conspiracy to unlawfully produce controlled substance - [See both Criminal Law - Topic 2650 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

R. v. J.F., [2013] 1 S.C.R. 565; 440 N.R. 69; 301 O.A.C. 156; 2013 SCC 12, appld. [para. 19].

R. v. Trieu (B.) (2008), 429 A.R. 200; 421 W.A.C. 200; 2008 ABCA 143, consd. [para. 20].

R. v. Lam (T.K.), [2005] A.R. Uned. 878; 2005 ABQB 849, refd to. [para. 20].

R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), leave to appeal refused (2006), 352 N.R. 197; 221 O.A.C. 400 (S.C.C.)refd to. [para. 20].

R. v. Cotroni; R. v. Papalia (1979), 26 N.R. 133; 45 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 21].

R. v. Longworth (1982), 67 C.C.C. (2d) 554 (Ont. C.A.), refd to. [para. 23].

Paradis v. The King, [1934] S.C.R. 165, refd to. [para. 25].

U.S. v. Falcone (1940), 109 F. 2d 579 (2nd Cir.), consd. [para. 32].

R. v. Kenning, [2008] EWCA Crim 1534, consd. [para. 35].

R. v. Dang, [2014] EWCA Crim 348, consd. [para. 37].

R. v. Jones, [2010] EWCA Crim 925, consd. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1) [para. 47]; sect. 464 [para. 49].

Counsel:

Kathleen Healey and Ruth McGuirl, for Her Majesty the Queen;

J. Randall Barrs, Q.C., and Patrick Ducharme, for Tan Tien Nguyen.

This appeal was heard on November 19, 2015, before MacPherson, Tulloch and Pardu, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Pardu, J.A., and was released on March 3, 2016.