R. v. Qiang, 2013 BCSC 1597

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Qiang, 2013 BCSC 1597 Date: 20130814 Docket: 31230-2 Registry: Prince George Regina v. Ye Zhi Qiang, Khue Ba Vu and Bing Lung Wong Before: The Honourable Madam Justice Gray Oral Reasons for Judgment on No-Evidence Motion re Accused Ye Zhi Qiang and Khue Ba Vu Counsel for Crown: E. Laurie C. Benton Counsel for Accused Ye Zhi Qiang: J. Duncan Counsel for Accused Khue Ba Vu: B. Levine Place and Date of Trial/Hearing: Prince George, B.C. June 17 - 21, 2013 and August 13 and 14, 2013 Place and Date of Judgment: Prince George, B.C.

August 14, 2013 [ 1 ] THE COURT: Messrs. Ye and Vu are charged with production of marihuana and possession of marihuana for the purpose of trafficking under ss. 7(1) and 5(2) respectively of the Controlled Drugs and Substances Act . [ 2 ] After five days of trial, without a jury, the Crown closed its case, and both Messrs. Ye and Vu brought a no-evidence motion. These are my reasons for judgment on that application. [ 3 ] The defence admitted that there was a significant marihuana-growing operation in a rural location outside of Prince George near Eaglet Lake.

The growing operation (which I will refer to as the "Grow-Op") had 22 greenhouses and over 17,000 plants on May 27, 2010. The Crown's expert estimated the value of the plants at $6 million to $9 million. The real questions for trial are whether Messrs.

Ye and Vu were in possession of the Grow-Op, and whether they either produced the marihuana themselves, or aided and abetted the production of the marihuana. [ 4 ] To establish possession for the purpose of trafficking, the Crown must establish that the accused had both knowledge and control of the marihuana. [ 5 ] The Crown's case consists entirely of circumstantial evidence. In other words, there were no witnesses who claim to have seen one or both of the accused either in possession of the marihuana or doing any act which would assist in the production of the marihuana.

The accused were found on the site of the Grow-Op at around 9 a.m. on May 27, 2010, when the police were executing a search warrant, and the accused were arrested at that time. [ 6 ] The Crown relies on the presence of the accused at the Grow-Op in the entire context as establishing that the accused were in possession of the Grow-Op. [ 7 ] The first question is what test the court must apply to the no-evidence motion. Counsel agree that the court must apply the test in R. v. Arcuri , 2001 SCC 54 .

That case considered the test to be applied by a preliminary inquiry judge, but that test is the same as that asked by a trial judge considering a directed verdict where there is a jury, and the same as that asked by a trial judge considering a no- evidence motion when the trial proceeded by judge alone. The test is "whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty." [ 8 ] Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward.

If there is direct evidence as to every element of the offence charged, the no-evidence motion must fail because the jury could accept the direct evidence and find the accused guilty. [ 9 ] Application of the test is more difficult in a case turning on circumstantial evidence. [ 10 ] Chief Justice McLachlin wrote as follows in R. v. Arcuri at paragraph 23 :

23 The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence . . . at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence . . . at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed , could reasonably support an inference of guilt. [ 11 ] There are three issues I wish to address before describing the relevant evidence. [ 12 ] The first issue is what use I can make of information given by an unnamed informant to the police. The investigation which led to the search warrant and to the arrest of the accused began with a tip from an unnamed informant.

Constable Hebert, who was the lead investigator in the case, testified that he was advised that an anonymous complainant reported the following:

a) He had come across a large-scale grow operation in a rural area;

b) He was an avid hunter and guide and he was out exploring;

c) He travelled down a road which he had travelled previously, but he was not sure when was the most recent time he had done so;

d) He came across what he thought was strange activity. There was a new chain across the road and activity and large greenhouses;

e) He could see inside the greenhouses and recognized marihuana plants;

f) On exploring the property further, he came across two individuals, one carrying a handgun;

g) In fear for his life, he turned around on his quad and got out as quickly as possible; and

h) The area was very remote and there were no other buildings in the area. [ 13 ] Essentially, defence counsel wish to refer to this evidence as showing that hunters and guides, or at least one hunter and guide, being the anonymous informant, explored in this area and came upon the Grow-Op.

The defence wishes to argue that there is a rational explanation for the presence of the accused at the Grow-Op other than guilt, being that they might be hunters or guides exploring the area. [ 14 ] The position of the Crown is that what the anonymous informant reported is hearsay and the court cannot consider it for the truth of the contents.

The position of the Crown is that the hearsay was provided as narrative for why the police took the steps they did which led to the search warrant. [ 15 ] The position of the defence is that they should be able to rely on the hearsay for the truth, including the truth of the fact that a hunter and guide was in the area more than once and that one time he came upon the Grow-Op when he was out exploring. [ 16 ] The position of the defence is that the evidence is both necessary and reliable.

The defence argued that it is necessary because the informant was anonymous and therefore cannot be found, and that it is reliable because the police relied on it in applying for the search warrant. [ 17 ] The Crown argued that the evidence was not necessary, because if the area were used by people for exploring, other people could be found to give such testimony, and that the evidence was not reliable, because the police had no opportunity to test the truthfulness of anything other than the observation that there was a grow-op in the area. [ 18 ] In my opinion, for the purposes both of the no-evidence application and of trial, I can consider the hearsay from the anonymous informant for its truth. [ 19 ] The evidence is necessary in the sense that the informant was anonymous and therefore none of the lawyers could have found the informant to testify at trial.

While there might be other people who have explored in the area of the Grow-Op, it might be difficult to locate them. There may not be anyone else who explored in the area of the Grow-Op, but the fact that there was even one person who had done so is potentially relevant to determining the significance of the presence of the accused at the Grow-Op.

The statement of the informant was confirmed in part by the police observations about the existence of the Grow-Op. [ 20 ] While people unquestionably lie to the police, it is difficult to imagine why the informant would have fabricated the story about how he came to see the Grow-Op.

It is possible that the informant was involved in the Grow-Op and then decided to report it for reasons like revenge on the owner and so made up the story about how he came upon the Grow-Op, but that is unlikely. [ 21 ] In all the circumstances, in my view, the hearsay is sufficiently reliable to be admissible for the truth of the facts, including the fact that at least one hunter and guide came upon the Grow-Op when exploring in the area on a quad and had been in the area at least twice. [ 22 ] The next preliminary question is what approach I must take to the evidence of Constable Merriman about the colour of the

jacket worn by a man he saw at the Grow-Op. [23] At the time he made the observation, being around 8 a.m. on May 27, 2010, Constable Merriman was in touch by radio withother officers including offices in a central radio office. It appears that the radio transmissions were not recorded by audio recording.Officers in the central radio office made written notes or computer-typed notes at the time that the radio transmissions were made, andthe notes purport to record who spoke, who that person was speaking to, and a

summary of what the speaker said. I will refer to thesenotes as the "Radio Log." [24] There were a number of places in the evidence where an officer testified that the Radio Log was incorrect, particularly inrecording who was the speaker and who the speech was directed to, but also in summarizing what was said. [25] The Radio Log records that Constable Merriman reported by radio around 8 a.m. that he saw a man in a green jacket. ConstableMerriman testified at trial that when he saw the jacket, he thought it was green-blue, but the sun was out and the jacket was in and out ofthe light.

He testified that he said the jacket was green on his radio transmission, but he remembered having an internal debate about thecolour and thought that it was more blue-green, and with the pressure of making a quick radio report, he went with green. [26] Constable Merriman testified that later on May 27, 2010 he saw the two accused in custody and saw that Mr. Vu was wearing ablue jacket, and Constable Merriman wrote in his notes that the man was wearing a blue jacket.

Constable Merriman testified that afterseeing the accused, he concluded that the colour was better described as blue and that is why he wrote blue in his notes. [27] The Crown argued that for the purposes of the no-evidence motion, the court must proceed on the basis that ConstableMerriman's evidence could be believed and his evidence accepted as being that he thought the jacket was green-blue when he saw it buthad an internal debate about the colour, that his radio report of the jacket being green was an oversimplification, and that when he sawthe accused in constant light, he considered the colour and decided it was blue. [28] The defence argue that Constable Merriman resiled in his evidence and admitted that he had changed his mind about the colourafter seeing the accused under arrest, and that the jacket that Constable Merriman saw at 8 a.m. was green and was not the jacket that theaccused Mr.

Vu was wearing when he was arrested. [29] Constable Merriman's evidence about the colour of the jacket is eyewitness evidence. In my view, that is the type of evidencewhich the court is not entitled to weigh on a no-evidence motion. The court must assume that the jury could believe Constable Merriman.In this case, in my view, that means assuming that I or a jury might accept the

interpretation of Constable Merriman's evidence suggestedby the Crown. [30] The third preliminary issue I wish to address goes to the nature of the court's approach on this no-evidence motion. In relying oncircumstantial evidence, the Crown must establish beyond a reasonable doubt that the guilt of the accused is the only rational inferenceto be drawn from the circumstantial evidence. That is discussed in R. v. Vu (T.T.), 2004 BCCA 381, at paragraph 31, and in R. v.

Cooper, (SCC), [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18. [31] The Crown argued that on the no-evidence motion, the court should consider whether a jury could draw the inference from allthe circumstances that the two accused were on the Grow-Op site because they were involved with the Grow-Op operation. [32] In my view, expressing it that way puts too low a burden on the Crown. In my view, the court must consider whether a jurycould conclude that the only rational inference from all the circumstances is that the accused were involved with the Grow-Op.

In myview, that is what Chief Justice McLachlin meant in the last sentence that I quoted from R. v.

Arcuri, which was that "the judge only askswhether the evidence, if believed, could reasonably support an inference of guilt." [33] The evidence could not reasonably support an inference of guilt unless guilt would be the only rational inference to be drawnfrom the circumstantial evidence. [34] I will now set out a brief chronology to give context to the references to the evidence. [35] It was not clear on what date Constable Hebert received the tip from the informant or when the informant claimed to have madethe observations, but those things occurred on or before May 25, 2010. [36] The informant gave Constable Hebert a guess about the location of the Grow-Op using GPS coordinates.

On May 25, 2010,Constable Hebert participated in a flyover of the area around the suggested GPS coordinates. He was a passenger in a clearly markedRCMP helicopter and saw the suspicious greenhouses and took numerous photographs of the area.

The greenhouses were on privateproperty in an area which included parcels of Crown land. [37] On May 26, 2010, Constable Hebert obtained a search warrant for the property with a legal description which included the areawhere he saw the greenhouses on the first flyover. [38] At around 2 p.m. on May 26, 2010, Corporal Arnold drove out to the general area in what he called a "step of reconnaissance".He was looking at the terrain to decide where to set up the command post, where were likely points of entry and exit, and where theteams of officers should start and should stay pending arrival of the police helicopter. [39] At around 5 p.m. on May 26, 2010, Corporal Arnold was a passenger in a second flyover of the general area in the markedRCMP helicopter, again for reconnaissance purposes. [40] The search warrant was executed on May 27, 2010.

Many RCMP officers were involved that day. There were two teams ofthree officers each who were termed the "ERT" (emergency response team) members. They were deployed to enter the property by landand to stay concealed until the helicopter arrived, in the hope that people on the site would either surrender or be caught.

[ 41 ] Constable Jacques and other police members were present at a command post in the area of the intersection of a forest service road with a driveway to the Grow-Op.

They were there starting at around 5:10 in the morning. [ 42 ] At around 6:30 a.m., the six ERT officers began moving towards the greenhouse areas. [ 43 ] At around 8 a.m., Constable Merriman observed two males, one wearing camouflage and, as I have discussed, the other wearing a blue or blue-green or green jacket walking in the area of the greenhouses. [ 44 ] The marked RCMP helicopter flew over the greenhouses with its siren turned on shortly after 9 a.m., and the RCMP arrested the two accused shortly afterwards. [ 45 ] RCMP officers on the land observed the 22 greenhouses, which were in three groups or pods generally termed the "west," "central," and "east" pod.

The offices also observed three tents that appeared to be for eating and living; a refrigerator and food; clothing; equipment including generators, fans, heaters; and a system for watering. [ 46 ] Several officers went with a dog tracking a scent for about two and a half hours. At about 12:35 p.m. on May 27, 2010, a third person was arrested near the driveway from the forest service road to the greenhouses. [ 47 ] This is not a case where the Crown tendered evidence showing that either or both accused had a connection to the Grow-Op independent of their presence there on May 27, 2010.

The registered owner of the property was not either one of the accused. There was no evidence that the accused owned any of the items found on the property, such as heating and watering equipment, tents, electrical generators, vehicles, or other personal items like clothes or identification or photographs.

Investigations were made about the owner of certain items, including a pickup truck and electrical generators, but that did not result in a connection to either of the two accused. [ 48 ] The RCMP tested three open water bottles and one open pop can found on the site for fingerprints but did not obtain any fingerprints. Nothing at all was analyzed for DNA, and nothing else apart from the bottles and can was analyzed for fingerprints.

The RCMP did not seize any of the clothing or personal items on the site and did not make efforts to connect them to the accused in any way such as by comparing them with the size of the accused or the clothes that the accused normally wear or in any other way. [ 49 ] As I have said, the Crown's case turns on the fact that the accused were found at the Grow-Op in circumstances which the Crown argued leads to the sole rational inference that the accused were operators of the Grow-Op. [ 50 ] The Crown relied on 15 facts in paragraph 7 of the Crown’s written argument. There was little controversy about the first 12.

I will set out those 12 with some commentary and then discuss the three most controversial ones. 1. The property was located in a very remote location in Prince George. In my view, the evidence permits the conclusion that the Grow- Op was in a remote location, although I would not term it "very" remote. My reasons for saying that it was not “very remote” is the evidence that on May 27, 2010, there was a driveway which was about 500 to 800 metres long from the forest service road to the greenhouse area, and there was a working pickup truck on the site, and a working bulldozer blocking the driveway.

The location of the property was about 50 kilometres from Prince George, and there was a residential area 10 to 15 kilometres away. RCMP officers on the site heard a train in the area, and as I have said, the anonymous informant had been there at least twice exploring. 2. The area of the greenhouses was surrounded by heavy forest and by water on at least two sides. The evidence permits that conclusion. 3. The property was privately owned.

In my view, the evidence permits the conclusion that the legal title to the land underneath the greenhouses was privately owned and was, in fact, registered to an individual, I believe Mr. Wang, who was not shown to have any connection with the accused. 4. There was a large-scale, sophisticated, commercial marihuana grow operation on the property consisting of 22 greenhouses containing 17,928 marihuana plants. The evidence permits that conclusion. 5. The marihuana grow operation was the only activity occurring on the property.

The evidence permits the conclusion that the only structures and items on the property were for the use of the Grow-Op. 6. Aside from the greenhouses, there were three tents set up on the property which were essentially living quarters. The evidence permits that conclusion. 7. The marihuana grow operation required daily and full-time care. The evidence permits that conclusion.

The Crown's expert evidence was that it was a multistage commercial grow operation where the plants were in different stages of growth in order to achieve multiple and regular harvests; that the plants required varying exposures to light and darkness depending on their stage of growth; that tarpaulins were being manually rolled up and down to let the appropriate amount of light into the greenhouses; that the plants were being watered manually; that heaters were being used to control the temperature in the un-insulated greenhouses; that marihuana plants subjected to frost will die; and that this type of operation required daily and full-time care and monitoring and it would take at least two to three people, probably more, to tend to the plants. 8.

The marihuana grow operation was capable of generating between $6 million and $9 million. The evidence permits that conclusion. 9. There was one road leading to the property which was blocked by a bulldozer on the day of the offence. The evidence permits that conclusion. 10. There was a chain tied between two trees on the road leading to the property which also prevented vehicle access to the property. The evidence permits that conclusion.

11. Constable Jacques and other police members were present in the area of the intersection of the driveway and the forest service road at 5:10 a.m. Constable Jacques remained at that location until after 9 a.m. He did not observe anyone other than police members travel on the road leading to the property. The evidence permits that conclusion. 12. The RCMP helicopter flew over the greenhouses with its siren turned on shortly after 9 a.m.

The evidence does permit that conclusion. [ 51 ] I turn now to the three most contentious matters on which the Crown seeks to rely. [ 52 ] First, the Crown argued that the evidence permitted the conclusion that in less than a minute after the helicopter flew over the greenhouses, Corporal Brown observed the accused Mr. Ye, who was wearing camouflage clothing, running towards him through the trees from the area of the greenhouses. The defence argued that Corporal Brown's evidence did not support the assertion that Mr.

Ye ran from the area of the greenhouses. [ 53 ] I reviewed my notes of Corporal Brown's evidence, and it appears to me that Corporal Brown testified that both Mr. Ye and Mr. Vu came from the direction of the greenhouses, from the west end of the east pod. In cross-examination, Corporal Brown testified that he was not sure where the person in blue came from, being Mr. Vu, but that was in the context of his testimony that he first saw Mr. Ye wearing camouflage clothes running towards him and first heard Mr. Vu and then saw Mr.

Vu running towards Corporal Brown from the direction of the greenhouses. [ 54 ] The second more contentious fact the Crown sought to rely on was that the evidence permitted the conclusion that very shortly after Corporal Brown saw Mr. Ye, Corporal Brown observed Mr. Vu, who was wearing a blue jacket, running to his right coming from the same direction.

Again, the defence argued that the evidence was not properly reflected in that, and again, on my review of my notes, the Crown's submission is supported by the evidence. [ 55 ] The third item is the Crown's argument that at about 8 o'clock that morning, Constable Merriman observed two males, one wearing camouflage and the other wearing a blue jacket, walking in the area of the greenhouses.

As I said earlier in the discussion of Constable Merriman's evidence about the colour of the jacket, in my view, the evidence would permit the finding that the Crown seeks to rely on. [ 56 ] I reviewed all my trial notes, and I will set out some other evidence which may be relevant. [ 57 ] Constable Hebert testified that in the Information to Obtain, he said that the land was used for logging and that there were farms in the area. Constable Hebert testified that he did not think that the bulldozer was on the driveway when he did the first flyover on May 25.

He also testified that there was a triangular area close to the greenhouse area which had been cleared of trees. [ 58 ] As I said, Corporal Brown was one of the six ERT members. He testified that he heard a possible quad or pickup truck at 6:25 a.m. He testified that at 6:34 a.m., this being on May 27, 2010, he found a manmade trail which he assumed was for logging. The Radio Log says that Corporal Brown reported hearing a door close at 7:08 a.m., but he did not recall that. He testified that he did recall hearing a train that day.

He testified that he set up about 25 to 30 metres north of the greenhouses, between the central and east pods. [ 59 ] Corporal Brown testified that he could see the top of the west greenhouses, but because of the terrain, including a hill or a rise, he could not see the greenhouses completely. [ 60 ] Corporal Brown testified that he observed Mr. Ye running from the direction of the greenhouses and he saw him about 20 metres or so away. As I have said, he also testified that he observed Mr.

Ye running from the west end of the east pod. [ 61 ] Corporal Brown participated in the dog-tracking which lasted about two and a half hours and concluded with the arrest of a third person at 12:35 p.m. [ 62 ] Corporal Arnold was another ERT member, and he was on what I would term the second helicopter flyover. Corporal Arnold testified that he observed a number of cut blocks, being logged areas, in the general area of the greenhouses. [ 63 ] On May 27, 2010, Corporal Arnold testified that he observed that the terrain was very wet close to the greenhouses.

He testified that the greenhouses looked different from the second flyover because they looked clear white on the second flyover, and on May 27, 2010, many of the greenhouses were covered with a green tarpaulin. [ 64 ] Corporal Arnold testified that the black flies were awful and the worst he had seen even considering the six years he spent planting trees. [ 65 ] Corporal Arnold testified that he observed that the accused were wearing layers of clothing. [ 66 ] Corporal Arnold also participated in the dog-tracking which led to the arrest. [ 67 ] Corporal Arnold also testified that he heard a train in the area. [ 68 ] The Radio Log says that Corporal Arnold reported seeing a cooler and backpack along the water, but at trial, he testified that he did not have a present recollection of making such an observation. [ 69 ] Corporal Arnold observed the pickup truck and ordered that it be disabled.

He testified that he had to walk through thigh-deep marsh toward the driveway. He testified that it was about three to five kilometres from Eaglet Lake to the driveway. [ 70 ] Constable Shaw testified that he disabled the pickup truck that was on-site by removing the connection terminal cables from the battery.

[71] Constable Shaw testified that he observed the bulldozer being driven out of the way, apparently by an RCMP officer. [72] I turn now to the difficult question of whether the only rational inference is that Messrs. Ye and Vu had knowledge and controlof the marihuana grow operation. The task is more difficult on this no-evidence motion than on some cases because I must consider thatsome but not all of the evidence that I have referred to might be accepted. [73] Essentially, I consider this on the basis that the evidence most favourable to the Crown would be accepted.

The evidencepermits a number of inferences as argued by the Crown, including the following: 1. The greenhouses and tents and cistern, meaning the water-collecting pond, and the area within yards of those things and theequipment there were being used solely for a large and sophisticated grow op. 2. The Grow-Op was a valuable operation and a significant investment by someone. 3. The Grow-Op was a large, illegal operation and it is unlikely that it would be left unprotected. 4. Blocking the road with the bulldozer and chain were likely to prevent unauthorized access to the Grow-Op. 5.

No one had used the road to the Grow-Op area after 5:10 a.m. on May 27, 2010. 6. There were two people wearing clothes like those of the accused walking in the area of the greenhouses at around 8 a.m. 7. The only other person located by the police that day was Mr. Wong, who was wearing a brown pullover. 8.

Both accused ran into the forest from the area of the greenhouses soon after the police helicopter flew over. [74] The Crown argued that the only rational inference based on that evidence was that the accused were near the greenhousesbecause they were involved in the only activity taking place at that site, which was growing marihuana. [75] I will briefly refer to some law. It is a basic proposition that the mere presence at the scene of a crime in circumstancesconsistent with innocence will not support a conviction. That is discussed in Dunlop v.

The Queen, (SCC), [1979] 2S.C.R. 881, and it is also referred to in R. v. Jackson, 2007 SCC 52 , [2007] 3 S.C.R. 514 at paragraph 9. [76] Jackson is a case in which the Supreme Court of Canada upheld a conviction for illegal production of marihuana. There, likehere, the accused was present at a secluded marihuana plantation in a remote area of the forest and the entire site was dedicated to theproduction of marihuana on a commercial scale. In Jackson, the site did not bear evidence of any legitimate business enterprise,wilderness camping, or any recreational activities.

Here, the site does not bear such evidence but, as I have set out, there is other evidenceof logging in the area and of recreational use by the unnamed informant. [77] In Jackson, if was found that the accused had been present for at least two days, and when arrested, the accused was sleeping ina tent on the site and the tent had fertilizer in it.

Here, the court can infer that the accused were observed on the site for an hour fromabout 8 a.m. to about 9 a.m., but the accused were not discovered sleeping or discovered close to anything like fertilizer or somethingelse that would be used in a marihuana growing operation. [78] The Crown argues that this was such a big growing operation that it is irrational to infer that anyone could have been on it,particularly for an hour, unless they were authorized to be there by the operator of the Grow-Op. [79] As I have said, the police flew over the Grow-Op twice by helicopter before the execution of a search warrant.

The first flyoverwas on May 25, 2010, trying to determine if the informant's tip was true. The second flyover was on May 26, 2010. The police tried tokeep far enough away from the Grow-Op that they would not be seen by the naked eye, but both times the helicopter was well marked asa police helicopter. It might have been seen by operators of the Grow-Op who might have abandoned the Grow-Op and left it unattendedto be discovered by someone who was exploring or hunting or fishing in the area.

It is more likely that the operators left behindsomebody to tend or to protect the Grow-Op, but that is not the only rational inference. [80] The Crown argued that the accused ran away from the Grow-Op, and the only rational inference is that they were seeking toescape the police and avoid being found at the site. [81] I agree that the only rational inference is that the accused were seeking to run away from the police, which was also away fromthe Grow-Op; however, that does not establish that the accused had knowledge or control of the Grow-Op.

They might have come uponthe Grow-Op while hunting or exploring, and on seeing and hearing the police helicopter, they might have wished to avoid anyinteraction with police for any number of reasons, such as a general desire to avoid questioning, fear of immigration issues, or the like. [82] The Crown case is essentially based on the allegation that the accused were on the site of the Grow-Op for about an hour from8 a.m. to 9 a.m. in late May, and that they ran away from the police and the greenhouses.

The Crown says that the only rational inferencein the circumstances is that the accused had both knowledge and control of the grow operation. [83] In my view, that is not the only rational explanation. The accused may have been in the area for recreational or loggingpurposes. They may have encountered the Grow-Op area and walked through it. The third man arrested may have been the operator. Theactual operators may have escaped.

While it is likely that the accused were tending the Grow-Op, that is not the only rational conclusion.As a result, the Crown cannot establish knowledge and control over the Grow-Op beyond a reasonable doubt on the basis of makinginferences from the evidence which has been led. [84] As a result, I must allow the no-evidence motions and enter acquittals for both defendants. “Gray J.”