R. v. Serban, 2017 BCSC 16

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Serban, 2017 BCSC 16 Date: 20170104 Docket: 77687-3 Registry: New Westminster Regina v. Cristina Serban and Romeo Serban Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for the Crown: H. Doherty Counsel for the accused C. Serban: Counsel for the accused R. Serban: N. Preovolos D. Milburn Place and Date of Trial: New Westminster, B.C. December 12 - 13, 2016 Place and Date of Judgment: New Westminster, B.C.

January 4, 2017 Introduction [ 1 ] Romeo and Cristina Serban are charged with two offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ]: (1) the unlawful production of cannabis (marihuana), contrary to s. 7(1); and (2), possession of cannabis (marihuana) in an amount in excess of three kilograms, for the purposes of trafficking, contrary to s. 5(2). Both offences are alleged to have occurred on October 15, 2012 at Maple Ridge, British Columbia.

The Crown alleges that the accused were involved in a large-scale marihuana grow operation located in the basement of their residence in Maple Ridge. [ 2 ] Romeo Serban made no submissions as to his liability. In effect, he invites the court to convict on the charges. However his spouse Cristina Serban contends that the Crown has not established the charges against her. [ 3 ] The key issues for decision are:

a) In relation to the production charge, whether Cristina Serban was involved as a participant in the marihuana grow operation, so such that she ought to be convicted either as a principal or as party; and

b) In relation to the possession for purposes of trafficking charge, whether Cristina Serban was in possession of the marihuana. [ 4 ] For the reasons that follow, I convict Romeo Serban of both offences, and I acquit Cristina Serban of both offences. Background Facts [ 5 ] In response to a 9-1-1 emergency telephone call, members of the Maple Ridge RCMP attended and entered a large two storey single family residence occupied by the Serbans on October 15, 2012. They discovered a sizable marihuana grow operation in the basement of the residence.

They obtained a search warrant and re-attended the residence later that day. They found 780 vegetative plants and 8,958 clone plants, thus the total number of plants found was 9,738. The clone plants are produced from cuttings from mature plants, and can be used to grow plants genetically identical to the plant from which they are cut. They are effectively seedling plants.

In addition the police observed other items consistent with a marihuana grow operation, such as containers, lights, shelving, soil, nutrients, watering equipment, timers, a money counting machine, a scale, ventilation ducting, a gasoline operated electricity generator, and fuel tanks. The grow operation occupied the entire first floor or basement of the residence. The police also found a very small amount (5 grams) of dried marihuana. [ 6 ] The evidence obtained on execution of the search warrant establishes beyond a reasonable doubt that the Serbans were

occupying the upper storey of the residence. It is admitted that they jointly owned the premises and resided on the upper floor together with their two young children. Cristina Serban testified that as of October 15, 2012 her husband’s father was also residing in the home, on the upper floor, and her parents were staying there while visiting from their native country, Romania. [ 7 ] The evidence for the Crown consisted of facts set out in an agreed statement of facts, together with photographs, documentary exhibits, and the expert opinion reports of two RCMP constables, Constable D.

Hawes of the Ridge Meadows RCMP detachment and Constable S. Sharma of the Coquitlam RCMP detachment. The opinion evidence from the officers concerned the nature of the grow operation and whether it would be for private use or commercial sale purposes. Constable Sharma adopted the expert opinion report of Constable Hawes and also prepared his own report. He was cross-examined at trial. [ 8 ] Cristina Serban testified in her own defence. [ 9 ] She testified that she immigrated to Canada from Romania in December, 2003.

Her husband had arrived in Canada three years previously. [ 10 ] They purchased the residence together in 2009, and resided there with their family since then.

Therefore they had resided in the residence together for about three years prior to the discovery of the grow operation by the police on October 15, 2012. [ 11 ] She acknowledged that she was aware that her husband was cultivating marihuana in the basement of their home at the material times, but asserts that this activity was carried on by her husband alone, against her wishes, and that she had no role in it whatsoever. [ 12 ] She testified that it was solely her husband’s decision to grow marihuana in their home.

He told her that he had decided to grow marihuana in the basement for his own personal use, for pain relief. He had suffered injuries in a car accident and also had work injuries. He had undergone surgery twice; once in 2009 and again in 2011 or 2012. He said he wanted to avoid becoming addicted to the potent prescription pain medications he was using.

She testified that they had a conversation in the summer of 2012 (a few months before the search) during which she begged him not to grow marihuana, and even threatened divorce, but he refused to reconsider. [ 13 ] She stated that he installed the grow operation in the previously unfinished basement storey of their home without any involvement or assistance of any kind from her. She stated that the only interior access to the basement was via an interior staircase off of the kitchen. The door to the staircase was always locked and she had no key.

She testified that the exterior door to the basement was also always locked, and she had no access. She denied ever going into the basement after the conversation with her husband that she described. The living space of the residence was all on the upper floor, consisting of 2,850 square feet, and she had no need to go to the basement for any purpose.

She concedes that she knew the grow operation was illegal. [ 14 ] The scale of the grow operation leaves no room for doubt that it was for commercial sale purposes, or in other words, for the purpose of trafficking. [ 15 ] The evidence of Constable Sharma was that typical personal consumption rates for marihuana users would be two grams per day. Based upon an estimation that each of the 9,738 plants would yield two ounces of usable or saleable marihuana, he calculated that the plants could produce enough marihuana to supply an individual’s personal consumption for 758 years.

On cross examination he acknowledged that there was likely insufficient space within the grow operation to grow all of the clones discovered to maturity. Thus it can be inferred that some of the clones were being produced and sold. Clones have a market value of between $3 and $10 per plant. Constable Hawes calculated that the market value of the entire crop of 9,738 plants at maturity would be a minimum of $1,825,875 if sold by the pound, or in other words, at the wholesale level. Clearly, even if most of the clones were not grown to maturity, the operation was large, and had commercial purposes.

The operation is described in the expert opinion of Constable Hawes, adopted by Constable Sharma, as having medium to high sophistication. I accept that description. Analysis Production of Marihuana [ 16 ] The term “produce” is defined in s. 2(1) of the CDSA as follows: produce means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including (

a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce; ( production ) [ 17 ] In this case the definition set out in subsection (

b) above is relevant. [ 18 ]

Section 21 of the Criminal Code R.S.C., 1985, c. C-46 [ Criminal Code ] applies to the offences in question as a result of the application of s. 34(2) of the

Interpretation Act , R.S.C., 1985, c. I-21. [ 19 ]

Section 21 of the Criminal Code is as follows: Parties to offence

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [20] The gravamen of the offence of cultivation is active participation in the growing of prohibited plants: R. v. Ngo, 2009 BCCA301 [Ngo], at paras. 3, 52, citing R. v. Powell (1983), (BC CA), 9 C.C.C. (3d) 442 (B.C.C.A.).

However, a person maybe found guilty of production either as a principal or as a party who aids or abets the principal: Ngo, at para. 52, citing R. v. Hubble, 2002BCCA 561. In Ngo, Rowles J.A., for the court, added: [52] …In a grow op case, an accused may be found to have aided or abetted in the production of marijuana by maintaining theenvironment in which the marijuana is produced, with the purpose or intent to assist in the crime. [53] The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination ofboth.

Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of theaccused is the only reasonable inference to be drawn from the facts: R. v. Vu (T.T.), 2004 BCCA 381, at para. 31, 201 B.C.A.C. 293… [21] More recently, in R. v.

Villaroman, 2016 SCC 33, the Supreme Court of Canada stated that instructing the jury that an inferenceof guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinctand accurate way of cautioning the jury to avoid the risks attendant with drawing inferences from circumstantial evidence; however thatparticular instruction is not strictly necessary, as long as the jury is adequately instructed on the fundamental requirement that the Crownestablish the guilt of the accused beyond a reasonable doubt on the evidence adduced.

Also, a reasonable doubt, including a reasonableinference inconsistent with guilt, may arise from a lack of evidence. However the Crown is not required to disprove any possibleconjecture or speculative theory. [22] There is no direct evidence that Cristina Serban committed the production offence as a principal by cultivating, propagating orharvesting the marihuana herself.

The only direct evidence is her own, in which she denied any participation in such activities. [23] The Crown argues that she was a party to the production offence in that she aided or abetted her husband’s activities within themeaning of s. 21(1)(

b) or (

c) of the Criminal Code. The Crown relies on Ngo, which it argues is directly applicable to the facts of thiscase. [24] In Ngo, the police attended a residence in response to reports from neighbours of an attempted break-in at the residence. Onarrival two Asian males emerged. One of these males was the accused. There was a large grow operation in the basement of the house.On the basis of the whole of the circumstantial evidence available, the trial judge held that the accused resided in the home and musthave known of the grow operation being carried on within it.

The trial judge held that at the very least the accused was a party to theproduction offence by aiding the production. The Court of Appeal quoted extensively from the decision of the trial judge. A portionquoted is as follows (at para. 40 of the Court of Appeal decision): [28] A person living in a home in this context would provide the following assistance to this unlawful operation. First of all, theywould provide a veneer of normalcy. A permanent resident, a person living there all the time, would give the appearance of a normalsuburban home. The car would be parked outside the property on a daily basis.

The home was furnished as any home would be, used bythe occupants as they would use a home.

It would help allay any suspicion by neighbours or police that this was a house used to growmarijuana. [29] Secondly, a person living there would provide access to anyone who was employed to attend the details of the operation, fromsetting up the equipment to actually attending to the plants and dealing with all of the stages of growth and monitoring them, andfertilizing them, attending to the lighting and harvesting, replacing equipment that went bad or lights that needed to be replaced, and soforth. [30] Thirdly, a person living there provides a monitoring capability for the function of the equipment.

For example, if there is apower failure or something happens, that person can provide that sort of overseeing of the operation from any unexpected events whenother people might not be there. [31] Fourthly, a person living there provides a form of security, by preventing someone, for example, from trying to steal marijuana,and that is very likely what was going on when the break and enter was reported. [32] Fifthly, there clearly was a plan to produce marijuana crops in succession. That is, this appears not to have been a singleenterprise aimed at a producing a finite number of plants.

In fact, it is all the signs of an ongoing operation, harvesting plants insuccession, as they come to the flowering stage. There were a large number of empty pots and spare equipment. The crop seized by thepolice was worth about $200,000.

Subsequent crops would produce about as much revenue. [33] So whoever financed this operation, the buying of the house, the grow equipment, the venting, the labour to care for the crop andharvest it, to package it and sell it, that person or persons would not, in my view, permit someone to live in the house whom they did notknow or trust or had no involvement whatsoever with them. In fact, there really is no discernible reason for Mr. Ngo to live in that home

except as someone who is involved in assisting in some way in the growing of that marijuana. [34] The occupancy of the house, living in it from day-to-day, the ability to control access to and from the basement and the marijuana, and into the house itself, all provide Mr.

Ngo with a measure of control over the plants, even if he is not the principal owner or operating mind of the grow operation. [35] Considering all of the evidence as a whole, all of the matters that I mentioned previously, including the matters that are not present that often are present in these kinds of operations, such as documents with the accused's address on the subject house, or identity with his address there, or documents which connect him to that address in other ways, the absence of those things, as well as weighing the other matters, which tend to establish that he was a participant in this operation, after weighing all this evidence that I have considered, I conclude that the Crown has proven its case to the standard of beyond a reasonable doubt. [36] The only rational conclusion available from the evidence is that Mr.

Ngo had knowledge of the extensive grow operation in the basement and that he had a significant level of control over it, whether or not he possessed it solely for his own use and benefit or for the benefit of another person or persons. [37] As well, the only rational conclusion available from the evidence is that at the very least Mr.

Ngo was a party to the offence of producing marijuana by assisting in the task in the manners that I have already referred to. [38] I therefore find that his guilt has been proven beyond a reasonable doubt on both counts and I find him guilty on both counts. [Emphasis added.] [ 25 ] In this case, the Crown argues that the first, fourth and fifth inferences drawn by the trial judge in Ngo are also open to me on the facts of this case. [ 26 ] The Court of Appeal declined to interfere with the decision of the trial judge.

It held that the verdict on the two charges (the same charges as in the present case) were not unreasonable or unsupported by the evidence. [ 27 ] At paras. 57-58 the court noted the limited utility of comparing the evidence in one circumstantial case involving a marihuana grow operation with that in another case. [ 28 ] On the production charge, the Court of Appeal stated: [85] As to the production offence, the trial judge held that even if the appellant was not a principal or owner of the operation, at the very least he aided or abetted by providing assistance to the marijuana grower.

Having inferred from all the evidence that the appellant had knowledge of the grow op, the judge concluded that the appellant’s occupancy of the house served several important purposes in connection with the operation. That finding is supported by the Crown’s expert evidence on the manner in which those who “occupy” a marijuana grow op house are in a position to provide assistance to the grower , and in particular: (

a) Occupancy of the upper level or levels of a marijuana grow op house provides a “veneer of normalcy” to the property, avoiding suspicion from neighbours and police; (

b) The occupant or occupants of the house can provide access to those involved in actively tending to the plants; (

c) The occupant or occupants of the house can provide a “monitoring capability” in the event that any of the equipment used in the grow operation malfunctions; (

d) The occupant or occupants of the house can provide a measure of security, through their very presence, which would protect the marijuana crop from theft by others involved in the drug trade; and (

e) Continued occupancy of the house can provide a measure of consistency allowing the grower to produce marijuana on an ongoing basis with crops in succession. [Emphasis added.] [ 29 ] In this case, the Crown argues that the considerations set out in items (a), (

d) and (

e) are applicable. [ 30 ] Ms. Serban acknowledged that she did not call the police and report her husband’s activities. She said that she simply could not do that. She testified that she loved her husband and had to think about the consequences to her children, too. [ 31 ] In cross-examination Ms. Serban acknowledged that during the two or three months that the grow operation was carried on in her home, she would lock the door to the home when she departed. She said she locked it to protect her home in general, not the grow op in particular.

She agreed that she would have wished to keep the grow operation secret. [ 32 ] Ngo is distinguishable from the present case. In Ngo , as the Court of Appeal noted, the trial judge relied on the Crown’s expert evidence as to the manner in which those who “occupy” a marihuana grow op house are in a position to provide assistance to the grower in drawing various inferences about how the accused would have assisted the grower in that case, on the assumption that the accused was not himself the grower. I am unable to make the same inferences. [ 33 ] First, no such expert evidence was led in this case.

Thus, the inferences would be based on speculation, not evidence. [ 34 ] Second, the essential reasoning of the trial judge in Ngo was that the accused’s occupancy of the residence could only be for the purpose of assisting in some way with the grow operation, over which he had a measure of control. However in this case, Ms. Serban had obvious reasons unconnected with the grow operation to occupy the home: it was her residence and that of her family. It cannot be said

in this case that Ms. Serban would have “…no discernible reason …to live in that home except as someone who is involved in assistingin some way in the growing of that marijuana” as the trial judge found in Ngo. [35] Third, it is apparent that the accused did not testify in Ngo, thus the trial judge was required to assess the whole of thecircumstantial evidence in order to reach the necessary conclusions.

In Ngo, the trial judge found that the “occupancy of the house, livingin it from day-to-day, the ability to control access to and from the basement and the marijuana, and into the house itself” all provided theaccused with a measure of control over the operation, even if he was not its principal owner or operating mind. The judge found that theonly rational conclusion was that the accused had knowledge of the grow op and a significant level of control over it. However, in thiscase, I have the direct evidence of Ms. Serban that she did not participate in the grow operation directly or indirectly.

She denies assistingMr. Serban in any way. She testified that she had no key to the basement, and her husband had the only key. She testified that she did nothave access to the basement area nor did she control access to it. [36] The principles set out in the leading decisions of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 and R. v. H.(C.W.)(1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) must be applied.

On the basis of those authorities, if I were tryingthis case with a jury I would be obliged to instruct the jury as follows: 1. the rule of reasonable doubt applies to the issue of credibility; 2. you need not firmly believe or disbelieve any witness or set of witnesses; 3. if you believe the evidence of the accused, Cristina Serban, you must acquit her; 4. if you do not believe the accused's evidence, but you still have a reasonable doubt as to her guilt after considering her evidence in thecontext of the evidence as a whole, you must acquit her; 5. if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit the accused; 6. even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which youdo accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [37] Thus, the essential issue as to the production charge in the case before me is whether the evidence of the accused Ms.

Serbanraises a reasonable doubt in relation to the Crown’s allegations. [38] I am satisfied that it does. Ms. Serban’s denials of any direct or indirect involvement in the production of the marihuana areplausible. As her evidence is plausible, an acquittal must follow. [39] There was a high degree of physical separation between the upper floor, where the family clearly resided, and the basement orground floor, where the grow operation was conducted. There is no evidence that any part of the grow operation or anything associatedwith it was on the upper floor. Ms.

Serban had no need to go to the lower floor for any ordinary domestic purpose. The laundry room andthe garage were on the main floor. The main entrance door, which is the door that Ms. Serban would presumably lock on departing, wason the upper floor. [40] In its submissions the Crown noted the admitted fact that Constable Shaw observed some “female” (pink in colour) sandals atthat at the bottom of the stairs leading from the kitchen. The Crown suggests that this evidence undermines the credibility ofMs. Serban’s denial of entering the basement area. I place no weight on this evidence.

It is very limited in scope of course. There is noevidence that the shoes actually belonged to Ms. Serban. If they did, they could have been placed in the basement by Mr. Serban. Theevidence was not put to Ms. Serban on cross-examination. She testified that prior to the grow-operation being installed she occasionallyentered the unfinished basement area of the home, which was then only used for storage. If the sandals were hers, she or someone elsecould have put them there at an earlier time. There is no other evidence potentially connecting Ms.

Serban to the basement. [41] The Crown also notes that, contrary to the evidence of Ms. Serban that the entrance to the lower floor was locked at all times,the door in the upstairs kitchen area accessing the staircase leading to the basement was unlocked when the police entered the home onthe first occasion, in response to the 9-1-1 call. I place very little weight on this evidence. It would make sense for Mr. Serban to ensurethe entrances to the basement were secured at all times, particularly given the presence in the home of two young children and theSerbans’ elderly family members.

If the door was generally kept locked Ms. Serban would have no reason to regularly test the door.Thus it is reasonably possible that the door was generally kept locked but that on the occasion the police attended, it was for some reasonunlocked, and that Ms. Serban would not be aware of that. Moreover, Ms. Serban was not cross-examined on this point. [42] The Crown argues that Ms. Serban would lock the door to the residence when she departed it, and that this assisted the growoperation, by helping to keep it secure. However it is more likely that Ms.

Serban’s conduct in locking the door was simply to secure theentire house, including the residential portion. It cannot be said that locking the door was done for the specific purpose of securing thegrow operation. That was incidental. The evidence does not allow me to conclude that she ever took any steps to secure that particulararea of the residence. [43] Ms. Serban testified that she and her husband were married in Romania in 1994, when she was 17 years of age. He is sevenyears older than she is.

She described their relationship as being traditionally Romanian in that her husband makes the major decisionswith or without her consent. She testified that she could not prevent him from carrying on the grow operation, and that even her threat ofdivorce did not deter him. She testified that she did not believe in divorce, anyway. [44] I accept that Mr. Serban had the ability to and did in fact carry on the grow operation without Ms. Serban’s permission, andagainst her wishes, as she testified. [45] The Crown argues that Ms. Serban aided the operation by keeping it secret. Ms.

Serban acknowledged that if a stranger cameto the door she would not allow that person to enter the residence. This evidence can be given no weight in the circumstances. The main

entrance to the living space was on the main floor. There are obvious reasons for not permitting strangers to enter one’s residence thatare unconnected to protecting the security of the grow operation. [46] Ms. Serban did not report her husband’s activities to the police. This is really the only evidence of anything specific that she didor omitted to do in relation to the grow operation. It is reasonable to infer that she did not report her husband’s activities in order toavoid having him sent to prison, rather than to assist him to carry on the grow operation.

She testified that she loves her husband, and hadto consider the interests of their children, as well. As I have found in her evidence that the grow operation was solely carried on by herhusband is plausible, it is also plausible that she did not report the grow operation to the police for reasons other than to aid theoperation. In short, the evidence does not support a finding that she failed to report the activity for the specific purpose of aiding theoffender to commit the crime, even if that was the result. [47] The Crown does not argue that Ms.

Serban had a legal duty to report the matter to the police. [48] In R. v. Rochon, 2011 QCCA 2012, the Quebec Court of Appeal held that a mother who discovered that her son was growingmarihuana on her land when she attended there in the summer to do some camping, and told him to “get rid of it,” was not liable as aparty to the cultivation offence for not reporting her son to the police. The evidence was that she did not report her son because she didnot want to “stool on” her son and cause problems for him.

The court held that the actus reus and the mens rea of the offence is notestablished unless the evidence demonstrates that the failure to act is specifically intended to aid the offender to commit the crime. Thecourt found that there was a lack of evidence that the mother failed to report her son to the police for the purpose of aiding him in thecommission of the offence. The decision was affirmed by the Supreme Court of Canada: 2012 SCC 50. The majority of the SupremeCourt of Canada agreed with the majority of the Quebec Court of Appeal.

Fish J. stated: “…the evidence was insufficient to establish tothe required degree of certainty that the respondent had acted, or failed to act, for the purpose of aiding any person to commit the crimesmentioned in the indictment, even if that was clearly the result.” [49] On the evidence as a whole, I am unable to conclude beyond a reasonable doubt that Ms. Serban did or omitted to do anythingfor the purpose of aiding her husband’s cultivation of marihuana, or that she abetted the operation in any way. Accordingly she must beacquitted of the production charge. [50] With respect to Mr.

Serban, however, the evidence adduced by the Crown and the testimony given by Ms. Serban make it clearthat he was principally involved in the cultivation, propagation, and harvesting of the marihuana found in the basement. Accordingly, Ifind him guilty of the production charge against him. Possession of Marihuana for the purpose of trafficking [51] Under s. 2(1) of the CDSA, “possession” means possession within the meaning of subsection 4(3) of the Criminal Code. [52] “Possession” is defined in s. 4(3) of the Criminal Code as follows:

(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 shall bedeemed to be in the custody and possession of each and all of them. [53] In R. v. Fisher, 2005 BCCA 444, Mr. Justice K. Smith, for the court, after referring to s. 4(3) of the Code, commented asfollows: 20 Thus, possession may be personal, constructive, or joint. In a frequently-quoted passage in Rex v.

Hess (No. 1) (1948), (BC CA), 94 C.C.C. 48, 8 C.R. 42 [cited to C.C.C.] at 50-51 (B.C.C.A.), a case involving personal possession of a narcotic,O'Halloran J.A. said, To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of athing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control(outside public duty). When those three elements exist together, I think it must be conceded that under s. 4(1)(

d) it does not then matter ifthe thing is retained for an innocent purpose. This was said to be a correct statement of the law in Beaver v. The Queen, (SCC), [1957] S.C.R. 531, 118 C.C.C. 129[cited to C.C.C.] at 140. 21 In Rex v. Colvin and Gladue (1942), (BC CA), 78 C.C.C. 282, 58 B.C.R. 204 [cited to C.C.C.] this Court dealtwith the meaning of "consent" in the context of joint possession under a predecessor of s. 4(3)(b). In that case, the two accused personswere found with another in the other's room in which morphine was also found.

They were acquitted at trial on the basis that, althoughthey had knowledge of the presence of the drug in the room, the Crown was required to establish they had a right to exercise somemeasure of control over it and their mere acquiescence did not establish any such right. In affirming their acquittal, O'Halloran J.A. said,at 287, that . . . "knowledge and consent" cannot exist without the co-existence of some measure of control over the subject-matter. If there is the

power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which ishere called control, without which the need for their exercise could not arise or be invoked. This passage was approved in R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 4 C.C.C. (3d) 193 [cited to C.C.C.] at 198.There, a passenger, who had accepted a ride in a stolen automobile with the thief, was charged with possession of stolen property.

Hewas convicted but his conviction was quashed on the ground that the Crown had not proven joint possession because it had failed toestablish that the appellant exercised any measure of control over the automobile.

In dismissing a further appeal, Ritchie J., speaking forthe court, said, at 198, that . . . constituent and essential element of possession under [s. 4(3)(b)] of the Criminal Code is a measure of control on the part of theperson deemed to be in possession by that provision of the Criminal Code . . . 22 The meaning of control in the context of an allegation of constructive possession of a narcotic came before this Court in R. v. Smith(1973), (BC CA), 10 C.C.C. (2d) 384, [1973] 3 W.W.R. 81 [cited to C.C.C.]. The police found the accused slumpedon the floor in a public toilet cubicle.

The door to the cubicle was open. The police found heroin capsules and drug paraphernalia on thetoilet tank. The appellant had a number of needle marks in his arm, one of which was recent. In dismissing an appeal from conviction,Taggart J.A., at 390-91, Bull J.A. concurring, adopted as applicable to constructive possession the following passage taken from thereasons of Allen J.A. of the Alberta Supreme Court (Appeal Division) in R. v.

Caldwell (1972), 1972 ALTASCAD 33 , 7C.C.C. (2d) 285, [1972] 5 W.W.R. 150 [cited to C.C.C.] at 290-91: . . . while possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, whenthe goods in question are not in the physical possession of an accused, in order to constitute constructive possession it must extendbeyond quiescent knowledge and disclose some measure of control or right of control over the goods. See Bird J.A., in R. v. Bunyon (1954), (BC CA), 110 C.C.C. 119 at p. 123; Cartwright J. (as he then was), in Beaverv.

The Queen, [ (SCC), 118 C.C.C. 129], at p. 140; O'Halloran J.A., in R. v. Colvin and Gladue (1942), (BC CA), 78 C.C.C. 282, [1943] 1 D.L.R. 20, [1942] 3 W.W.R. 465; and Roach J.A., in R. v. Lou Hay Hung (1946), (ON CA), 85 C.C.C. 308, [1946] 3 D.L.R. 111, [1946] O.R. 187. Branca J.A. dissented, but only as to whether the evidence established the necessary measure of control. 23 In the instant case, the Crown did not argue that the appellant had personal possession of the cocaine.

Rather, the Crown urged thetrial judge to find constructive possession or joint possession. 24 … To establish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellantknew of the presence of the cocaine and that he had some measure of control over its location. To establish joint possession, the Crownwas required to show that someone other than the appellant had possession of the cocaine with his knowledge and consent and that hehad some measure of control over it. [54] In this case, on the Crown’s evidence and the evidence of Ms. Serban, Mr.

Serban had constructive possession of themarihuana, as he placed the marihuana in the basement for his own use and benefit. As there is no doubt that, on the evidence ofConstables Hawes and Sharma, possession of the marihuana was for the purposes of trafficking, he is guilty of the charged offence. [55] In order to establish that Ms. Serban is guilty of possession of the marihuana, the Crown must prove beyond a reasonable doubtthat she was in constructive possession of it, or in joint possession of it. [56] To establish constructive possession, the Crown must prove that Ms.

Serban knew of the presence of the marihuana and that shehad some measure of control over it. [57] To establish joint possession, the Crown must establish that Mr. Serban had possession of the marihuana with her knowledgeand consent and that she had some measure of control over it. [58] A convenient brief statement of the law with respect to the question of control in the context of constructive possession is foundat para. 20 of R. v. Wu 2010 BCCA 589 [Wu]: [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. [59] Thus, in the case of either constructive or joint possession, the Crown must establish that Ms. Serban had some power - that is, ameasure of control - over the marihuana.

It is not necessary for the Crown to prove that such power was in fact exercised. [60] The Crown relies upon Wu. In that case, a marihuana grow operation was found by the police responding to a 9-1-1 call. Theaccused Ms. Wu was residing in the home together with a married couple and their two infant children. The occupants of the homeresided on the main, ground level floor of the residence. The substantial grow operation occupied the entire second storey of theresidence.

In convicting all three adult occupants of the residence on charges of production of marihuana and possession for the purposeof trafficking, the trial judge noted as follows (quoted at para. 15 of the Court of Appeal decision): [70] …More accurately, all three accused had some measure of control or right of control over the goods sufficient to establishpossession. The occupants of the home had power or authority over the property in question and there was nothing to prevent any of theaccused from exercising control over the marihuana.

The grow operation was in the open and not the domain of any particular individualto the exclusion of the other occupants. There were no locks separating rooms from the grow operation, nor were there any keys closingoff areas from access to persons. There was no designation or signification of exclusivity such as hiding, concealing or “locking away”.

None of the circumstances revealed in the cases provided by counsel are similar to the facts before this Court. … [73] I conclude beyond a reasonable doubt that, in the case at bar, these accused persons all resided in the home and knew of the presence of the drugs. Each had some measure of control, or right to control, over the drugs found in an unsecured common area open to all the inhabitants. The grow operation was located in the common area upstairs and was not secured or hidden in any manner.

The opportunity for any of the inhabitants to exercise any degree of control over these objects was unrestrained or unrestricted in any fashion as far as the evidence that is before the court. [74] None of the accused gave evidence. [75] Furthermore, as to the matter of consent, each and every one of the accused had the power to consent and the equal power to refuse the presence of the drugs. They could not, in the circumstances, be said to be merely passively acquiescing to the presence of the drugs.

They therefore, as a corollary, could choose to exercise control of the drugs at any given time, should they wish… [Emphasis added.] [ 61 ] In the present case, however, I am unable to conclude beyond a reasonable doubt that Ms. Serban had control over the marihuana. Unlike Wu , in this case, the grow operation was confined to a separate, secure area of the residence, the basement. The evidence is not entirely circumstantial. Ms. Serban testified that she had no access and no control over the marihuana. For the reasons already stated in relation to the production charge, her evidence is plausible.

The evidence of Ms. Serban therefore raises a reasonable doubt as to whether the Crown has established that she had control over the marihuana. In the result I am not satisfied beyond a reasonable doubt that Ms. Serban had the ability to exercise a measure of control over the marihuana. [ 62 ] This is sufficient to conclude that the Crown has not established either constructive or joint possession. On the matter of joint possession, Ms.

Serban’s denial that she consented to her husband’s activities or that she had any involvement with them is sufficient to raise a reasonable doubt as to the question of consent, in the circumstances of this case. [ 63 ] Counsel for Ms. Serban argued, in the alternative, that even if Ms. Serban were to be convicted of possession simpliciter , there is no evidence that she was aware of the quantity of marihuana in her husband’s possession and whether he had any intention to traffic the marihuana.

He argues that it cannot be inferred that she was aware that the quantity of marihuana exceeded the amount that could be consumed personally. Counsel points to Ms. Serban’s evidence that Mr. Serban told her he was growing marihuana for personal use, for pain control. Given the scale of the operation (that is, occupying the whole of the lower floor of the residence) it is unlikely that she could rationally have believed this. However there is a paucity of evidence concerning or bearing upon her knowledge of the amount of marihuana that was present.

The Crown’s evidence to support trafficking rests on the expert evidence that the quantity of marihuana present was not consistent with personal consumption. If it were necessary to decide this question, I would again conclude that the Crown has not established beyond a reasonable doubt that Ms. Serban was guilty of possession for the purposes of trafficking. Conclusion [ 64 ] In the result, Romeo Serban is convicted of both offences, and Cristina Serban is acquitted of both offences. “The Honourable Mr. Justice Verhoeven”