R. v. Jones Date:, 2013 BCPC 238

Citation: R. v. Jones Date: 20130903 2013 BCPC 0238 File No: 84988-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IAN KENNETH JONES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: K. MacWilliam Counsel for the Accused: D.F. Henderson Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 19, 2013 Date of Judgment: September 3, 2013

INTRODUCTION [ 1 ] The accused, Ian Kenneth Jones (“Mr. Jones”), faces charges that, on or about August 12, 2010, he unlawfully produced and possessed marijuana for the purpose of trafficking, contrary to subsections 7(1) and 5(2), respectively, of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19 (the “ CDSA ”). The Crown proceeds against him by indictment under Information 84988-1, sworn on November 9, 2010. The alleged offence date is August 12, 2010. [ 2 ] As was his right, Mr. Jones did not testify in his own defence.

He seeks an acquittal on the ground that the Crown has failed to discharge its burden to prove its case against him beyond a reasonable doubt on both counts. [ 3 ] Crown counsel, Ms. MacWilliam, readily acknowledges that the case against Mr. Jones is entirely circumstantial. I do not discern meaningful differences between her view, and that of defence counsel, Mr. Henderson, of the law that governs prosecutions based upon circumstantial evidence. Counsel do differ, however, as to what inferences can properly be drawn from the facts proven in this case. [ 4 ] Ms.

MacWilliam argues that inferences of guilt in respect of both counts are irresistible on the proven facts and that those proven facts do not admit rationally of any alternative and exculpatory inferences. Central to her argument is her contention that the evidence led at trial compels an inference that Mr. Jones was residing at 21150 – 123 rd Avenue, Maple Ridge, B.C. (the “Subject Residence”) on the offence date. In Ms. MacWilliam’s words: “The Crown’s position is that based on the constellation of facts before the court, there is only one rational inference to be drawn, and that is that Mr.

Jones was living in the residence in question at the time of the execution of the search warrant [on the offence date of August 12, 2010].” (Crown’s Closing Submissions, p. 1) [ 5 ] Ms. MacWilliam’s fallback argument, presented in the alternative, is that if Mr. Jones did not reside at the Subject Residence, he was at the very least a regular and frequent presence there, performing the daily watering and other tasks that the marijuana crop required be done in order to survive and, generally, giving the Subject Residence a lived-in appearance that would not provoke suspicion. [ 6 ] Mr.

Henderson argues, to the contrary, that the proven facts, such as they are, admit rationally of a competing and exculpatory inference that Mr. Jones did not reside at the Subject Residence on the offence date (or, indeed, for some time before that date) and that his minimal association with that residence at the material time is sufficient to raise a reasonable doubt regarding the allegations that he both produced the marijuana crop found there on August 12, 2010 and possessed it for the purpose of trafficking. [ 7 ] The competing inference urged upon the court on behalf of Mr.

Jones is based, in part, upon the prominence of the association of another person with the Subject Residence. The present prosecution in fact commenced against two accused: Mr. Jones and one Shawn Nelson Cronin (“Mr. Cronin”). Charges of production of marijuana and possession of the drug for the purpose of trafficking were laid against both Mr. Cronin and Mr. Jones in the same Information. However, the charges as against Mr. Cronin were stayed, given the excessive delay that preceded his trial in this matter. [ 8 ] The evidence of Mr.

Cronin’s engagement with the marijuana grow operation at issue in this case (a clone-growing operation) is direct and clear. The Crown itself characterises Mr. Cronin as the grow op’s “operating mind”. He was the registered owner of the Subject Residence. On the day of execution of the search warrant at, Mr. Cronin was seen coming to and going from the residence. He was arrested after leaving the house in his pickup truck with a load of clone plants in the truck’s box. Also in Mr.

Cronin’s possession at the time of his arrest were keys to the Subject Residence, an electronic opener for its garage door and a substantial quantity of cash. Beyond that, while it is plain that most of the documentary evidence (mail, &c.) that was seized from the house was in the name of Mr. Jones, some was in the name of Mr. Cronin. [ 9 ] The evidence of Mr. Jones’ engagement with the Subject Residence is far less direct and clear than that concerning Mr. Cronin. While Mr. Henderson acknowledges that the evidence establishes that Mr.

Jones did at one time reside there, he says that on the facts proven by the evidence tendered by the Crown it is open to me to infer, reasonably, that Mr.

Jones was not residing there on the offence date, that his association with the residence had largely ended some time before the offence date and that the subsisting connection he had with the Subject Residence was minimal and insufficient to support conviction on either charge. [ 10 ] This being a circumstantial case, the question I must ultimately answer is whether the facts proven by the Crown (based on evidence of each fact proven to the standard of a balance of probabilities), seen as a whole, cumulatively compel an inference of Mr.

Jones’ guilt of the two offences as the only reasonable inference to be drawn from those facts: see, for example, R. v. Butler , 2007 BCCA 526 at para. 13 and Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 2 nd . ed., (Markham: Lexis Nexis, 1999) at p. 41. MR. JONES: A RESIDENT OF THE SUBJECT RESIDENCE ON AUGUST 12, 2010? [ 11 ] As has been noted, a key element of the Crown’s case against Mr. Jones is its contention that Mr. Jones resided at the Subject Residence on the offence date. Much, if not most, of the rest of Ms. MacWilliam’s closing argument springs from this central contention.

She refers, for example, to “the smell of marijuana, the unlocked door leading into the basement [where the crop was located], the instruction sheets found in the grow area, the barricaded front door, etc.” as factors going to the knowledge and control regarding the crop that, as a resident, Mr. Jones must be taken to have had (Crown’s Closing Submissions, p. 1). [ 12 ] It should not be forgotten, however, that the question of where Mr. Jones resided on the offence date is but one fact (though an important one) amongst others from which the Crown seeks to prove its circumstantial case against him on both charges.

Where Mr. Jones resided on August 12, 2010, is not a fact that constitutes an essential element of either the production or the possession-for-the- purpose-of-trafficking charges that he faces. Rather, it is an especially important fact that, together with others (the Crown says),

compels an inference of guilt of those charges as the only rational inference that can be drawn from the proven facts. [ 13 ] I must, therefore, first consider whether the Crown has proven as a fact, on a balance of probabilities , that Mr. Jones resided at the Subject Residence on the offence date. Proof of that important fact would establish a particularly important element in the array of facts from which the Crown then argues inferences of guilt on both charges are the only inferences that can rationally be drawn.

The correlative proposition is that failure to prove that important fact would deprive the Crown of a particularly important element in the array of facts from which I am required to draw the relevant inferences. Arguably, it would deprive the Crown of such an important fact that what would remain in the array could be insufficient to support the irresistible inferences of Mr. Jones’ guilt of the charges that I have been asked to draw. [ 14 ] What evidence, then, links Mr. Jones to the Subject Residence and suggests that he was a resident there on August 12, 2010?

Documents Seized at the Subject Residence [ 15 ] The Crown places heavy reliance upon the documents seized at the Subject Residence to make its case for Mr. Jones being a resident there on the offence date of August 12, 2010. [ 16 ] Numerous documents of a personal nature belonging to Mr. Jones and showing 21150 – 123 rd Avenue, Maple Ridge, B.C. as his address were indeed found in and seized at the Subject Residence.

These included mail, income tax records, sensitive medical information and even an interim driver’s license issued to him on June 25, 2010. [ 17 ] The presence of these documents at the Subject Residence does constitutes some evidence that Mr. Jones lived there. To the extent that they were found at the house on the offence date of August 12, 2010, the presence of those documents is also, however, some evidence that, as of that date, Mr.

Jones considered the Subject Residence to be a place where important items of his could be delivered and kept. [ 18 ] The documents seized from the Subject Residence do not, however, uniformly point to Mr. Jones residing at the Subject Residence on the offence date of August 12, 2010. I note that I must be careful in my approach to the subject of what mail was opened and what was not because police witnesses testified that they opened a substantial quantity of unopened mail addressed to Mr. Jones during the course of their investigation.

The Crown evidence identifying what was already opened when police arrived, and what was opened by officers while carrying out their investigation, is murky. However, there was evidence sufficient to establish that some unopened mail addressed to Mr. Jones dating back to May and June, 2010 was located at the residence when the search warrant was executed. The presence of such unopened mail suggests something other than the continuous presence of its owner at the Subject Residence and could be viewed as evidence of either a former association with the house or of only widely spaced, periodic attendances on Mr.

Jones’ part at the Subject Residence from and after May/June, 2010 as distinct from his being a resident there up to and including the offence date of August 12, 2010. The Parked Car [ 19 ] A vehicle registered to Mr. Jones parked across the street from the Subject Residence was observed by police on July 28, 2010. The Crown argues that this “leads to an inference of control over the residence”. The presence of the vehicle certainly forges a link of sorts between Mr. Jones and the neighbourhood where the Subject Residence is located, on July 28, 2010.

But in my judgment this evidence is most noteworthy for its singularity and its detrimental significance for the Crown’s case. Evidence of a continuous or at least frequent presence of the vehicle at the residence during the time leading up to and including the offence date would be more consistent with the inference that the Crown invites the court to draw.

No such evidence was tendered by the Crown. [ 20 ] Police conducted a reasonably sophisticated investigation, including surveillance, of the Subject Residence commencing on July 26, 2010, and continuing over a number of days leading up to August 12, 2010, when the search warrant was ultimately executed.

The fact that all the Crown could proffer from its investigation with respect to a vehicle associated with the accused was evidence that on a single occasion, weeks before the offence date, that vehicle was noted in the vicinity of (as opposed to at) the Subject Residence is more suggestive of an infrequent pattern of attendances on the part of the vehicle’s owner to the area than it is of its owner residing there. The “Ian” Entry in Mr. Cronin’s Notebook [ 21 ] A notebook seized from Mr. Jones’ co-accused, Mr. Cronin, on August 12, 2010, contained several names with numbers written alongside them.

One of those names was “Ian”. Mr. Jones’ first name is “Ian”. The Crown acknowledges that this evidence affords, at best, a “tenuous” tie between Mr. Jones and the Subject Residence (and more particularly, the unlawful goings on there). I will not say that this evidence is of no probative value for present purposes, but its value in fortifying the Crown’s contention that Mr. Jones resided at the Subject Residence is, as the Crown admits, slight. Evidence Not Tendered [ 22 ] As was the case in R. v. Lee , [2011] B.C.J. No. 150 (Prov.

Ct.) , the Crown’s evidence in the case at bar is as remarkable for what it does not establish as it is for what it does establish. I have already made mention of the evidence of a single sighting of a vehicle associated with the accused in the neighbourhood of the Subject Residence over an extended period being, arguably, evidence that cuts against as opposed to supports the Crown’s contention that the accused lived at the Subject Residence. [ 23 ] Consistent with that, the Crown called no evidence to suggest that Mr.

Jones has ever been witnessed by anyone—a neighbour or an officer conducting surveillance, for example—at the Subject Residence. No witness testified to having seen him going to or coming from it. Not only was there no evidence of frequent observed attendances, there was no evidence of any attendances on his part at all. This was the state of the evidence, even though the expert opinion evidence tendered at trial confirmed that the marijuana clone crop there required daily tending. [ 24 ] The evidence of one police officer to the effect that the grounds of the Subject Residence were unkempt and overgrown with

weeds was also noteworthy in this connection. It militates against the Crown’s contention that Mr. Jones was a resident there fulfilling, among other functions, that of making the lands and premises appear lived in and therefore unlikely to provoke suspicion. [ 25 ] Mr. Henderson makes the point in his submissions that “... there were no keys found on [Mr. Jones’] person allowing him to control access to the residence” (Accused’s Closing Submissions, p. 4). He is right to place emphasis upon that gap in the Crown’s evidence. He is similarly right to note that there is no evidence of a tenancy agreement or of Mr.

Jones being a hydro subscriber at the Subject Residence. These are further examples of the kinds of touchstone evidence—absent from this case—which are frequently tendered in prosecutions where the Crown seeks to establish the kind of connection between an accused person and a place that is an important element in the array of evidence upon which inferences consistent with guilt of production and possession can ultimately be drawn. [ 26 ] Having regard to all of the foregoing I am unable to find that the Crown has established, on a balance of probabilities, that Mr.

Jones resided at the Subject Residence on the offence date of August 12, 2010. MR. JONES: A FREQUENT PRESENCE AT THE SUBJECT RESIDENCE? [ 27 ] As has been noted, the Crown contends in the alternative that if Mr. Jones did not reside at the Subject Residence as of the offence date, he was at least “responsible for caring for the plants and for providing the residence with the appearance that it was lived in” (Crown’s Closing Submissions, p. 2).

That caring, on the Crown’s expert evidence, required daily hand watering and, so, called for something approaching a daily presence on his part to perform it. [ 28 ] Virtually everything that I have said above that calls into question the proposition that Mr. Jones resided at the Subject Residence also calls into question the proposition that he was a frequent presence there on and around August 12, 2010. The evidence of his presence at that time is exceedingly thin. No sightings of him there at any time figured in the Crown evidence.

Neither was his vehicle ever sighted there; it was sighted across the street from the Subject Residence on one occasion by police, but only once and about two weeks before the offence date. [ 29 ] The presence of a quantity of mail dating back to May/June of 2010, addressed to Mr. Jones at the address for the Subject Residence but unopened, suggests that a period of time had passed since his last attendance there. Ms.

MacWilliam argues that “... the unopened mail, in isolation, can only go as far as to suggest that the accused had not been opening his mail at the time of the execution of the search warrant” (Crown’s Closing Sumbissions, p. 10). She goes on to state: “The further inference that the mail was not being opened by him because he was not residing there is an inference that is not supported by the rest of the evidence.

Alternative reasonable inferences for individual facts are not determinative, and the unopened mail needs to be considered in the broader context of the evidence as a whole.” [ 30 ] While it is possible that Mr. Jones simply stopped opening his mail in May/June of 2010 while still residing at the Subject Residence, there is no other evidence available within the “evidence as a whole” to support that rather surprising and counter-intuitive proposition.

But there is other evidence within the “evidence as a whole” to suggest that he was neither residing nor even attending the Subject Residence at or around the offence date of August 12, 2010. There is the evidence that his vehicle was only seen once in the area during the preceding weeks. There is the complete lack of any evidence of him being observed coming and going from the Subject Residence at any time. There is the evidence showing that by the time of execution of the search warrant the grounds around the residence had become unkempt and overgrown—the very appearance that, on the Crown’s theory, Mr.

Jones’ presence was mandated to prevent so as to ensure that the Subject Residence did not attract unwanted attention. [ 31 ] The defence contention that Mr. Jones was neither residing at, nor making regular and frequent visits to, the Subject Residence is not a proposition that floats adrift and untethered to evidence before the court. To the contrary, it stands together and resonates with some of the most compelling evidence that that the Crown has placed before the court. [ 32 ] For all of these reasons I am unable to find that the Crown has established, on a balance of probabilities, that Mr.

Jones was a meaningfully regular presence at the Subject Residence on the offence date. HOW LONG HAD THE MARIJUANA GROW OPERATION BEEN IN EXISTENCE? [ 33 ] The length of time that the marijuana grow operation had been in existence at the Subject Residence is a matter of some importance in the case at bar, given that the Crown has been unable to persuade me that Mr.

Jones was either a resident or a frequent presence there at or around the offence date of of August 12, 2010. [ 34 ] The question of the age of the crop is more complicated here than it is in other cases involving plants that are grown to maturity on site and whose stages of growth, together with other evidence, can provide information permitting the court to determine how long the operations have been in situ : see, for example R. v. Vu , [2012] B.C.J. No. 340 (Prov. Ct.) .

In the present case, the crop consisted of clone plants which are sold as such before they grow to maturity. [ 35 ] There is thus very little admissible evidence before the court to which recourse can be had for the purpose of pinpointing the time the operation commenced. Ms. MacWilliam argues that “the smell of marijuana leading up to the execution of the search warrant (which was detected as early as July 26) ... suggests that this grow operation had been going on for a significant period of time prior to the execution of the search warrant [on August 12, 2010]”.

First, there is no admissible evidence that the smell of marijuana was detected anywhere near the Subject Residence until July 27, 2010, when police began conducting surveillance of it. Second, and more importantly, there is nothing in the evidence to give me a reason to find that what the officer smelled on July 27 th originated with a long- established grow operation as distinct from a newly constituted one. [ 36 ] The same uncertainty applies to the fortification found within the Subject Residence.

It is a fair inference that the barricade that was built to fortify the front door was installed around the time the operation was set up but there is nothing to say how much earlier than July 27th (if any sooner) the operation (and hence the barricade) came into existence.

[37] With respect to the issue of the age of the grow operation at issue in this case, at best I am able to find that it was likely inexistence on July 27, 2010. It may have been in existence earlier than that but, because there is no evidence on the point, it profits noone for me to indulge in speculation about an earlier date. WHAT THE LAW REQUIRES BY WAY OF PROOF Production [38] The offence of production of controlled substances is addressed in s. 7 of the CDSA. Marijuana is one of the controlledsubstances embraced by that section.

That the plants seized from the Subject Residence were marijuana plants is admitted. [39] The word "produce" is a defined term in s. 2(1) of the CDSA. The relevant portion of the statutory definition reads as follows: "... cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwiseobtained." [40] The cases which have interpreted that language have concluded that "cultivation" of marijuana connotes the bestowal of labourand attention upon marijuana plants for the purpose of promoting their growth: see, for example, R. v.

Busby (1972), (YK CA), 7 C.C.C. (2d) 234 (Y.T.C.A.). [41] It is common ground that there is no direct, hands-on evidence of "production", by Mr. Jones, of the marijuana clone cropseized by police at the Subject Residence. Rather, the Crown invites the court to infer that Mr. Jones "produced" that marijuana from thecircumstantial and expert evidence that was adduced at trial.

Possession for the Purpose of Trafficking [42] Prosecutions under s. 5(2) of the CDSA for possession of controlled substances for the purposes of trafficking, includingmarijuana, require proof of "possession" in accordance with the definition of that term prescribed in s. 2(1) of the Act. That definition, inturn, incorporates by reference the definition found in s. 4(3) of the Criminal Code. [43] It is common ground that there is no evidence in the case at bar of personal possession or “manual handling”, by Mr. Jones, ofthe marijuana discovered on August 12, 2010 at the Subject Residence.

Rather, the Crown seeks conviction of him based uponconstructive possession of the several thousand marijuana clones seized there as contemplated by s. 4(3)(

a) of the Criminal Code. Thatenactment provides as follows: "[4]

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly i. has it in the actual possession or custody of another person, or ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person..." (emphasis added) [44] R. v. Fisher, 2005 BCCA 444 , [2005] B.C.J. No. 1955 (C.A.) was a prosecution in which the Crown sought to prove,inter alia, constructive possession by the accused of a narcotic.

As here, the Crown's case for constructive possession in Fisher wasbased on circumstantial evidence. [45] Smith J.A. (Rowles and Donald JJ.A., concurring) conducted a thorough survey of the modern authorities on point in Fisherand then offered this often-cited, clear and concise

summary of what the Crown must prove beyond a reasonable doubt in order to makeout a case against an accused of constructive possession (in that case of cocaine): "As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling.

Toestablish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of thepresence of the cocaine and that he had some measure of control over its location." (at para. 24, emphasis added) [46] Where an illicit substance is possessed by an accused in a quantity that demonstrably exceeds that which could be reasonablyrequired for personal use, his or her possession of that substance “for the purpose of trafficking” can be inferred: see, for example, R. v.Budd, [2008] B.C.J. No. 2793 (S.C.) at para. 89ff.

THE CIRCUMSTANTIAL EVIDENCE IS INSUFFICIENT TO SUPPORT CONVICTION Production [47] I have explained above that I cannot find, on a balance of probabilities, that Mr. Jones was a resident of the Subject Residenceon the offence date of August 12, 2010. I have explained that the evidence, taken as a whole and weighed according to the samestandard, is incapable of establishing that Mr. Jones was even a frequent presence at the Subject Residence on or around August 12,2010. [48] Against the background of those findings, a conviction for production simply cannot be entered.

Absent from the array of factsfrom which I am asked to infer guilt of the production offence is a factual finding that would place Mr. Jones in the Subject Residencewith the frequency and regularity necessary to enable him to participate in cultivating the marijuana crop there. The inference that Mr.Jones was a former resident of the Subject Residence whose attendances there after May/June of 2010 were either non-existent orinfrequent at best is a reasonable inference that can be taken from the proven facts, seen as a whole. That inference is incompatible andirreconcilable with the Crown’s theory that “Mr.

Jones was the person responsible for caring for the plants and for providing the

residence with the appearance it was lived in” (Crown’s Closing Submissions, p. 2), given the Crown’s expert evidence that the clonecrop at issue here required daily tending and that the grounds around the Subject Residence had been left to fall into disarray, unkemptand unmaintained. Possession for the Purpose of Trafficking [49] Having concluded that it is a reasonable inference that Mr.

Jones was not residing at the Subject Residence, that he had notdone so since May/June of 2010 and that he attended there very infrequently, if at all, since that date, I cannot conclude beyond areasonable doubt—employing the Fisher formulation—that he had the knowledge of the marijuana clone crop there on August 12, 2010,coupled with a measure of control over its location, that is necessary to fix him with constructive possession of that crop.

Recall that thetime the crop and associated infrastructure (like barricades and other grow operation paraphernalia) were put in place at the SubjectResidence is not proven. The first positive evidence before me of the existence of marijuana at the residence is the evidence of theofficer who detected the odour of marijuana outside it on July 27, 2010. The possibility that the grow operation was not in place the lasttime Mr.

Jones attended at the Subject Residence is a reasonable possibility that cannot be safely ruled out. [50] I cannot, in these circumstances, say that the only reasonable inference to be drawn from the facts is that Mr. Jones had thenecessary knowledge and control to put him in constructive possession of the marijuana clone crop at the Subject Residence. It followsthat an acquittal on the possession for the purposes of trafficking charge must also be entered.

COMMENTS ON CERTAIN CROWN AUTHORITIES [51] The disposition of this case is driven less by the law and more by the unique configuration of the evidence upon which theCrown relied. I shall therefore not devote a great deal of space at the conclusion of these reasons to an analysis of the Crown’sauthorities (all of which I have read and considered, together with those cited to me by the defence). I pause to say that it was not lost onme during the course of the proceedings that the prosecution was initially aimed more directly and surely at Mr.

Cronin—the “operatingmind” in the Crown’s opinion of the subject marijuana grow operation. Mr. Cronin succeeded in having all charges stayed against himon the ground that there had been a constitutionally intolerable delay in getting those charges to trial. Ms. MacWilliam would likelyagree that, on the merits, the Crown’s case against Mr. Jones was not as strong as it was against Mr. Cronin. I have no hesitation inacknowledging that she did the most she could with what she had to work with when seeking to fix liability upon Mr. Jones as an allegedlesser player in the grow operation that is at issue here. [52] Ms.

MacWilliam makes the point in argument that: “In many cases a person can be convicted simply by frequenting the residence either to tend to the care and maintenance of the plants, orto provide a veneer of normalcy to the residence in an effort to quell any suspicions that might arise from an unoccupied house in aresidential neighbourhood.” (Crown’s Closing Submissions, p. 6.) [53] She is undoubtedly correct in that assertion. The problem here, however, is that at the material time there is no evidence thatMr. Jones ever attended (much less “frequented”) the Subject Residence.

Moreover, during the time leading up to the date of executionof the search warrant, the “veneer of normalcy” to which she refers in general terms had, in relation to the Subject Residence at issue inthis case, substantially peeled away. It was by then, an unkempt property overgrown with uncut grass and weeds. These facts supportthe argument advanced by Mr. Henderson that it is a reasonable inference that Mr. Jones was a former resident of the Subject Residencewho had not been attending there at the material time. [54] R. v. Thaci (23 March 2012), Port Coquitlam Reg. No. 85845 (B.C. Prov.

Ct.) is an unreported decision and, of all those whichwere cited to me by the Crown, the most helpful to the prosecution in the case at bar. Thaci, too, was a circumstantial case involving amarijuana grow operation in which there was no evidence of attendances by the accused at the residence in question placed before thecourt but in which the circumstantial evidence nevertheless was considered sufficient by the trial judge to convict.

However, thecircumstantial evidence there was stronger than that in the present case and it led the court to conclude that the accused either resided atthe residence in question or that he had access to it and spent significant amounts of time there. [55] Documents loomed large in Thaci (as they do here); they included a B.C. Hydro bill addressed to the accused at the relevantaddress that showed him to be a paid up subscriber. An affidavit from the power authority identifyied him as the subscriber for thematerial time.

Beyond that, the condition of the house and grounds was immaculate, with the exterior landscaping appearing to be“carefully tended”. This evidence tied the accused in Thaci directly to the house in question at the material time in a way that theevidence is unable to do in the case at bar. [56] Other Crown cases, like R. v. Vo, [2009] B.C.J. No. 2707 (Prov. Ct.) and R. v.

Ngo, 2009 BCCA 301 , [2009] B.C.J.No. 1252 (C.A.), are similarly distinguishable. [57] As was the case in Thaci, the accused in Vo was proven by the Crown to be the hydro subscriber for the residence at issue inthat marijuana grow operation case and that he was making his payments. A vehicle registered to him was seen in the driveway on anumber of occasions by surveillance officers before the search warrant was executed and his fingerprint was found on a sheet of papercontaining instructions for the growing of marijuana. The evidence also established that “Mr.

Vo visited or went to the residence onseveral occasions at least [and] that he was there for more than just brief visits” (at para. 31). These factors tie the accused in Vo closelyto the residence and the grow operation in that case at the material time and in ways that the more skeletal evidence against Mr. Joneshere does not. [58] In Ngo, the trial judge (whose decision was upheld on appeal) found that the accused resided at the residence associated withthe grow operation in that case. He was, in fact, within that residence at the time the search warrant was executed.

A vehicle parked inthe driveway at that time was registered to Mr. Ngo, and clothing belonging to him and his wallet (containing all his identification) werefound in the residence. No factors similar to these, forging strong contemporaneous links between the accused and the place where thegrow operation was located at the time it was active, can be cited by the Crown as figuring in the evidence against Mr. Jones in the caseat bar.

DISPOSITION AND ORDER [ 59 ] It follows from all of the foregoing that I find Mr. Jones not guilty of the charge of production of marijuana (count 1) and the charge of possession of that substance for the purpose of trafficking (count 2) alleged against him under Information 84988-1. [ 60 ] Order accordingly. _____________________________ Thomas S. Woods, P.C.J.