R. v. Huang, 2013 BCSC 2237

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Huang, 2013 BCSC 2237 Date: 20131122 Docket: 31009-4 Registry: Williams Lake Between: Regina And See Seng HUANG, Wai Hung KWAN, Rui Shi MO, Bing Biao TAM and Guo Xin ZHEN Before: The Honourable Mr.

Justice Abrioux Oral Reasons for Judgment Counsel for the Crown: James Whiting Counsel for the Accused, See Seng Huang: Jason Leblond Counsel for the Accused, Wai Hung Kwan: Ian Donaldson, QC Counsel for the Accused, Rui Shi Mo: Jonathan Desbarats Counsel for the Accused, Bing Biao Tam: Maegan Richards Counsel for the Accused, Guo Xin Zhen: Shelley Sugarman Place and Date of Trial: Williams Lake, B.C. September 9-12, 2013 Place and Date of Judgment: Williams Lake, B.C. November 22, 2013 I.

INTRODUCTION [ 1 ] See Seng Huang, Wai Hung Kwan, Rui Shi Mo, Bing Biao Tam and Guo Xin Zhen are charged that: Count 1 / Chef 1 See Seng HUANG, Wai Hung KWAN, Rui Shi MO, Bing Biao TAM and / et Guo Xin ZHEN, on May 28, 2010, at or near Williams Lake, in the Province of British Columbia, did unlawfully produce a controlled substance included in

Schedule II to wit: cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act . Count 2 / Chef 2 See Seng HUANG, Wai Hung KWAN, Rui Shi MO, Bing Biao TAM and / et Guo Xin ZHEN, on May 28, 2010, at or near Williams Lake, in the Province of British Columbia, did unlawfully possess in excess of three kilograms of a controlled substance included in

Schedule II to wit: cannabis (marihuana), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] A

summary of certain of the principal background facts is contained in admissions signed by both Crown counsel and counsel for the accused. It was marked as Exhibit 1 at the trial and provided: … 2. On May 28, 2010, police attended with a Search Warrant to 195 Jackpine Road, 150 Mile House, BC and located 8970 growing marihuana plants in a non-residential building with lighting, a CO2 generator, ballasts and capacitors. Adjacent to this building was another building containing two running 250 kilowatt diesel generators, providing power to the building containing the marihuana plants;

3. Also located on the property at 195 Jackpine Road, 100 Mile House was a residence, which was approximately 400 meters from the buildings containing the marihuana plants and generators. White and black cables connected the afore-mentioned generators to a running desktop computer located on a table within one of the residence bedrooms (room 3); 4. At the time of police entry, the monitor screen of the desktop computer in the residence displayed a window containing numerous numeric values and associated asian characters, which were later translated by RCMP Cst. Bill Gu; 5. The translations by RCMP Cst.

Bill Gu of the computer monitor screen and exhibits from “simplified Chinese” writing to English writing are accurate; 6. On May 28, 2010, all five accused were located inside the residence at 195 Jackpine Road, BC and placed under arrest: 7. If this Court finds that the Crown has proven possession, then it is conceded to be possession for the purpose of trafficking; 8. Cst. Dave Leonard can be qualified by the Court as an expert to give opinion evidence in the areas of production, packaging, distribution, trafficking and use of marihuana (as per the Notice). 9.

The book of photographs to be tendered by the Crown contains accurate images from 195 Jackpine Road on May 28, 2010. These photographs are selected from the disclosed photographs and a copy of the book will be provided to counsel in advance of trial. [ 3 ] A book of photographs was entered as an exhibit at the trial as was a second set of admissions. These provided: … 2. On May 29, 2010, Cst. Shearer provided 6 boxes of used grow light bulbs to the RCMP Ident Unit for fingerprinting. 3. Two finger impressions (R1 and R2) were developed by Cpl. Racine. 4. Neither of the two finger impressions developed by Cpl.

Racine matched those of any of the five accused [ 4 ] The accused did not testify nor did they lead any evidence on their behalf. [ 5 ] The principal issues in this case are possession and production. As I have indicated, if the accused are found to have been in possession of the marihuana, then they concede the possession was for the purposes of trafficking. [ 6 ] The onus is on the Crown at all times to prove each element of the offences beyond a reasonable doubt. The burden never shifts to the accused to disprove those facts alleged by the Crown.

So, particularly in a case such as this where the accused did not testify or lead any evidence, the fact they did not testify cannot be used against them. It was their right not to testify. II. THE EVIDENCE [ 7 ] On March 8 and 9, 2010, Constable Shearer and Corporal Evans of the Williams Lake RCMP detachment attended on the perimeters of a large rural property located at 195 Jackpine Road, 150 Mile House, B.C. (the “Property”). [ 8 ] The Property is located approximately a one-hour drive northeast of Williams Lake, B.C. It is located at the extremity of Jackpine Road.

The neighbouring properties contain farms and ranches which vary in size between 50 to 150 acres or more. The Property itself was on 60 acres of land. [ 9 ] The Property is also situated in the midst of Crown lands which had been forested in the past. There were, however, no forestry activities being undertaken in the vicinity of the Property in the timeframe between March and May 2010 inclusive.

There was also no grid hydro or telephone service to the area. [ 10 ] Two unnamed forest service roads parallel the western and eastern boundaries of the Property, which were marked with wire fencing. [ 11 ] There are two gates to the Property: one to the northeast of the residence where the accused were found (the “North gate”) and the other in the southeast corner (the “South gate”). [ 12 ] On March 8, 2010, Corporal Evans and Constable Shearer established an observation point on the forest service road side of the fence line close to the southwest portion of the Property.

They observed two buildings under construction. The larger building was approximately 200 feet long and 30 feet wide. The second was higher but not as long. The first building was referred to in the evidence as either “Building #1”or the “Grow Building”. The second was referred to as either “Building #2” or the “Electrical Building” or “Generator Building”. [ 13 ] The Grow Building and Generator Building were separated by an alleyway of approximately 1 meter.

Photographs of the alleyway established that there was a door to each building in close proximity to one another. [ 14 ] Corporal Evans was initially at a vantage point approximately 100 to 150 meters from the buildings. He then moved to the closer position of approximately 30 to 40 meters. [ 15 ] With the occasional assistance of binoculars, Corporal Evans observed two individuals of Asian descent who appeared to be working on one of the buildings. He could hear the sound of a gas-fueled generator.

[ 16 ] On March 9, 2010, Corporal Evans and Constable Shearer established an observation post at the fence line at the southeastern boundary of the Property. They walked down a forest service road to access this location. They had a clear view of the east side of both buildings on the Property. They observed what appeared to be two large yellow septic tanks located in front of the Generator Building. A blue minivan which had also been observed the previous day was in the same location. A gas generator was operating. [ 17 ] Three Asian males were observed between Building #1 and Building #2.

Building #2 had a large opening facing east. Corporal Evans was able to see inside Building #2. With the assistance of binoculars, he observed an electrical panel and an exhaust muffler system going to a generator. He also observed three Asian males working in between the buildings. One was standing on scaffolding adjacent to Building #2. Constable Shearer observed construction activity in the vicinity of both buildings.

He was also able to observe dials in the Generator Building and a muffler for a generator. [ 18 ] Although Corporal Evans was able to describe what the three Asian males were wearing that day, he was unable to make observations such that he could identify them at a later time. [ 19 ] Corporal Evans returned to the Property on March 10, 2010. He went to both the western and eastern vantage points. When he was able to observe the east side of the Property, the opening to Building #2 was closed. He did observe an Asian male who was working in the vicinity of the buildings.

Although he was at the same vantage point he had been at the previous day, he could not confirm that this male was one of the individuals he had observed the previous day. [ 20 ] Constable Shearer returned to conduct surveillance of the Property on May 26, 2010. He was accompanied by Constable Turko. His initial observations were made of the east side of the Property. With the aid of binoculars, he noticed that the Generator Building was now enclosed. He noticed two tall tanks in front of this building.

In addition, there was piping between the two buildings. [ 21 ] He then traveled to the observation post such that he could observe the west side of the Property. He could see “pop outs” on the side of one of the buildings which he believed were vents. He also observed bales of soil. Constable Shearer stated that he was not able to detect an odour of marihuana.

Constable Turko’s evidence was that he noticed a faint smell of marihuana from this vantage point. [ 22 ] On May 27, 2010, Constable Shearer contacted Health Canada and ascertained that there was no license for marihuana cultivation issued with respect to the Property. He also obtained a search warrant in relation to the Property which could be executed between 8:00 a.m. and 6:00 p.m. the following day. [ 23 ] On May 28, 2010, Constable Shearer conducted a briefing with the RCMP team which would be executing the search warrant. [ 24 ] The team of RCMP officers arrived at the Property shortly after 10:00 a.m.

Constable Smith cut a chain which was wrapped around the North gate, that is the entrance at the end of Jackpine Road. He then remained at that location for several hours. [ 25 ] Constable Shearer, together with the other RCMP officers, proceeded to the two buildings at the southwest corner of the Property. He described what he termed a “well-used driveway” from the gate at Jackpine Road to a residence and certain outbuildings located no more than 50 feet from the residence.

This road or driveway then went in a southerly direction ending at a gate, being the South gate. [ 26 ] Approximately 100 to 150 meters from the residence existed what Constable Shearer described as a “path” which went in a southwest direction towards the Electrical and Grow Buildings. This path consisted of beaten-down weeds or grass, but tire marks were visible. He was able to drive down the path to the buildings. [ 27 ] He did not see anyone in the vicinity of the buildings.

He had to yell that he was a member of the police and had a search warrant since there was a very loud sound caused by what turned out to be two diesel generators that were running. [ 28 ] The doors to the Grow and Generator Buildings were locked and so he forced them open. He cleared them, that is ensured there were no occupants in either building. [ 29 ] The Grow Building revealed a large grow operation. There were two rooms of growing plants, cloned plants on shelves, bottles containing nutrients, spraying equipment, etc.

Inside the Grow Building was a small, aboveground swimming pool which was used as a water reservoir.

The Generator Building contained two large diesel generators, electrical panels and equipment, wiring, etc. [ 30 ] Constable Shearer then attended at the residence where he had been advised five individuals had been located. [ 31 ] Various photographs were then taken of the residence, a neighbouring outbuilding and, somewhat later, the Grow and Generator Buildings. [ 32 ] The evidence of Constable Shearer and certain of the other police officers was to the effect there were no campgrounds or commercial recreational facilities in this remote rural area.

In their search of the Property, there was no indication that it was being used for farming purposes apart from the marihuana grow operation. No items were observed indicating the Property was being used as a base for fishing, hunting or other recreational activities. [ 33 ] There was a red minivan outside the residence. It was registered in the name of the accused Huang. There were no other non- police vehicles at the Property when the search warrant was executed. [ 34 ] The accused are the five individuals who were found in the residence at the time the search warrant was executed on May 28, 2010.

They were arrested and provided with notice of their Charter rights and associated warnings. This was done by Constable Davies by means of preprinted cards in Cantonese provided by him to the accused in the residence. Constable Davies testified that he read from a preprinted card in English that he had in his possession. He directed the accused to follow along on the cards in Cantonese. [ 35 ] The accused were transported in two vehicles to the RCMP detachment in Williams Lake. Constable Davies then obtained the

services of a Cantonese interpreter, Mr. Diao, via telephone. This occurred approximately two and a half hours after the accused were apprehended at the residence. [ 36 ] Constable Davies testified that the following occurred at the Williams Lake detachment. He proceeded to read, individually and sequentially, to each accused their Charter rights and associated warnings which he understood Mr. Diao was translating into Cantonese as he went along. With respect to Mr. Kwan, he advised him he was under arrest for production of marihuana and possession for the purpose of trafficking. Mr.

Kwan’s response, as translated by Mr. Diao, was “Oh I just came up here yesterday”. [ 37 ] Constable Davies also testified that when this process was followed with Mr. Zhen, his response, through Mr. Diao, was “That’s not my business, I’m just visiting my friends”. [ 38 ] It was also Constable Davies’ evidence that at the residence Mr. Zhen was nodding his head as Constable Davies read the Charter rights and warnings as Mr. Zhen followed along on the Cantonese version he had been provided. He was not able to get a better indication from Mr.

Zhen as to whether he in fact understood English. [ 39 ] In redirect examination, Constable Davies stated he had no way of knowing of the accused’s ability to understand English on May 28, 2010. [ 40 ] Crown counsel took the position that although he agreed with counsel for Mr. Kwan and Mr. Zhen that these statements could be admitted into evidence through Constable Davies, they should be accorded no weight. [ 41 ] I will now return to the search of the Property. Constable Tent was the exhibits officer.

In addition to the items seized in the residence, he described his visit to the outbuilding located close to the residence. He stated he observed five gallon jerry cans, several propane tanks and large bags of fertilizer. [ 42 ] He also described the Grow and Generator Buildings. The Generator Building contained two very large generators, an elaborate electrical panel system and supplies including oil.

In a small electrical room located off of the grow room, there was a chart in Asian characters which was similar to the one above the computer located in the residence. [ 43 ] Constable Tent testified that he was aware that a key had been located in the alley between the two buildings. He did not know why it was not seized. [ 44 ] Certain of the RCMP team left during the course of the day on May 28, 2010, after their assigned duties had been completed. Constables Shearer, Turko and Tent stayed on the Property overnight such that it remained secure.

In addition, certain large items of property which were seized, including the generators, remained on the Property. The officers slept in their police vehicles. They did not re-enter the residence until the next day. [ 45 ] On May 29, 2010, when Constable Tent returned to the inside of the residence, he located two sets of keys on a beam just outside the living room. They were on nails next to other nails on which were hanging white plastic bags.

One of these keys opened the door to the Generator Building and another opened the Grow Building. [ 46 ] A search of the residence, the neighbouring outbuilding, the Grow and Generator Buildings and, generally, the Property itself on May 28, 2010, revealed the following: A. The Residence • five Asian men were in the residence which was clearly inhabited. They all had addresses in the Lower Mainland; • there were no other persons located at the Property; • there were boxes of dry foods and vegetables, a fully stocked refrigerator, clothes hanging in various rooms, etc.

The residence was set up for long-term residency by several people; • according to the police evidence, the power source to the residence consisted of an electrical cable running from the Generator Building to the residence; • the residence contained five sleeping areas.

Each appeared to be in use and the number of sleeping areas matched the number of accused; • one bathroom contained five tooth brushes with two other toothbrushes located in a separate bathroom; • the bedrooms contained mattresses, bedding, clothes and, in one room, a small personal bag; • the window coverings were of the same material as coverings in the Grow and Generator Buildings; • two NUT FM portable “walkie talkie” radios with a charging base were found; • there was a 2010 calendar in the kitchen area containing Asian characters which was open to the month of May, but missing the month of April; • a room adjacent to the main living area contained a desk with a computer monitor.

The computer was operating at the time of the initial search. Various images on the screen contained Cantonese writing. These are referred to in the admissions set out in paragraph 2 above;

• the accused admit that an English translation prepared by Constable Gu of various Asian characters shown on the photos taken of the computer monitor screen contained the following words: on, off, out, in, large pipe, small pipe, settings, edit, remote control, install, analog display, auto mode, manual mode, test mode, auto shut down, warning/alarm, temperature, status, fuel level, fuel pressure, battery voltage, charger voltage, active power, inactive power, unit operating status, generator system is working properly, power factor, generator total, generator unit set installation, work projects, work/construction

schedule (day), generator station structure, station noise reduction, generator unit installation, fuel system installation, power distribution cabinet installation, switchbox installation, cable wiring, electronics installation, computer test, wiring adjustment, cable connection, equipment operating control system, emergency power, ventilation system; • documents affixed to the wall above the computer were similar to those found on one of the electrical panels in the Generator Building; • there was a list of generator-related construction tasks located on the desk in front of the computer; • an English manual for a diesel generator was located in the desk drawer on which the computer monitor was positioned; • there were multiple scissors and exacto knives on desktops and countertops in the residence; • plastic coverings and chains used in the residence matched those used in the Grow Building; • a series of water hoses coupled together ran the distance of approximately 400 meters from a bedroom in the residence located behind the kitchen counter to the Grow Building; • the power supply to the residence came from the generators in the Generator Building; • there was a cable running from the computer to the Generator Building; • two sets of keys were seized.

They were on a nail located on a beam just outside the living room area of the residence. Two of these keys unlocked the doors to the Grow and Generator Buildings, another unlocked the electrical room within the Grow Building and two others unlocked the door to the residence and the padlock on the chained North gate; B. The Outbuilding • in the outbuilding located in close proximity to the residence, that is approximately 50 feet away, were a large number of plant pots, propane tanks and jerry cans used to carry fuel. These matched tanks, pots and cans which were located in the Grow and Generator Buildings; C.

The Area Between the Residence and the Generator and Grow Buildings • Constables Shearer and Evans testified that they followed the electrical wiring from the residence to the Generator Building. With the exception of a few meters outside the residence where the wiring was buried, it was visible to them the entire distance; • Constable Shearer testified that the series of garden hoses which were coupled together and ran from inside the residence to the Grow Building were also visible the entire distance of 400 meters, with the exception of a few meters where they appear to be underground; D.

The Grow and Generator Buildings • a search of the Grow Building located 8,970 marihuana plants growing in plant pots, together with equipment such as a CO2 generator, ballasts, capacitors and lighting.

Corporal Evans described the plants as “very healthy” and that they appeared “well cared for”; • there was an aboveground swimming pool which was used to store water for watering purposes; • the Generator Building contained two 250 kW generators and electrical towers which were operating and providing power to the Grow Building and residence; and • Inspector Brown, who had in excess of 20 years’ experience as an officer with the RCMP, testified that the generators which seemed brand new were the two largest he had ever seen.

It “was probably the biggest, [most] sophisticated and powerful system” he had ever encountered. [ 47 ] Constable David Leonard provided expert evidence pertaining to the production, packaging, distribution, trafficking and use of marihuana. His opinions included the following: • although he did not view the operation itself, based on his experience and a review of the materials provided to him, he estimated that the grow operation would have a conservative yield, at maturity, of 1,680 pounds or 26,910 ounces of marihuana with a “lower end … wholesale or pound” value of $3.3 million; and

• although it was impossible to identify exactly how many workers would have been required at the Property, he could say withcertainty that the operation would be much too large for a single person to operate and maintain. It would require several workers,working full-time to effectively manage the operation. The daily care for just the 4,020 potted plants would take approximately 22 hoursper day.

This did not include care for the clones or dealing with associated tasks such as power or lighting. [48] He also stated: • the plants as viewed on the photographs appeared to be healthy and that this was a soil-based operation; • scissors and exacto knives were often used to prune marihuana plants in grow operations; • marihuana grow operations such as the one located on the Property are very vulnerable to law enforcement action as well as “rip-offs” by other criminal groups.

Security would be a concern; and • there was no evidence of surveillance activity or security features such as booby traps or weapons on the Property. III.

THE ISSUES [49] The two principal issues are whether the Crown has proven beyond a reasonable doubt that the accused: • had possession of the marihuana, that is knowledge of its existence and a measure of control over it; and • were active participants in the growing of prohibited plants. [50] To state the issues another way, considering the fact the Crown’s case is based entirely on circumstantial evidence, is theaccused’s possession of the marihuana and/or their active participation in the growing of prohibited plants the only reasonable inferencesto be drawn from the evidence? IV.

THE APPLICABLE PRINCIPLES [51] Many of the applicable principles are summarized in R. v.

Ngo, 2009 BCCA 301 at paras. 51-65: • to succeed in a prosecution of possession for the purpose of trafficking, the Crown must prove beyond a reasonable doubt that theaccused had possession of the substance, that is knowledge of its existence and an element of control over it; • possession is not an included offence in the offence of production or cultivation, the “gravamen” of which is the activeparticipation in the growing of prohibited plants; • a person may be convicted of production as either a principal or a party who aids or abets the principal.

In a “grow op” case, anaccused may have been found to have aided and abetted in the production of the marihuana by maintaining the environment in which themarihuana is produced, with the purpose or intent to assist in the crime; • the Crown may prove the essential elements of the offences of possession and production by direct or circumstantial evidence or acombination of the two.

Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubtthat the guilt of the accused is the only reasonable inference to be drawn from the facts; • the criminal standard of proof is not to be applied to each piece of evidence. In considering whether the circumstantial evidencesupports an inference of guilt beyond a reasonable doubt, the trier of fact must not examine each piece of evidence in isolation.

Instead,the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused beyond a reasonabledoubt and is inconsistent with any other reasonable conclusion; and • as far as competing inferences from circumstantial evidence that might be open to a trial judge are concerned, he/she is notexpected to: … treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competingpossibility.

The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demandcertainty. [R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at para. 41 (C.A.), McEachern C.J.B.C., cited with approval in Ngo atpara. 55.] [52] In addition to the above, the following principles also apply: • possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonabledoubt that the accused knew of the presence of the substance and he had some measure of control over its location: R. v.

Fisher, 2005BCCA 444 at paras. 20-24; • constructive possession is complete “where the accused: (1) has knowledge of the character of the object, (2) knowingly puts orkeeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular placefor his ‘use or benefit’ or that of another person”: R. v. Morelli, 2010 SCC 8 at para. 17, Fish J.; • mere presence, that is what certain of the authorities refer to as being a “found-in”, is not sufficient to establish guilt. This is

because mere presence at the scene of a crime is not necessarily proof of guilt: R. v. Jackson, 2007 SCC 52 at paras. 3, 9, and R. v.Sylvestre and Dunlop, (SCC), [1979] 2 S.C.R. 881, both cited in R. v. Liu, 2011 BCSC 1269 at paras. 28-29; • in some cases, in the absence of a credible explanation, an inference of knowledge may properly be drawn from the circumstantialevidence: R. v. To, supra, cited with approval in R. v. Vu, 2002 BCCA 659 at para. 25; • where an alternative inference is asserted, there needs to be some evidence to support it: R. v.

Vu, supra, at para. 26; • the trial judge is entitled to apply ordinary human experience and common sense in his/her assessment of the evidence. He/sheshould not apply speculative reasoning: R. v. Bi, 2011 BCCA 10 at paras. 15-16; and • while it is true that an accused is not called upon to explain suspicious things, “there comes a time when, circumstantial evidencehaving enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or standcondemned”: R. v. Jenkins (1908), (BC SC), 14 C.C.C. 221, cited with approval in R. v. Dae, 2010 BCCA 486 at para.20. V.

THE POSITIONS OF THE CROWN AND THE DEFENCE A. The Crown [53] The Crown submits that when the circumstantial evidence in this case is considered cumulatively, it has proven its case againstthe accused beyond a reasonable doubt. [54] In particular, it argues that the only reasonable inference to take from the facts is that all five accused were actively participatingin the production of marihuana at the Property.

The Court need not decide whether each accused was acting as a principal or a party. [55] The Crown points to the body of evidence linking the residence where the accused were arrested to the Grow and GeneratorBuildings. It submits that the keys found by Constable Tent in the residence were in an open and easily accessible location.

It also relieson Constable Leonard’s evidence that this type of operation is very labour-intensive and required multiple persons to operate it. [56] Insofar as possession is concerned, the Crown submits that the five accused were jointly in constructive possession of themarihuana located within the Grow Building. This joint possession is the only reasonable inference to be drawn from an examination ofthe surrounding circumstances considered within the context of the totality of the evidence.

Knowledge may take the form of wilfulblindness. [57] While there were many other factors, the Crown points to the keys found in the residence, the computer screen and the datarelating to the generators. This evidence proves that the accused exercised “some measure of control”. B. The Defence [58] The accused’s position includes: • the arrests resulted from a sloppy police investigation.

This included not seizing the key found between the Grow and GeneratorBuildings, not obtaining fingerprints at the scene nor DNA from the clothes found in the residence and not investigating the property tothe south nor the registered owners of the Property. In addition, there was no follow-up done to the fingerprints found on the light bulbsseized in the Grow Building; • while there may have been connections between the residence and the Grow and Generator Buildings, there was no evidence oflinks between the accused and those buildings.

There was also no evidence as to who actually lived in the residence and for how long; • there were alternate innocent inferences which could be taken from the evidence, in particular that one or more of the accusedwere casual visitors. They could have been at the Property to deliver food or to visit friends. One or more of them could also have beenthere to give their friends a ride back to Vancouver, for example in Mr. Huang’s vehicle; • if one of the accused could have been a casual visitor then the Court cannot exclude that possibility for all of them.

If a reasonabledoubt exists for one, then they should all be acquitted; • one or more of the accused could have been living in the residence but working elsewhere in the area. There were other residencesin the area and the occupants presumably worked somewhere; • the Crown has failed to establish knowledge of the operation, an element of control or that the accused were active participants inthe cultivation of the marihuana; • the question becomes whether it is possible that the accused could be in the residence and not have knowledge of the growoperations.

It would not be surprising that a person would hear generators in this area in that there was no hydro service; • there was nothing to tie the accused with the setting up or the maintenance of the generators; • knowledge in a general sense about the grow operation constitutes at best a passive acquiescence, which is not sufficient to supporta conviction; • the evidence in this case is not sufficient to displace the alternative rational inferences; and

• counsel for the accused Zhen submits that the case law generally differentiates between grow operations located in a residence and those located in outbuildings, greenhouses or the like. A finding of actual residency is almost always required to prove knowledge of a residential grow operation where there are no sensory indicators present and no evidence that the accused was ever in the grow operation as shown by the existence of fingerprints or the odour of marihuana about their person or clothing. VI. DISCUSSION A.

Introduction [ 59 ] I have considered the legal principles that I referred to above and the body of circumstantial evidence before me, including what I have set out in paragraphs 41 to 48 and which to a large extent is shown in the book of photographs marked as an exhibit at the trial. I have also considered the admissions made by the Crown and the accused. B. The Assistance Provided by Other Authorities [ 60 ] It is clear that each case must be decided on its own facts.

The limited or lack of utility in comparing the facts of one case decided on circumstantial evidence with another was stated this way by Rowles J.A. in R. v. Ngo , supra , at paras. 57 : [57] Reference to circumstantial evidence cases involving marijuana grow ops that may have factual similarities to a case under consideration was the subject of comment in R. v. He , 2008 BCCA 418 , 237 C.C.C. (3d) 1. In He , the appellant had placed considerable reliance on the decision of MacKenzie J. in Tran , as the appellant does in this case.

The lack of utility of such comparisons was explained by Bauman J.A. in He , at para. 48 : [48] There, in a case with some similarities to that at bar, the learned judge held that the evidence did not support an inference of control by the accused, to found a conclusion of possession. With respect, how one trial judge assessed the evidence in the case before her does not assist on appellate review of another trial judge's assessment of the evidence in a different case.

As Yebes holds, appellate review in a case like this calls for a determination “on the whole of the evidence whether the verdict is one that a properly instructed [trier of fact], acting judicially, could reasonably have rendered”. [ 61 ] In this case, I was referred to many authorities by both Crown and the defence. Apart from the statements outlining the applicable principles, they were of very limited assistance to me in that: • the accused testified but his explanation was rejected by the trial judge. He was convicted and the conviction was upheld on appeal: R. v.

Jackson , supra ; • the accused did not testify but other inferences could be drawn from the evidence such that others apart from the accused were living in the residence and there was nothing in the evidence to connect the accused to the grow operation: R. v. Tran , 2006 BCSC 1504 ; • the evidence against the accused was described as “slender” and insufficient to prove beyond a reasonable doubt the requisite knowledge and control to establish possession or active participation: R. v. Lee and Pang , 2011 BCPC 21 ; • the accused testified at his trial.

His evidence was disbelieved and he was convicted of possession for the purposes of trafficking, production and theft of electricity. Inter alia , the trial judge referred to the fact that it would have been inconceivable for the accused to have not noticed “some of the obvious signs of marihuana production, including an odour, the sound of fans and condensation” (at para. 12).

On appeal, the convictions were set aside on the basis that the trial judge was found to have misapprehended the evidence, thus materially affecting the assessment of both the testimony of the accused and the strength of the case against him: R. v. Pham , 2008 BCCA 272 ; • the accused testified as to her lack of knowledge of the grow operation. Although her evidence was not necessarily accepted, it was not utterly rejected by the trial judge and she was acquitted: R. v. Ryan , 2004 BCSC 1134 ; • the accused did not testify but his co-accused did. His evidence was accepted in some respects but rejected in others.

The conviction against the accused was overturned on appeal: R. v. Lai , 2012 BCCA 202 ; • the accused did not testify nor did he lead any other evidence. He was convicted, in part, as a result of the trial judge’s finding based on the police evidence that “there is an irresistible inference that it was the accused … who threw the hard yellow substance from bedroom no. 2 immediately after the entry of the ERT into the residence” (at para. 8): R. v. Liu , 2011 BCSC 1269 ; • the accused did not testify but there was other evidence led on their behalf. They were convicted nonetheless: R. v.

Fisher , 2005 BCCA 444 , and R. v. Bi , 2011 BCCA 10 . In R. v. Bi , there was a concession that both accused had knowledge of the marihuana operation (I note there is no such concession in this case) and the trial judge referred to additional evidence that “tended to link [the accused] with the illicit activity in the basement” (at para. 11); • the accused did not testify but his mother did. She had lived on the property for many years, including at the time of the search. There was evidence of other people resident in the house and that the accused was away from the property for extended periods of time.

He was acquitted: R. v. Maxwell , 2004 BCSC 1142 ; • the accused, who had absconded, was acquitted in circumstances where there was evidence in the Crown’s case that was consistent with someone else living in the residence. That person’s vehicle was located at the residence, the lease was in her name and it was information regarding this person which had initiated the police investigation: R. v. Passon , 2011 BCSC 16 ; and

• the accused were successful on a no-evidence motion in that there was evidence in the Crown’s case which provided a reasonable doubt based on an alternative rational inference: R. v. Qiang , 2013 BCSC 1597 . [ 62 ] Based on a review of these authorities and others to which I was referred, I disagree with the broad proposition submitted by the accused Zhen that the analysis of knowledge and control often depends on whether the grow operations were in residences or outbuildings. The only conclusion that can be reached, in my view, is that the result in each case is highly fact-specific. C.

The Statements Made By the Accused Kwan and Zhen [ 63 ] Prior to applying the principles to which I have referred to the circumstantial evidence in this case, I must deal with the statements apparently made by the accused Kwan and Zhen at the Williams Lake detachment of the RCMP. [ 64 ] These statements were “Oh I just came up here yesterday” and “That’s not my business, I’m just visiting my friends”, respectively. [ 65 ] Crown counsel agreed with defence counsel that these statements could be admitted into evidence but submitted that they should not be afforded any weight. Reference was made to R. v.

Risby , [1976] B.C.J. No. 755 (C.A.) , although I was not provided with a copy of that authority at the time. [ 66 ] I have now reviewed R. v. Risby and am of the view that the issue there was properly one of admissibility, not weight. The facts in Risby , which was decided on the basis of the res gestae exception to the rule against hearsay, are distinguishable in material respects from those in this case. There, the statement was made to a police officer moments after the accused was ordered out of a motor vehicle.

In this case, the statements were made approximately two and a half hours after the accused were arrested. [ 67 ] Notwithstanding this conclusion, I will consider the statements from the perspective submitted by the Crown that is they should be accorded no weight.

In any event, in the circumstances of this case, my view is that the end result is the same. [ 68 ] The accused Kwan and Zhen take the position that their statements did have the necessary temporal connection to their arrest since “the clock began to tick” on their arrival at the RCMP Williams Lake detachment when they were provided access to an interpreter. This is due to the fact that they did not understand English. [ 69 ] The position of the Crown is that the statements should be afforded no weight since the necessary temporal connection is not present.

There is also no evidence that these accused did not understand English. [ 70 ] I agree with the Crown’s submission. There is no contemporaneous temporal connection between the time of arrest and when the statements were made to the police officer by means of an interpreter at the Williams Lake RCMP detachment. [ 71 ] Mr. Kwan and Mr. Zhen submit that the statements were contemporaneous since they were made at the time an interpreter was provided to them. I disagree.

While the accused Kwan and Zhen may have preferred to communicate through an interpreter, there is no evidence that they did not have the ability to communicate in English prior to one being made available.

I view the best evidence on this point to be that of Constable Davies in re-direct examination, being that he had no way of knowing of the accused’s ability to understand English on May 28, 2010. [ 72 ] Even if I were to give some weight to these statements, they would not constitute evidence which would raise a reasonable doubt that either of these accused were in possession of the marihuana or actively involved in its production. The statements were not to the effect they had come to the Property on Jackpine Road for the first time the day before.

The statements, without more, did not constitute evidence which could provide the basis for a reasonable doubt as to an alternative innocent inference to be drawn. I would be guessing as to what was meant by those statements. Speculation does not provide a basis for reasonable doubt: see R. v. Bi , supra , at paras. 16, 23 . D. Applying the Legal Principles to the Facts [ 73 ] An accused’s presence at the scene of a crime in circumstances consistent with innocence will not support a conviction. Nor will passive acquiescence.

I am of the view, however, that the evidence does not raise a reasonable doubt as to the existence of either of these alternatives on the facts of this case. [ 74 ] I conclude the only reasonable inference to be drawn from the totality of the circumstances is that: • the accused were occupying the Property on Jackpine Road; • they were in possession of the marihuana in that they had both knowledge and an element of control over it; and • they were active participants in the growing of prohibited plants either as principals or as aiders and abettors. [ 75 ] I find these inferences to be “irresistible”: R. v.

Hubble , 2002 BCCA 561 at paras. 14-15 . This is because the totality of the circumstances includes those facts to which I have referred in paragraphs 41 to 46 above. These include: • the power to the residence with its big screen TV, fridge, freezer, computer, etc. all came from the generators in the Generator Building which was adjacent to the Grow Building and also provided power to that building; • the power cable for the computer in the residence was linked to the Generator Building; • the computer screen displayed wording referring to the generator system, in particular whether it was “working properly”;

• the room in which the computer was located was adjacent to the main living area and the computer screen was visible from the living area; • fuel had to be supplied to the generators and there was cross-matching of the fuel canisters, propane tanks and planting pots in the outbuilding close to the residence to those found in the Grow and Generator Buildings; • the extent of the grow operation leads to the common sense inference that several people were required to maintain it.

Inspector Black testified that this was the most sophisticated system of generators he had ever come across; • there is no evidence of alternative innocent inferences which could be drawn. In particular, there is no evidence to support the alternative inferences suggested by the defence. Certain of the accused submitted that since one of the accused, Mr. Zhen, was in his pajamas when the police entered the residence and they were not, an alternative innocent inference which can be drawn from the evidence is that they had just arrived that morning to visit one or more of their acquaintances.

In my view, I am essentially being asked by these accused to embark on a process of “speculative reasoning”. This, I am not prepared to do: see R. v. Bi , supra , at para. 16 . • this is also the case with respect to the accused’s submission that another access to the property from the South gate should give rise to a reasonable doubt.

When I consider the number of links to which I have referred between the residence where the accused were found, the outbuilding and the Grow and Generator Buildings, I am of the view, considering an absence of evidence on the point, that it would be entirely speculative for me to find an alternative innocent inference relating to unknown third parties accessing the buildings from the South gate.

In that regard, there was no evidence of any power cable or hoses running from the Generator and Grow Buildings in the direction of the South gate or beyond; • there is no evidence of alternative innocent inferences, that is hunting, logging or recreational activities; and • there is no evidence of other alternative users or occupiers of the property, any of which could have given rise to a reasonable doubt based on the existence of an innocent alternative inference which could be drawn from the evidence. [ 76 ] Furthermore, there is the evidence of Constable Leonard which I have summarized at paragraphs 47 and 48 above. [ 77 ] In my view, this is not a “found-in”, “mere presence” or “passive acquiescence” case.

There is much more. To use the language from R. v. Jackson , supra , at para. 3 , there is “the cumulative effect of [the accused’s] apprehension at the scene, … the particular nature of the offence, the context in which it was committed, and other circumstantial evidence of [their] guilt.” [ 78 ] The accused submit that if I have a reasonable doubt as to the guilt of one of them, then they are all entitled to an acquittal.

In particular, they say that if an alternative innocent inference is that one of them may have been a casual visitor, then they should all be found not guilty. [ 79 ] But, for the reasons I have outlined, the body of circumstantial evidence is such that I do not have a reasonable doubt that any of them lacked the requisite knowledge and did not exercise an element of control over the marihuana grow operation. Knowledge can be inferred from the surrounding circumstances: R. v. Fisher , supra , at para. 35 and R. v.

Vu , supra , at para. 25 . [ 80 ] Nor do I have a reasonable doubt on the evidence that the accused were not active participants. This was a very valuable and sophisticated operation and it is not an alternative reasonable inference for me to take from the facts that the participants would permit casual visitors to simply “drop by” as the accused implicitly submit. [ 81 ] Nor does the 400 to 450 meter distance between the residence and the Grow and Generator Buildings with many trees in between which would obstruct the view of one from the other create a reasonable doubt as to the accused’s guilt.

There was a well- traveled road and path identified by tire marks between the two locations. In addition, there were all the other links between the two locations to which I have referred. [ 82 ] I do not accept the accused’s submission that because none of their fingerprints were on the light bulbs seized from the Grow Building that this should give rise to the inference that others were in that building thereby raising a reasonable doubt as to their guilt. The fingerprints could be those of persons at the facility where the bulbs were manufactured or the store where they were purchased.

There are other plausible explanations. Viewed from the perspective most favourable to the accused, the absence of their fingerprints on the light bulbs is equivocal. [ 83 ] I also do not accept the accused’s submission that although there are many connections between the residence and the Grow and Generator Buildings, there is no evidence linking the accused to those buildings. Examining the evidence from the perspective of “realism” as was suggested by former Chief Justice McEachern in R. v.

To , supra , I have concluded there is, in this case, a substantial body of evidence probative of knowledge and control, the necessary ingredients for a finding of guilt of possession together with active participation in the production of the marihuana. [ 84 ] Accordingly “[a]bsent an innocent explanation capable of raising a reasonable doubt, the cumulative effect of these circumstances is to compel the conclusion that [the accused] were parties to the cultivation and possession of the marijuana…”: R. v.

Bi , supra , at para. 23 . [ 85 ] While it is true that an accused is not called upon to explain suspicious things, I am of the view that this is one of those cases where the “circumstantial evidence having enveloped [the accused] in a strong and cogent network of inculpatory facts, [those accused are] bound to make some explanation or stand condemned”: R. v. Jenkins , supra , cited with approval in R. v. Dae , supra , at para. 20 . [ 86 ] This is one of the features which separates this case from several of the authorities referred to by the accused, including R. v. Tran , supra , and R. v.

Lee and Pang , supra . E. Conclusion

[ 87 ] I am satisfied beyond a reasonable doubt that the only reasonable inference to draw from the facts is that the accused were in possession of and active participants in the growing of prohibited plants. [ 88 ] Would the accused please stand. See Seng Huang, Wai Hung Kwan, Rui Shi Mo, Bing Biao Tam and Guo Xin Zhen, I find each of you guilty of production of a controlled substance, being marihuana, as set out in Count 1 of the indictment. [ 89 ] In accordance with the admissions which have been made by you as set out in paragraph 7 of Exhibit 1, I also find each of you guilty of possession of marihuana for the purpose of trafficking, as set out in Count 2 of the indictment. “Abrioux J.”