R. v. Leech, 2013 BCSC 1156

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Leech, 2013 BCSC 1156 Date: 20130405 Docket: 59676-2 Registry: Chilliwack Regina v. Lance Gordon Leech Before: The Honourable Mr. Justice Joyce Oral Reasons for Judgment Counsel for the Crown: S.G. Price Counsel for the Accused: R.G. Debou Place and Dates of Trial: Chilliwack, B.C. March 25-27 and April 5, 2013 Place and Date of Judgment: Chilliwack, B.C. April 5, 2013 Introduction [ 1 ] On October 25, 2010, members of the Mission Detachment of the RCMP attended a residential property in Mission, British Columbia, owned by the accused, Mr.

Lance Gordon Leech, and executed a search warrant that had been granted earlier that day under s. 487 of the Canadian Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ] with respect to an allegation of theft of electricity. [ 2 ] When the police entered the basement of the residence in order to clear it, they discovered a marihuana grow operation. Eventually, with the assistance of a meter technician, the police also discovered at the exterior of the residence, a hydro meter that had been tampered with. [ 3 ] As a result of these events, Mr.

Leech is charged with possession of marihuana for the purpose of trafficking, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [C DSA ]; production of marihuana, contrary to s. 5(2) of the Act ; and theft of electricity, contrary to s. 326(1) (

a) of the Criminal Code . [ 4 ] Mr. Leech did not challenge the validity of the search warrant that was issued, however he asserted that the police went beyond the scope of what was authorized by the warrant when they entered the basement. He asserted that the search of the basement was unauthorized, unreasonable, and in breach of his rights under s. 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “ Charter ”].

He sought to have the evidence that was found in the basement excluded, pursuant to s. 44(2) of the Charter . [ 5 ] I did not conduct a separate voir dire with respect to this issue given the particular circumstances of this case, namely, there was no jury, the defence did not intend to lead any evidence with respect to its application, and both counsel were in agreement that a voir dire was not necessary because if the defence satisfied me at the end of the Crown's case that the evidence ought to be excluded under s. 24(2) of the Charter , I could simply disabuse my mind of it.

Without that evidence, the Crown's case would collapse. [ 6 ] At the close of the Crown's case, after hearing submissions, I held that the police had lawful authority under the warrant to enter the basement to search for the things set out in the warrant, and having done so and having found the marihuana grow operation in plain view, they had the authority by s. 489 of the Criminal Code to seize the items associated with the offence of possession of marihuana.

I therefore held that there had been no breach of s. 8 of the Charter . [ 7 ] The issues in this case are whether the Crown has proven beyond a reasonable doubt it was Mr. Leech who possessed the marihuana; that it was he who actively participated in its cultivation or aided and abetted in its cultivation; and that it was he who knowingly stole electricity from BC Hydro. [ 8 ] The Crown's case is based entirely on circumstantial evidence. The question, therefore, is whether that evidence allows only one reasonable inference, namely, that it is Mr. Leech who committed these offences. The Evidence

[ 9 ] The property in question is located at 9741 Doyle Street in a rural area of Mission, B.C. ("the Property") and consists of a ranch-style residence and two outbuildings. The residence itself is comprised of a main residence on ground level, a nanny suite on one side of the main residence, and a garage on the other side of the main residence. These three structures share a common roof, but there are breezeways between the main residence and the nanny suite, and between the main residence and the garage. There is a basement under the main residence only.

The basement is accessed by an exterior door from one of the breezeways. There is no internal door from the main residence to the basement. [ 10 ] Corporal Scott arrived at the property at about 1:20 p.m. on October 25, 2010 to conduct surveillance and await the delivery of the search warrant. Cpl. Scott did not see anyone on the property while he waited for the entry team. He remained positioned near a horse barn to the south of the residence. [ 11 ] The entry team arrived with the search warrant at 4:20 p.m., in vehicles with lights flashing and sirens wailing in bursts.

Constable Miller, who was the lead investigator on this file, testified that in accordance with the search warrant they were intending to search for a hydro by-pass and other evidence relating to the suspected theft of hydro.

The search warrant authorized the police to enter "the dwelling house and outbuildings" to search for and recover "hydro by-pass, hydro meters, electrical tools and equipment, documents relating to ownership and occupancy of 9741 Doyle Street, Mission, British Columbia". [ 12 ] Constable Miller knocked on the front door of the residence and announced that the police were there with a search warrant. There was no response. After calling out for about two minutes, Cst. Miller tried the door, found it was locked and gave instructions to breach the door with a battering ram.

When the door was opened, a dog came to the door and had to be subdued with pepper spray. The police entered into the main residence and went from room to room, clearing it to ensure that no persons were inside. No one was found in the main residence. [ 13 ] Constable Miller testified that when he entered the main residence he smelled the strong odour of growing marihuana. During this initial clearing of the main residence, while standing in the kitchen, Cst.

Miller could hear a humming noise coming from the basement. [ 14 ] The police went to the exterior door leading to the basement, knocked, announced their presence, and when there was no response breached that door and entered the basement. The police began to clear the basement to determine if any persons were located there before undertaking any detailed searches of the property.

As they did so, they found, in plain view, two rooms full of growing marihuana plants, high intensity lights with shrouds, ballasts, fans, and other equipment associated with a grow operation. [ 15 ] After the police had cleared and entered the main residence and basement, they knocked on the door of the nanny suite and a woman appeared at the door and identified herself to the police. The police then cleared the nanny suite. Nothing of interest was found in the nanny suite. [ 16 ] After the police had cleared the Property, Mr.

David Dewolde, a meter technician with BC Hydro who had been waiting nearby, came onto the property. With his assistance, the police located a hydro meter which was situated on the east exterior wall of the nanny suite portion of the residence. Mr. Dewolde removed the meter from its socket and the meter was seized. I will return to this piece of evidence later in these reasons. [ 17 ] After the meter had been seized, police began a thorough search of the basement and the seizure of evidence in the basement with respect to the marihuana operation they had found.

They also searched the main residence for items that might afford evidence of ownership and occupation of the property. There is no evidence the police did anything other than a walk-through of the nanny suite. The marijuana grow operation [ 18 ] There was no evidence that anyone had been living in the basement. It was completely taken over for use as a grow operation. As I have already mentioned, the marihuana grow operation was divided into two rooms and took up essentially the whole of the basement.

In one room, there were 326 plants in the vegetative stage approximately 12 inches in height with a small amount of bud. In the other room, there were 340 marihuana plants also about 12 inches in height with some bud showing. [ 19 ] Corporal Scott testified that based on the photographs that were taken of the plants he thought the plants in one of the rooms might be a few weeks older than those in the other. However, in the expert report relied on by the Crown to establish that possession was for the purpose of trafficking, Cpl.

Scott notes the plants in both rooms appear about six weeks old and about four to six weeks from being ready for harvest. [ 20 ] Corporal Scott took two samples from the plants in each of the two grow rooms. These samples were sent to the Health Canada Laboratory for analysis and were found to contain cannabis (marihuana). [ 21 ] The marihuana grow operation used a total of 28 1,000-watt high intensity light bulbs to provide the artificial light for growth. The lights were surrounded by aluminum shrouds and there were the usual electrical ballasts that are associated with an interior marihuana grow operation.

There were also charcoal filter units and fans installed as part of the operation. None of the witnesses were able to say precisely how the plants were watered, but no watering cans were found. Description of the main floor and the evidence seized [ 22 ] The main floor of the residence was comprised of a foyer or lobby, kitchen, dining room, living room, another living room or den, master bedroom with walk-in closet and en suite bathroom, a second bedroom, laundry room, workout room, two other bathrooms and another room that was described by Cst. Miller as a spare room. Cst.

Miller testified that the residence appeared occupied. There was furniture in the house and food in the refrigerator. There was men's and women's clothing in the residence. In addition to the dog that came to the door when the police first entered, the police found a cat sitting on the bed in the master bedroom. The photographs of the

residence taken by Cst. Miller certainly appear to show a home that is lived in. [ 23 ] The police seized a number of documents from the main residence.

From the kitchen counter they seized the following: • A document from Nissan Canada Finance dated August 18, 2010 addressed to Lance Leech at the address of the Property. • A 2010 property tax notice in the name of Lance Leech relating to the Property. • A letter dated July 22, 2010 addressed to Lance Leech at the address of the Property with an attached insurance policy for the property. • A BC Hydro invoice dated October 18, 2010 addressed to Lance Leech at the address of the Property. • An invoice regarding MSP dated October 6, 2010 addressed to Lance Leech at the address of the Property. • A confirmation dated July 12, 2010 for a trip to Las Vegas from September 24 to 27, 2010 for Lance Leech and Megan Weisgarber. • An invoice from Terasen Gas dated October 18, 2010 addressed to Lance Leech at the address of the Property. • A document concerning renewal of a second mortgage on the property dated September 20, 2010 and addressed to Lance Leech. • A Shaw Cable bill dated October 12, 2010 addressed to Lance Leech at the address of the Property. • A 2010 property assessment notice for the Property addressed to Lance Leech. • A property tax reminder notice dated July 23, 2010 addressed to Lance Leech at the address of the Property. [ 24 ] The police also found photographs of Mr.

Leech with Megan Weisgarber in the living room and in the spare room. They found a boarding pass for each of Mr. Lance Leech and Megan Weisgarber dated September 27 in the master bedroom. They found a birthday card addressed to Lance in the dining room. They found a box of business cards in the name of Lance Leech for a business called "Shuswap Villas" with an address in Sicamous, British Columbia, in the dining room.

And finally, they found a passport in the name of Lance Leech with an expiration date of March 15, 2011 in the master bedroom closet and a passport in the name of Megan Weisgarber with the same expiration date, also in the master bedroom closet. [ 25 ] In addition to the foregoing documents, a title search print dated October 23, 2010 was entered in evidence by the defence during the cross-examination of Cpl.

Scott that indicates that Lance Leech was the registered owner of the property since the year 2006. [ 26 ] The police found no evidence in the main residence relating to marihuana or the cultivation of marihuana. They did not find any keys that would unlock the door to the basement. It is not known whether the key or the basement door would also unlock the front door of the residence. [ 27 ] At this point, I return to the evidence relating to the hydro meter. [ 28 ] Mr.

Dewolde testified that the government seal on the meter was missing which would allow a person to remove the glass cover from the meter from time to time and access the dials that register the amount of electricity that has flowed through it. Mr. Dewolde testified that it appeared to him that the dials had been pampered with. Mr. Dewolde was able to trace the wiring from the meter to the electrical panel in the basement and confirmed that there was no hydro by-pass. The electricity that powered the electrical equipment in the basement flowed through, not around, the meter. [ 29 ] Mr.

Dewolde testified that there are a number of ways in which a person can create false meter readings that do not reflect the actual amount of electricity that has flowed through a hydro meter, even though there is no by-pass. One way is to remove the glass cover and turn back the dials. Another is by swapping out the meter for a different meter from time to time so that some of the electricity is recorded on a different meter, and thirdly, in the case of this meter, it would be possible to remove it from its socket and reinsert it backwards to prevent the recording of electricity.

The Law [ 30 ] I think it convenient first to deal with the law with respect to the charge of possession of marihuana for the purpose of trafficking. [ 31 ] The defence does not challenge the expert evidence that establishes that whoever possessed the marihuana did so for the purpose of trafficking. The focus is on possession. [ 32 ]

Section 2 of the CDSA adopts the definition of possession in subsection 4(3) of the Criminal Code : 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; and

(

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [33] Possession may be actual, constructive, or joint. In the present case we are concerned with constructive possession unders. 4(3)(b). In order to prove possession, the Crown must prove that the accused had knowledge of the prohibited substance and that hehad the ability to exercise some measure of control over it. [34] With regard to the element of control, in R. v. Wu, 2010 BCCA 589 Mr.

Justice Frankel said at para. 20: [20] The law with respect to control in the context of constructive possession is well known. What the Crown must prove is that anaccused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown toprove that such power was in fact exercised: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at 15 -17, 137, 138; R. v. Webster, 2008BCCA 458, 238 C.C.C. (3d) 270 at paras. 42 - 44. [35] The gravamen of the offence of production of marihuana is active participation in the growth of prohibited plants.

However, aperson may be found guilty of production either as a principal or as a party who aids or abets the principal. In a marihuana growoperation case, an accused may be found to have aided or abetted in the production of marihuana by maintaining the environment inwhich the marihuana is produced with the purpose or intent to assist in the crime (see R. v. Ngo, 2009 BCCA 301 at para. 52). [36] With regard to the charge of theft of electricity, s. 326(1)(

a) of the Criminal Code provides: 326.

(1) Every one commits theft who fraudulently, maliciously, or without colour of right, (

a) abstracts, consumes or uses electricity or gas or causes it to be wasted or diverted. ... [is guilty of a criminal offence.] [37] In R. v. Brais, (BC CA), [1972] 5 W.W.R. 671 (B.C.C.A.) at para. 17 the Court held that the word"fraudulently" as used in the

section "means that the obtaining of a telecommunication service must be intentional and deliberate, that isto say, without mistake, and with knowledge that the service is not the accused's to obtain in the way it is obtained". [38] As the Crown's case is circumstantial, the test to be applied is as stated in R. v.

Cooper (1977), (SCC), 34C.C.C. (2d) 18 (S.C.C.): “before basing a verdict of guilty on circumstantial evidence [the ‘trier of fact’] must be satisfied beyond areasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.” [39] However, in approaching this task, the Court is to bring "a measure of realism" (see R. v. Bauer, 2003 BCCA 138 at para. 21).It must also be remembered that the criminal standard of proof beyond a reasonable doubt does not mean proof to a certainty.

Analysis [40] Defence counsel provided me with a number of cases dealing with possession of marihuana and production of marihuana. I donot intend to refer to all of them. They are, after all, just examples of the application of the basic principles that I have just outlined to theparticular facts of the case being considered. [41] I will, however, refer to some of them in my analysis of the issues. Possession [42] The evidence clearly establishes that Mr. Leech was at all material times the registered owner of the premises where themarihuana operation was located in the basement of this home.

That is not disputed. In my view, that fact is sufficient to support thefinding that Mr. Leech had the requisite measure of control over the marihuana grow operation if he knew of it. Regardless of whetherthe grow operation was that of Mr. Leech himself or was actually operated by another person, whether Megan Weisgarber whosepassport and photographs were also found in the residence, or Rene Weisgarber, who was the person found in the nanny suite, or anyother person. Mr.

Leech, as the registered owner of the property, had the right to grant or withhold his consent to the grow operation.There is nothing to suggest that Mr. Leech ever granted a lease of the property or did anything to diminish his right to control what tookplace on the property. [43] This is not a case like R. v. Bailey, 1999 BCPC 36 , where the accused had been offered a place to sleep in a house inwhich the owner subsequently set up a marihuana grow operation. The Court there found that while Mr. Bailey clearly had knowledge,he lacked the requisite control. The Court found that he was not an actual tenant.

He had no right to say what happened on the premises.The Court there described him as "essentially a squatter with permission". [44] The present case is also distinguishable from R. v. Chambers, 2004 BCSC 1139 [Chambers]. In Chambers two individuals,Chambers and Madison, were charged with production of marihuana and possession of marihuana for the purpose of trafficking when thepolice located a large scale grow operation in the basement of a residence. Chambers was in the residence at the time of the search, butthere was no evidence to link Chambers to the grow operation in the basement.

Chambers was not on the lease and there was insufficientevidence to find that he was an occupant of the house as distinct from a visitor or a guest. The evidence was insufficient to prove control.In addition, there was no evidence that Chambers was ever in the basement, there was no odour of marihuana upstairs, and the itemsfound upstairs including keys relating to the grow operation could not be linked to Mr. Chambers. [45] In regard to Madison, the Court said at paras. 42 and 43:

[42] With respect to Mr. Madison, there is evidence to support an inference that Mr. Madison was in control of the premises. Therewas mail sent to him at that address, personal cheques showing that as his address, the Fido cell phone bill and the B.C. Hydro bill in hisname for that address.

There was, however, no evidence that he had signed the lease, no evidence that he had paid rent with respect tothat property, and no evidence that he had, in fact, resided there. [43] On all of the evidence, I find that I cannot conclude beyond a reasonable doubt that he had control of the premises, and I find, inaddition, that the Crown has not established knowledge of the presence of the grow operation in the house by Mr. Madison. [46] Likewise, the circumstances in R. v. Chiem, [2002] B.C.J. No. 3011 (P.C.), were very different.

In that case, the accused wasfound in a bed in one of three upstairs bedrooms when the police executed a search warrant and found a marihuana grow operation in alocked basement. The Court found that although the accused was sometimes at the residence, he was not a tenant. The evidence did notpermit an inference of control. [47] Defence also referred to the decision in R. v. Egresits, 2002 BCCA 163 , [2002] B.C.J. No. 483 (C.A.) [Egresits]. Inthat case, during the course of an investigation of a break and enter, the police found a marihuana grow operation in the basement of theresidence.

The basement was separated from the upstairs of the house with its own entrance and a different key. The circumstantialevidence upon which the trial judge founded his inference of guilt consisted of an undated envelope from a financial institutionaddressed to the accused at the house; evidence that he had keys to the house and sometimes stayed there when he was working in town;and a document found at the house containing the results of a 1994 lumber grading examination in his name.

There were three otherpersons who were also connected to the house in one way or another. [48] In setting aside the conviction the Court of Appeal said at paras. 7 to 9: [7] In my view the trial judge did not turn his mind sufficiently to the evidence that tied Mrs. Egresits, John Fox, and Alex Egresitsto the house.

From four potential suspects, the investigating officer appears to have chosen the appellant because his mother called himto attend at the house when the police were called on the neighbour's complaint about the break and enter in progress, and perhapsinfluenced by what he called a "hint" that the appellant was growing the marihuana for a friend made at the police detachment after theappellant was detained. [8] The trial judge commented on the lack of a full investigation of this offence, but concluded that it would be pure speculation asto what such an investigation might have turned up.

I do not agree with his implicit suggestion that it would be pure speculation tosuggest someone else might have been responsible for the grow operation. While Mr. Egresits might be the most likely perpetrator, thecircumstantial evidence linking him to the grow operation is not sufficiently greater than that linking his mother, his brother, or Mr. Foxto exclude them from the realm of reasonably possible perpetrators of the production offence.

It may well be that a more thoroughinvestigation would have uncovered sufficient evidence to exclude the others and to spin a sufficient web to permit the inference of theappellant's guilt, but that is to speculate. [9] In my view it cannot be said that the only reasonable inference from the circumstantial evidence before the trial judge is the guiltof the appellant.

Although the Crown would have that evidence buttressed by the evidence of the appellant's statement, I cannot find in itthe probative value sufficient for that purpose. [Emphasis added.] [49] In my view the circumstances in Egresits with regard to the element of control are very different from those in the present case. [50] In R. v. Nguyen, 2001 BCPC 461 , [2001] B.C.J. No. 3009 (P.C.) the police found a grow operation in the basement ofa house occupied by probably three adults.

The evidence of the accused was that he sometimes paid the rent, as did others, and the BCHydro bill in his name and other documents in his name were found at the house. [51] The Court held, at para. 4, that the "payment of rent on occasion, residence in the house and the apparent obtaining of a BCHydro account for the house do not add up to control over everything that is located in the house where other adults reside in the house,as well". [52] In another case referred to by the defence, R. v. Silver, [2005] B.C.J.

No. 2578 (S.C.), the circumstantial evidence tending tolink the accused to a marihuana grow operation consisted of the following: the hydro account in the name of Daniel Silver; threedocuments with Mr. Silver's name and a Surrey address, not the property in question found at the property; a single fingerprint was foundon a shroud in one of the grow rooms. However, Mr. Silver was never seen at the property and was not there when the search wasexecuted. The evidence was not sufficient to prove knowledge or control beyond a reasonable doubt. [53] In R. v. Abdel-Malek, [1997] B.C.J.

No. 999 (C.A.), the appellant was convicted of cultivation of marihuana and possession forthe purpose of trafficking on the basis that the trial judge found him to be one of two tenants of a house in which a marihuana growoperation was being conducted. [54] The Court of Appeal held that the trial judge had erred in that he did not "disentangle the issue of knowledge from control".

Atparas. 10 and 11, Madam Justice Huddart said this: [10] There was evidence to support the trial judge's finding that the appellant was one of the two tenants of a house in which asignificant marijuana grow operation was taking place, that he signed the lease and made at least one rental payment. There was evidencethat he had accepted responsibility for the hydro supply to the house. This is sufficient evidence to support an inference that he had therequisite measure of control over the marijuana grow operation, if he knew of it.

Control for the purpose of constructive possession doesnot require that the accused did in fact exercise control over the object in question. As the trial judge recognized, it is enough that theappellant had the right to grant or withhold his consent to the grow operation. As the co-tenant he had the right to forbid illegal behaviourin premises for which he was responsible.

[11] The more difficult issue is whether the inference of knowledge was reasonably drawn by the trial judge on all the evidence. [Emphasis added.] [55] The Court concluded that there was no evidence whatsoever connecting the appellant physically to the premises following thesigning of the lease.

There was no evidence he was ever in the house let alone the basement. [56] Turning to the present case, the defence submits that the fatal flaw in the Crown's case is that the grow operation was containedin a separate basement with only one entry from the outside through a locked door and that no key to that door was ever found. Thedefence argues there is no evidence that Mr. Leech ever had a key and no direct evidence that Mr. Leech ever was in the basement.Nothing was found in the upstairs level that connected it to the grow operation in the basement. There was no evidence that Mr.

Leechwas seen by anyone on the property. He was not present when the search warrant was executed. The defence argues that the evidencefalls short of proving either knowledge or control. [57] Mr. Leech, the owner of the property, had the right to control what took place on the property, including in the basement. As theowner, he had the ability to control who used the basement and for what purpose. He had the ability to control whether it was locked andwho had the key for the lock as long as he was aware of what was happening.

He would have the requisite measure of control over thegrow operation if he was aware that it existed. Therefore, in my opinion, it is knowledge that is the key issue in this case. [58] I need to consider, therefore, whether the circumstantial evidence tends to physically connect Mr. Leech with the residence atthe relevant time and whether that evidence can lead to only one reasonable inference, namely, that Mr. Leech had knowledge of thegrow operation. [59] The Crown relies on the following evidence to make that connection.

First, at the time of the search the main residence had allof the indicia of occupancy: furniture and bedding; food in the refrigerator; men's and women's clothing hanging in the closet; toiletries;hairbrushes and a hair dryer in the bathroom. [60] There was a dog and a cat inside the residence. [61] There were photographs of Mr. Leech and Megan Weisgarber in the living room and spare room. There was a birthday cardaddressed to “Lance”. [62] In the master bedroom closet the police located the passport of Mr. Leech and Megan Weisgarber.

In the kitchen they located aflight confirmation for a trip to Las Vegas for Mr. Leech and Megan Weisgarber leaving on September 24, 2010 and returning toBellingham on September 27, 2010. In the master bedroom were found boarding passes for the return flight. This evidence indicates thatMr. Leech must have been in actual possession of his passport as late as September 27, 2010, and left it in the residence sometime afterreturning from Las Vegas less than a month before the grow operation was discovered. [63] The documents found in the residence addressed to Mr.

Leech at the Doyle Street property were not in unopened envelopes.They consisted of bills and other documents that were relatively recent, including a BC Hydro bill in Mr. Leech's name with a billingdate of October 18, 2010, an MSP invoice with the date of October 6, and a Terasen gas bill with the date of October 18, and a Shaw billdated October 12, 2010. These accounts were all current. [64] This evidence when considered collectively satisfies me beyond a reasonable doubt that Mr. Leech was residing in the propertyduring the period when the grow operation was active.

The evidence in the report of the expert witness was that the plants were about sixweeks old which would mean that the grow operation was installed in approximately the middle of September 2010 or earlier. I amsatisfied that Mr. Leech was in residence in late September and in October. [65] Defence points to a box of business cards for Mr. Leech that identify him as a project manager for a business in Sicamous andsuggests that indicates that he may have been absent from the property working in Sicamous while without his knowledge someone elsehad installed the grow operation.

The undated business cards are not sufficient, in my view, of the body of circumstantial evidence toenable me reasonably to draw such an inference. [66] The odour of growing marihuana would have been detectable by persons occupying the main floor of the residence. The soundand the vibration of the fans and other electrical equipment in the basement were thoroughly noticeable to Cst. Miller when he stood inthe kitchen of the residence.

The grow operation would have required frequent attendance, even if it was not hand-watered, which wouldhave meant persons going into and out of the basement on a regular basis. [67] On the basis of the circumstantial evidence, I am satisfied beyond a reasonable doubt that Mr. Leech had both knowledge andcontrol of the grow operation. In my view, this is a case in which what was said in R. v. Jenkins (1908), 14. C.C.C. 221, (BC SC), 14 B.C.R. 61 as adopted by Mr. Justice Hall in R. v. Bauer, 2003 BCCA 138 , [2003] B.C.J.

No. 505 (C.A.), atpara. 22, is apposite: [22] It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence havingenveloped a man in a strong and cogent net-work of inculpatory facts, that a man is bound to make some explanation or standcondemned. Production [68] As I observed earlier, a person may be guilty of production of marihuana as a principal if he is actually engaged actively in thecultivation of the plants or as a party by aiding or abetting in the commission of the offence. There is no direct evidence that Mr.

Leechactually installed the equipment, planted the marihuana plants, or tended to them by watering or fertilizing them. I am satisfied, however,that he knowingly provided the facilities for the unlawful production of marihuana in his basement and that he is guilty of production of

marihuana as a party by aiding in the commission of the offence. Theft of electricity [ 69 ] Turning to the charge of theft of electricity, in this case there was no hydro by-pass by which the electricity circumvented the hydro meter. The theory of the Crown is that Mr. Leech stole electricity by removing the seal, removing the glass cover from time to time, and turning back the dials on the meter. [ 70 ] The Crown introduced without objection from defence a report of an expert in the calculation of the diversion of electricity and loss to BC Hydro with respect to this matter.

The report calculated a loss based on a timeframe of 565 days prior to October 25, 2010. This timeframe was said to be based on discussions with police. In my view, there is no evidence to support the calculation of this timeframe. There was evidence that the grow operation in the basement was about six weeks old, but no evidence of any earlier grow operation. I am not satisfied that the Crown has proven the quantum of loss alleged. [ 71 ] However, I am satisfied that power was consumed at the property that was not recorded by the meter because the meter was tampered with.

Between September 17, 2010 and September 18, 2010, BC Hydro employees attached a device to the power line that led to the property and recorded electrical loads once every minute. Those readings indicated average consumption of 37.5 kilowatt hours per day. The meter readings for the 62-day period between August 17, 2010 and October 18, 2010 indicated an average consumption of 16.85 kilowatt hours per day only. [ 72 ] Theft was occurring, but the issue is whether it was Mr. Leech who fraudulently consumed the electricity. The hydro account was in Mr.

Leech's name and I have found that he had knowledge and control of the grow operation itself and was a party to production of marihuana, but I cannot be sure that it was he who actually set up or ran the grow operation. I am not sure that Mr. Leech knew that the meter was being tampered with. I must acquit Mr. Leech on Count 3. [ 73 ] I find Mr. Leech guilty on Counts 1 and 2 and not guilty on Count 3 of the Indictment. “B.M. Joyce J.”