Jan 29, 2016

Summary of R v Luu

R v Luu, 2015 SKCA 128 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Cocaine
Criminal Law – Controlled Drugs and Substances Act – Conspiracy to Traffic – Cocaine
Criminal Law – Evidence – Circumstantial Evidence

The appellant appealed his conviction after trial in Provincial Court on charges that he and another accused possessed cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. Other charges include: conspiring with persons to commit trafficking of cocaine contrary to s. 5(1) of the Act; possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Act, thereby committing an offence contrary to s. 465(1) of the Criminal Code; and possessing $5,000 knowing that it was obtained as a result of an indictable offence contrary to s. 354(1) and s. 355 of the Code. The charges arose after the police received a tip that a group of Asian males had come to Saskatoon to sell drugs. Two people (Ms. Ly and Mr. Ycson) travelled together and the accused travelled alone to Saskatoon, arriving on the same day. The accused rented a room at a hotel and he and the other two people stayed there. The police conducted surveillance of the room and the individuals in question. The accused was only seen by the police outside the hotel and once in a different location where he spoke to Ycson, whereas Ycson and Ly were both noted leaving the hotel and moving to different locations in the city. They were never seen with drugs, nor were they seen handing anything to anyone, but the police drug expert believed that their actions were consistent with delivery of drugs. After the individuals were arrested the police found about 7 grams of cocaine on Ycson’s person. The police searched the hotel room and found the accused’s identification and wallet and his bag containing $7,900 in cash packaged in various bundles. They also found packages of cocaine hidden in Ly’s suitcase. Yscon was charged separately, and the case against the accused and Ly included the testimony of the police officers as to what they had observed and what they had seized and of a police expert who testified that the behaviour of the accused and co-accused was consistent with drug delivery. The essential issues related to the accused were whether there was a conspiracy and whether he was a part of it. The trial judge followed the Carter analysis and concluded that the Crown had proven conspiracy with respect to Ly and Ycson and decided on a balance of probabilities that the accused was a member of the conspiracy because he arrived the same day as the others, rented the room in which the cocaine was found, and had been present in it because his identification was found therein, and the money in his bag was packaged in such a way that the expert concluded that it was consistent with drug money. The trial judge found the accused guilty on all three counts.
HELD: The appeal was dismissed. The court found that the trial judge had not erred and his verdict was one that a properly instructed jury could have reasonably rendered.