R. v. Taylor, 2017 BCSC 1668

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Taylor, 2017 BCSC 1668 Date: 20170823 Docket: 75928-2 Registry: Kelowna Regina v. Trevor Ronald Taylor and Tyson Jade Dean Taylor Before: The Honourable Madam Justice Fitzpatrick Oral Reasons for Judgment Counsel for the Crown: Clarke Burnett Counsel for the Accused Trevor Ronald Taylor: Jon Duncan L. Sukkau, A/S Place and Date of Trial: Kelowna, B.C. August 16, 21-22, 2017 Place and Date of Judgment: Kelowna, B.C.

August 23, 2017 INTRODUCTION [ 1 ] Trevor Ronald Taylor is charged that on or about January 24, 2012: Count 1: he unlawfully produced marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”); and, Count 2: he unlawfully possessed marihuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA . [ 2 ] In January 2012, upon executing a search warrant, the RCMP found a substantial marihuana grow operation in a residence in Lake Country, B.C. [ 3 ] The central issues that were to be addressed in this trial are whether the Crown had proven that Mr.

Taylor was producing that marihuana and whether he was in constructive or joint possession of that marihuana grow operation. However, at the conclusion of the Crown’s case, the defence made a “no evidence” application that I will now address. THE FACTS [ 4 ] Most of the evidence has been introduced by an Agreed Statement of Facts. The only contested evidence, which was not terribly contentious, arises from the testimony of Cst. Michael Taylor of the RCMP. [ 5 ] The Agreed Statement of Facts is set out below. [ 6 ] On December 20, 2011, Cst.

Paul Rogers of the Lake Country RCMP commenced an investigation into, at that time, a suspected marihuana grow operation at a residence at 9818 Sonata Road, Lake Country, British Columbia (the "Sonata Residence"). [ 7 ] The Sonata residence was owned by Brian Stuart Rose. Brian Stuart Rose was Mr. Taylor's father-in-law. [ 8 ] Tyson Jade Taylor (“Tyson”) is Mr. Taylor’s son. As the style of cause indicates, Tyson was originally charged with the same offences as his father. However, these charges were stayed by the Crown in advance of this trial on August 15, 2017. [ 9 ] At all material times, Mr.

Taylor resided at 11543 Lang Court, Lake Country, B.C. (the “Lang Court Residence”).

[ 10 ] At all material times, Tyson resided at the Sonata Residence in the ground floor suite. [ 11 ] Between January 13, 2012 and January 24, 2012, Jamie Caterer and Matthew White, along with their children, resided at the Sonata Residence in the upper half of the residence. [ 12 ] The investigation, amongst other things, involved visual surveillance of the Sonata Residence between December 20, 2011 and January 24, 2012:

a) on December 20, 2011, Cst. Rogers patrolled the Sonata Residence. He observed a black 2006 Hummer H2 in the driveway leased to Tylor Herold of Vernon, BC (the “H2 Hummer”).

b) on December 21, 2011, Cpl. McKee and Cst. Willcocks patrolled the Sonata Residence and observed a black Hummer in the driveway.

c) on December 26, 2011, Cst. Rogers patrolled the Sonata Residence. He again observed the H2 Hummer in the driveway.

d) on December 29, 2011: i. at 10:00 a.m. Cpl. McKee and Cst. Marshinew conducted surveillance on the Sonata Residence; ii. at 10:01 a.m. an older red Oldsmobile registered to Emory Hunt and a white panel van, registered to Cindy Wesszer, arrived at the Sonata Residence.

Two Caucasian males were observed appearing to be waiting for something; iii. at 10:12 a.m. both Caucasian males went into the Sonata Residence through the ground level main front door (the “Front Door”); iv. at 10:51 a.m. both Caucasian males exited the residence from the Front Door and got into the white panel van and departed the residence; v. at 12:45 p.m. Cpl. McKee observed a light-colored truck (the “Truck”) in the driveway of the Sonata Residence; vi. at 1:20 p.m. the Truck left the Sonata Residence and was stopped on Highway 97 by Cst. Marshinew for a speeding offence.

The driver of the Truck was identified as Tylor Herold and the passenger of the vehicle was identified as Eric Linden Bowman; vii. at 1:35 p.m. Cpl. McKee resumed his surveillance of the Sonata Residence; viii. at 2:35 p.m. a large Budget panel truck arrived at the Sonata Residence and no one exited it; ix. at 2:39 p.m. the large Budget panel truck departed the Sonata Residence; x. at 2:58 p.m. a red Mazda MX3 (the “Red Mazda”) registered to Tyson arrived at the Sonata Residence and Tyson entered the Front Door of the Sonata Residence; and xi. at 3:50 p.m.

Tyson exited the Front Door of the Sonata Residence, got into the Red Mazda and departed the Sonata Residence.

e) on January 5, 2012: i. at 11:50 a.m. Cst. Rogers commenced surveillance of the Sonata Residence and he observed a black utility trailer as well as an enclosed trailer parked in the driveway of the Sonata Residence. The trailers were backed in and were not connected to any vehicles. The trailers were parked in front of the 3 single-car garage doors located immediately to the left of the Front Door to the Sonata Residence. The Red Mazda was parked in the driveway of the Sonata Residence; ii. at 1:13 p.m. Tyson walked out the Front Door of the Sonata Residence.

He stopped, turned around, and then walked back inside through the Front Door. Tyson had keys to the Sonata Residence and Cst. Rogers observed him locking and unlocking the Front Door to the Sonata Residence. Tyson then walked towards the Red Mazda, entered it, backed out of the driveway and departed the Sonata Residence; iii. at 1:33 p.m., a silver Dodge Ram pickup truck with a matching colour canopy (the “Dodge Ram”), registered to Tylor Herold, and the black H2 Hummer leased by Tylor Herold pulled into the driveway of the Sonata Residence.

Tyson exited the driver's seat of the H2 Hummer and got into the passenger seat of the Dodge Ram. The Dodge Ram then exited the Sonata Residence driveway; iv. Cst. Rogers observed that Peter Dorn was driving the Dodge Ram; v. at 1:45 p.m. the Red Mazda returned to the Sonata Residence and Tyson exited the driver's door, walked up to and entered the Front Door of the Sonata Residence; vi. at 1:51 p.m. Tyson exited the Front Door of the Sonata Residence and departed in the Red Mazda; vii. at 4:35 p.m. the Dodge Ram returned to the Sonata Residence.

Peter Dorn was driving the Dodge Ram and Trevor Ronald Taylor was in the passenger seat. Mr. Taylor exited the Dodge Ram passenger side door, got into the driver's seat of the H2 Hummer and backed it up so that it was parked in front of the middle garage door of the Sonata Residence. Both Mr. Taylor and Peter Dorn then walked up to the Front Door of the Sonata Residence and Peter Dorn unlocked the Front Door and both he and Mr. Taylor walked inside; viii. at 4:37 p.m. Peter Dorn exited the Front Door and walked to the Dodge Ram; and

ix. at 4:40 p.m. both Mr. Taylor and Peter Dorn exited the Front Door of the Sonata Residence and Peter Dorn locked the Front Door. Both Peter Dorn and Mr. Taylor got into an unidentified, dark-colored Oldsmobile or Pontiac vehicle and departed the Sonata Residence.

f) on January 6, 2012: i. at 12:20 p.m. Cst. Rogers commenced surveillance of the Sonata Residence. The H2 Hummer remained parked in front of the middle garage door. A silver SUV was parked nose-in near the Front Door of the Sonata Residence and both the utility and enclosed trailers were parked in the driveway of the Sonata Residence unattached to any vehicle; ii. at 12:39 p.m. the Red Mazda pulled into the driveway of the Sonata Residence and Tyson exited the driver's door, walked up to the Front Door of the Sonata Residence, unlocked it and entered it.

He appeared to be carrying a shopping bag; iii. at 12:52 p.m. Tyson exited the Front Door of the Sonata Residence, locked it, entered the driver's seat of the Red Mazda carrying what appeared to be two to three shopping bags, and then departed from the Sonata Residence in the Red Mazda; and iv. at 4:25 p.m. Cst. Rogers terminated his surveillance of the Sonata Residence.

g) on January 7, 2012: i. at 9:00 a.m. Cst. Rogers commenced surveillance of the Sonata Residence. The H2 Hummer and both the utility and enclosed trailers were parked in the driveway of the Sonata Residence unattached to any vehicle; and ii. at 10:51 a.m. Tyson exited the Front Door of the Sonata Residence, locked the Front Door of the Sonata Residence, entered the Red Mazda and departed the Sonata Residence.

h) on January 11, 2012 at 8:47 a.m. Cpl. McKee commenced surveillance of the Sonata Residence.

i) on January 11, 2012: i. at 9:12 a.m. a BC Hydro employee appeared to be reading the hydrometer at the Sonata Residence; ii. at 11:00 a.m. a black 2005 Saturn Ion (the “Saturn”) registered to Stacie J. Crowdis-Dunn arrived at the Sonata Residence and a male in his early 20’s with close-cropped hair went to the Front Door of the Sonata Residence knocked on the Front Door and then went to the west side door of the Sonata Residence; iii. at 11:03 a.m. Cpl.

McKee observed the unidentified male return to the Saturn and back it up to the rear fence of the Sonata Residence and appeared to be waiting there; iv. at 11:10 a.m. a small gray car arrived at the Sonata Residence. Mr. Taylor was observed in the passenger's seat and his wife Stephanie Taylor was the driver; v. at 11:15 a.m. Stephanie Taylor left the Sonata Residence in the gray Mercedes and Mr. Taylor was standing outside of the Sonata Residence talking on a cell phone. The unidentified male from the Saturn was standing with Mr. Taylor; vi. at 11:20 a.m. Mr.

Taylor unlocked the Front Door of the Sonata Residence and went inside along with the unidentified male from the Saturn. Shortly thereafter, Stephanie Taylor returned to the Sonata Residence in the gray Mercedes. Mr. Taylor walked out of the Front Door of the Sonata Residence and got into the passenger's seat of the gray Mercedes. Mr. Taylor remained in the gray Mercedes with Stephanie Taylor until 11:52 a.m. when Stephanie Taylor left the Sonata Residence in the gray Mercedes and Mr. Taylor entered the Front Door of the Sonata Residence.

The unidentified male went back to the Saturn and left the Sonata Residence. Mr. Taylor remained inside the Sonata Residence; vii. at 12:02 p.m. the Saturn returned to the Sonata Residence and the unidentified male went into the Front Door of the Sonata Residence. A few seconds later, the unidentified male exited the Front Door of the Sonata Residence, got into the driver's side of the Dodge Ram and appeared to be waiting; viii. at 12:06 p.m. Mr. Taylor exited the Front Door of the Sonata Residence, and placed his jacket in the passenger side of the Dodge Ram. Mr.

Taylor then went back to the Front Door of the Sonata Residence, locked the door, and walked back to the passenger's side of the Dodge Ram and entered it; and ix. at 12:08 p.m. the Dodge Ram departed the Sonata Residence with Mr. Taylor in the passenger seat and the unidentified male in the driver's seat. Cpl. McKee terminated his surveillance of the Sonata Residence at that time.

j) on January 12, 2012: i. at 9:30 a.m. Cpl. McKee attended the Sonata Residence to conduct surveillance and he observed the Dodge Ram parked in front of the Sonata Residence and a white panel van, registered to Shane Butler, parked on the east side of the Sonata Residence; ii. at 11:00 a.m. the H2 Hummer arrived at the Sonata Residence. Mr. Taylor exited the passenger seat of the H2 Hummer. An unidentified white heavyset male was observed as the driver. Mr. Taylor went to the Dodge Ram then to the Front Door of the Sonata Residence. He unlocked the Front Door of the Sonata Residence and entered it.

The unidentified male backed the H2 Hummer up in front of the garage, parked it, and then walked to the Dodge Ram and placed something into the back of it; iii. at 11:07 a.m. the unidentified male entered the Sonata Residence through the Front Door; and iv. at 11:08 a.m. Mr. Taylor and the unidentified male exited the Front Door of the Sonata Residence, got into the Dodge Ram and

departed the Sonata Residence. At 4:00 p.m. Cpl. McKee terminated his surveillance of the Sonata Residence.

k) on January 13, 2012: i. at 9:20 a.m. Cst. Willcocks commenced surveillance at the Sonata Residence and he observed the white panel van registered to Shane Butler parked in the driveway of the Sonata Residence; ii. at 10:11 a.m. two vehicles arrived at the Sonata Residence together. One was a Hyundai SUV (the “Hyundai SUV”) registered to Jamie Caterer and the other a red Ford Ranger (the “Ford Ranger”) registered to Matthew White. An unidentified female was driving the Hyundai SUV and an unidentified heavier set male was driving the Ford Ranger.

The unidentified female and the unidentified male began carrying household items including a television and a table into the Sonata Residence; iii. at 10:35 a.m. the unidentified female departed the Sonata Residence in the Hyundai SUV; iv. at 10:45 a.m. Cst. Willcocks terminated his surveillance of the Sonata Residence; v. at 10:59 a.m. Cpl. McKee attended the Sonata Residence and commenced surveillance. Cpl. McKee observed both the Ford Ranger and the Hyundai SUV parked on the east side of the Sonata Residence.

The H2 Hummer was parked at the garage of the Sonata Residence and the Dodge Ram was parked in front of the Sonata Residence; vi. at 12:35 p.m. a white cable company truck arrived at the Sonata Residence, a male exited it with a clipboard in his hand; vii. at 2:07 p.m. the unidentified female departed in the Hyundai SUV; and viii. at 2:30 p.m. Cpl. McKee terminated his surveillance of the Sonata Residence.

l) on January 14, 2012: i. at 8:40 a.m. Cst. Willcocks commenced surveillance at the Sonata Residence and he observed the Ford Ranger and the white panel van registered to Shane Butler parked at the Sonata Residence; ii. at 11:29 a.m. Tyson exited the Front Door of the Sonata Residence and got into the Red Mazda and departed the Sonata Residence; iii. at 11:54 a.m. Cst. Willcocks terminated his surveillance of the Sonata Residence and at 1:26 p.m. Cst.

Willcocks resumed his surveillance of the Sonata Residence; iv. at 1:30 p.m. a large 3 or 4 ton Purolator moving van backed into the driveway of the Sonata Residence and a grey 2008 Ford Ranger (the “Grey Ford Ranger”) registered to Cody McWatters was observed parked on the street in front of the Sonata Residence; v. at 1:57 p.m. numerous individuals were observed moving tables, televisions, chairs, and boxes into the Sonata Residence.

The moving of the items into the Sonata Residence was finished approximately 15 minutes after it started; vi. at 2:08 p.m. an unidentified male opened the Front Door of the Sonata Residence and walked to the left side (west side) of the Sonata Residence and looked at the hydro meter. The male was there for approximately 10 seconds and then went back inside the Front Door of the Sonata Residence. Cst. Willcocks then observed approximately 6 to 8 people standing in the doorway of the Front Door of the Sonata Residence as the door was open.

They were observed standing around there for about 4 to 5 minutes; vii. at 2:15 p.m. Mr. Taylor arrived at the Sonata Residence in a gold-colored SUV. Mr. Taylor and an unidentified male driver of the gold-colored SUV walked to the Front Door of the Sonata Residence, opened the door, and entered without knocking and left it open. Approximately 1 minute later, Cst. Willcocks heard a male's voice yell "Turn it all off"; viii. at 2:18 p.m. Mr. Taylor exited the Front Door of the Sonata Residence, got into the passenger's side of the gold-colored SUV and the unidentified male got into the driver-side. Mr.

Taylor and the unidentified male then departed the Sonata Residence in the gold- colored SUV; ix. at 2:40 p.m. an unidentified male walked from the Sonata Residence to the Grey Ford Ranger parked on the street in front of the Sonata Residence and departed in it; x. at 3:12 p.m. a white SUV arrived at the Sonata Residence and parked in the driveway. An unidentified female exited the driver's door of a white SUV and walked to the Front Door of the Sonata Residence with a small child. An unidentified male came to the Front Door and was observed talking with the unidentified female.

The unidentified female and the small child and the unidentified male then went inside the Sonata Residence; and xi. at 3:40 p.m. Cst. Willcocks terminated his surveillance of the Sonata Residence.

m) on January 20, 2012: i. at 10:47 a.m. Cst. Rogers commenced surveillance of the Sonata Residence. Cst. Rogers observed the H2 Hummer parked in front of the middle garage door of the Sonata Residence and a white H1 Hummer (the “H1 Hummer”) registered to Aaron Cottrell was parked in front of the Sonata Residence. Cst. Rogers was familiar with the H1 Hummer as it used to be registered to a construction company of Mr. Taylor's called Rock Haven Developments. The Saturn was parked on the east side of the Sonata Residence.

The Ford Ranger was parked next to the Saturn; ii. at 11:47 a.m. an unidentified male exited the Sonata Residence from somewhere on its west side and walked to the H1 Hummer and got into the driver's seat. At 11:49 a.m. a second unidentified male exited the Sonata Residence from the west side and walked to the H1

Hummer and got into the passenger seat. The H1 Hummer backed up and departed the Sonata Residence; iii. at 12:11 p.m. a silver Mercedes SUV registered to Stephanie Taylor and being driven by her arrived at the Sonata Residence. Mr. Taylor was observed in the passenger seat. Mr. Taylor and Stephanie Taylor talked for a few minutes and then Mr. Taylor exited the Mercedes SUV and Stephanie Taylor departed the Sonata Residence in the Mercedes SUV; iv. at 12:17 p.m. Mr. Taylor walked to the Front Door of the Sonata Residence, unlocked it, and opened it the entire way and just stood on the porch outside.

Moments later, Mr. Taylor entered the Front Door of the Sonata Residence, paused for a few seconds and then closed it behind him; v. at 12:25 p.m. the H1 Hummer and a silver Toyota Tacoma arrived at the Sonata Residence and Mr. Taylor opened the Front Door to the Sonata Residence prior to the vehicles coming to a full stop. A male passenger from the H1 Hummer passed to Mr. Taylor a McDonald's restaurant bag and Mr. Taylor went back into the Sonata Residence followed by two unidentified males from the H1 Hummer as well as a single unidentified male from the silver Toyota Tacoma; and vi. at 1:17 p.m. Cst.

Rogers terminated his surveillance of the Sonata Residence. Mr. Taylor remained inside the Sonata Residence between 12:17 p.m. and 1:17 p.m.

n) on January 21, 2012: i. at 11:32 a.m. Cst. Rogers commenced surveillance at the Sonata Residence. Cst. Rogers observed the H2 Hummer remained parked and backed up in front of the middle garage door of the Sonata Residence. It was now covered with snow. The Dodge Ram was parked in the driveway in front of the Sonata Residence. The Ford Ranger was parked on the west side of the Sonata Residence; ii. at 11:49 a.m. Tyson and a young female exited the Front Door of the Sonata Residence. Both Tyson and the young female got into the Red Mazda and it departed the Sonata Residence; and iii. at 1:00 p.m. Cst.

Rogers terminated his surveillance of the Sonata Residence. [ 13 ] The remaining agreed facts relate to the events by which the RCMP detained Mr. Taylor and executed search warrants for both the Sonata Residence and the Lang Court Residence, resulting in the arrest of Mr. Taylor on January 24, 2012, as follows:

a) at 9:07 a.m. Cst. Rogers held a briefing at the Lake Country RCMP detachment regarding the plan to execute search warrants obtained pursuant to s. 11 of the CDSA for the Sonata Residence and the Lang Court residence. One warrant was issued for the Lang Court Residence. One warrant was issued for the Sonata Residence;

b) present at the briefing were Cst. Taylor, Cpl. Roberts, Cst. McInnis, Cst. Willcocks, Sgt. Rempel, Cst. Caley, Cst. Marshinew, Cst. Ricioppo and Cpl. McKee;

c) at 1:42 p.m. Cst. Rogers, Cst. Taylor and Cst. McInnis attended the Lang Court Residence. Mr. Taylor opened the upper level patio door of the Lang Court Residence and asked Cst. Rogers "what was up". Cst. Rogers asked Mr. Taylor to come down to the front door of the Lang Court Residence;

d) at 1:43 p.m. Mr. Taylor opened the front door of the Lang Court Residence and Cst. Rogers asked if anybody else was inside the Lang Court Residence. Mr. Taylor said "no", then said, his “painter" was in the Lang Court Residence. Mr. Taylor then yelled for Peter Dorn to come to the front door of the Lang Court Residence. Peter Dorn immediately presented himself to the front door of the Lang Court Residence;

e) as both Mr. Taylor and Peter Dorn stood on the front step, Mr. Taylor asked Cst. Rogers why police were present. Cst. Rogers observed Cst. Taylor detain Mr. Taylor for production and read Mr. Taylor his Charter rights and caution;

f) shortly after 1:44 p.m. Cst. McInnis and Cst. Ricioppo departed the Lang Court Residence with the warrant to search the Sonata Residence and traveled to the Sonata Residence;

g) Cst Taylor and Cst. Marshinew then escorted Mr. Taylor to a marked police car;

h) at 1:55 p.m. Cst. Rogers entered the Lang Court Residence;

i) at 2:00 p.m. Cst. Rogers exited the Lang Court Residence and observed Mr. Taylor seated in the rear of Cst. Marshinew's police car. Mr. Taylor asked Cst. Rogers to come over to the police car. Cst. Rogers walked over to Mr. Taylor who said to Cst. Rogers that “in his murse he had a bunch of cash that he took out of a CIBC account to pay bills. It was for his wife to pay bills”. Mr. Taylor also said something to the effect, "it's not proceeds of crime". Mr.

Taylor then spoke about the Sonata Residence and said something to the effect, "the only reason why you guys have seen me there is I manage that house and just rented out the upstairs, rented it to a young girl, she's clean just like my wife";

j) at shortly before 1:55 p.m., Cpl. McKee, Cst. Ricioppo, Cst. McInnis, Cpl. Roberts and Cst. Caley arrived at the Sonata Residence to execute the search warrant for it;

k) at 1:55 p.m. Cpl. McKee knocked on the main front door of the Sonata Residence and announced in a loud voice that it is the police and they have a search warrant;

l) in response to Cpl. McKee’s knocking, Jamie Caterer came out on a back deck at the northeast corner of the Sonata Residence. She was told to come to the Front Door and open it. She does so and Cpl. McKee and Cst. McInnis enter the Front Door; and

m) no one is located by Cpl. McKee or Cst. McInnis in the ground floor of the Sonata Residence.

[ 14 ] Cpl. Knowles, a Forensic officer, prepared a scale drawing of the main ground floor of the Sonata Residence as it appeared on January 24, 2012, a copy of which was attached as

Schedule “A” to the Agreed Statement of Facts. Further agreed facts arising from the search of the Sonata Residence are as follows:

a) Cpl. Knowles took 286 photographs of the exterior, ground floor, and upper floor of the Sonata Residence depicted in photographs SPK No. 3573 to SPK No. 3859, copies of which were attached as

Schedule “B” to the Agreed Statement of Facts;

b) Cpl. McKee entered the garage through an unlocked door as depicted in photographs SPK Nos. 3729, 3730 and 3732 (the “Garage to Living Room Door”), from the interior of the living room located on the ground floor of the Sonata Residence. The Garage to Living Room Door had a deadbolt and was lockable on the garage side using a key;

c) Directly north of the Garage to Living Room Door was a door leading to the furnace room, as depicted in photographs SPK Nos. 3733 and 3734 (the “Garage to Furnace Room Door”). The Garage to Furnace Room Door had a deadbolt and was unlockable on the garage side using a key.

d) directly north of the Garage to Furnace Room Door, on the north wall of the Garage was a third door, as depicted in photographs SPK Nos. 3727 and 3749. This door had a deadbolt and was unlockable on the garage side using a key;

e) directly west of the Garage to Furnace Room Door, on the west wall of the garage was a fourth door, also as depicted in photograph SPK No. 3727 (the “Garage to Side Entry Room Door”). The Garage to Side Entry Room Door had a deadbolt and was unlockable on the garage side using a key;

f) parked in the garage and depicted in photograph SPK No. 3725 was a grey Aston Martin registered to Eric Bowman. Also located in the garage was a vacuum cleaner;

g) Cpl. McKee walked through the garage towards the northwest corner of the garage. He then opened the Garage to Side Entry Room Door and entered the side entry room. Cpl. McKee says that the Garage to Side Entry Room Door was unlocked. There were no signs showing forced entry of the Garage to Side Entry Room Door;

h) Cpl. McKee then walked through the side entry room through an unlocked door leading from the side entry room into a room containing clone plants (the “Clone Plants Room). The door leading from the side entry room to the Clone Plants Room as depicted in photographs SPK Nos. 3692 and 3700 had a deadbolt and was lockable using a key from the side entry room side;

i) the side entry room is shown in photographs SPK Nos. 3707 and 3708. The Garage to Side Entry Room Door is depicted in photograph SPK No. 3708 as the door to the left in the photograph. The door to the right in the photograph, the one with red fabric draped over it, leads to the outside from the side entry room. This door is depicted from the outside in photographs SPK Nos. 3592 and 3600 and is the door appearing immediately under the north west upper deck;

j) within the Clone Plants Room, amongst other things, 1,103 clone plants were discovered as depicted in photographs SPK Nos. 3692 and 3693;

k) Cpl. McKee walked through the Clone Plants Room through another door leading directly east into a room containing mother marihuana plants (the “Mother Plants Room”). Within the Mother Plants Room, 99 mature marihuana plants were discovered as depicted in photographs SPK Nos. 3681 through and inclusive to 3690. The door between the Clone Plants Room and the Mother Plants Room was not lockable;

l) on the east side of the Mother Plants Room was a door leading to a room containing a desk, a computer and a credenza (the “Computer Room”). The Computer Room is depicted in photographs SPK Nos. 3675 and 3676. The door between the Mother Plant Room and the Computer Room (the “Computer Room Door”) had a deadbolt and was unlockable using a key from the Computer Room. According to Cpl McKee, the Computer Room Door was locked;

m) the Computer Room Door had no door handle on either side, as depicted in photograph SPK No. 3688;

n) there are four separate entrances to the Sonata Residence. The Front Door as depicted in photograph SPK No. 3608, a west lower side entrance leading to the side entry room, as depicted in photograph SPK No. 3600, a northeast side entrance leading to second floor as depicted in photograph SPK No. 3581 and a northwest side entrance leading to the second floor as depicted in photograph SPK No. 3583;

o) both the clone marihuana plants and the mother marihuana plants were healthy and appeared well cared for;

p) during the search of the Sonata Residence, Cst. Ricioppo seized from the couch in the living room of the ground floor, under the main stairwell of the Sonata Residence, a Day-Timer that included documents that belonged to Tyson. Among the documents within the Day-Timer were his birth certificate issued April 1, 2008, a copy of which was attached as

Schedule “C” to the Agreed Statement of Facts, and his Care Card, a copy of which was attached as

Schedule “D” to the Agreed Statement of Facts;

q) in a large safe in the closet of the living room of the ground floor of the Sonata Residence, as depicted in photograph SPK No. 3657, was a shotgun registered to Tyson;

r) an Overwaitea Food Group paystub in the name of Tyson, a copy of which was attached as

Schedule “E” to the Agreed Statement of Facts, was located on top of a dresser in the master bedroom, as depicted in photograph SPK No. 3627, on the ground floor of the Sonata Residence;

s) within the same master bedroom on the ground floor, police observed male clothing in the bedroom closet and in two dresser drawers;

t) the ground floor suite was clean and tidy and appeared to be routinely lived in;

u) the second floor suite of the Sonata Residence was not physically separated from the ground floor suite and had 3 bedrooms, 2 bathrooms, a living area and a kitchen;

v) at the top of the main staircase leading from the ground floor to the second floor, construction was ongoing to place a door blocking access to the ground floor of the Sonata Residence as depicted in photographs SPK Nos. 3765 to 3767. No door had yet been installed;

w) from a drawer in the kitchen in the upstairs of the Sonata Residence, a Residential Tenancy Agreement listing Mr. Taylor as the landlord for the Sonata Residence, was seized, a copy of which was attached as

Schedule “F” to the Agreed Statement of Facts;

x) Cpl. Knowles located one fingerprint in the area of the marihuana grow-op, on one of the fluorescent light ballasts. This fingerprint was examined by Cpl. Knowles who determined it was not a match to Mr. Taylor or Tyson;

y) Jaime Caterer resided, along with her husband, Matthew Lucas White, and 2 children, Ryder and Josh, in the second floor of the Sonata Residence;

z) Jaime Caterer and her husband and children moved into the second floor of the Sonata Residence on January 13, 2012; aa) Jaime Caterer and her husband, Matthew White, rented the second-floor suite of the Sonata Residence from Mr. Taylor; bb) according to Jamie Caterer, Mr.

Taylor held himself out to her and Mathew White as being the landlord; cc) according to Jamie Caterer, Tyson lived in the ground floor suite; dd) the laundry room located on the ground floor, depicted in photograph SPK No. 3659 and 2660, was shared by Jamie Caterer and Tyson; ee) the entrance to the second floor of the Sonata Residence used by Jamie Caterer and her husband was through a porch with a door in the northeast corner of the upstairs of the Sonata Residence as depicted in photograph SPK No. 3581; ff) Jamie Caterer denied in a statement given to Cst.

Caley on January 24, 2012 having any knowledge, care, or control over the marihuana plants discovered on the ground floor of the Sonata Residence; gg) according to Jaime Caterer, she did not smell vegetative marihuana at the Sonata Residence and she does not know what it smells like; hh) Jamie Caterer was told by Mr. Taylor that neither she nor her husband could park any of their cars in the garage of the Sonata Residence; ii) according to Jamie Caterer, her husband, Matthew White, only met Mr. Taylor through them moving into the upstairs of the Sonata Residence; and jj) according to Cst.

Ricioppo, the officer tasked with seizing exhibits from the Sonata Residence, upon entering the ground floor of the Sonata Residence, she noted a mild to moderate odour of vegetative marihuana. [ 15 ] Cst. Ricioppo forwarded a sample of one of the clone plants from the Clone Plants Room and a sample from one of the mother plants from the Mother Plants Room to the Health Canada laboratory in Burnaby, British Columbia for the purpose of analysis.

The Health Canada laboratory confirmed that the samples were cannabis (marihuana), being controlled substances within the meaning of the CDSA . [ 16 ] Finally, it is agreed that, if Mr. Taylor possessed the marihuana clone plants and the marihuana mother plants, he possessed them for the purpose of trafficking. [ 17 ] Cst. Taylor was part of the team that detained and eventually arrested Mr. Taylor at the Lang Court Residence commencing around 1:42 p.m. on January 24, 2012. Cst. Taylor advised Mr.

Taylor that he was being detained for production of marihuana and that search warrants were being executed at the Sonata Residence and Lang Court Residence. [ 18 ] Mr. Taylor then made certain statements to the RCMP which were ruled admissible after a voir dire at this trial. Mr. Taylor responded “yeah Mike [meaning Cst. Taylor], I know how it works”. Moments later, while still in handcuffs and completely unsolicited, Mr. Taylor told the RCMP officers: You guys want me that bad that you are going to pin Sonata on me for a guy I know who is doing whatever he is doing.

RELEVANT LAW [ 19 ] As stated above, the charges include both production of marihuana and possession of marihuana for the purpose of trafficking. [ 20 ] The central issues that arise in respect of both counts, as noted above, are: (

a) whether Mr. Taylor “produced” the marihuana by cultivating and propagating the marihuana, as defined by the CDSA, s. 2(1); and (

b) whether Mr. Taylor was in “possession” of the marihuana, as defined by the Criminal Code , R.S.C. 1985, c. C-46, s. 4(3).

[21] No issues arise in respect of the identification of Mr. Taylor or that the substances tested were in fact marihuana.

(1) Production [22] On the matter of the first Count, s. 7(1) and (2) of the CDSA provides: 7

(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule … II …

(2) Every person who contravenes subsection (1) …. (

b) if the subject matter of the offence is cannabis (marihuana), is guilty of an indictable offence … [23] The CDSA, s. 2(1)(

b) defines “produce” as meaning: …, in respect of a substance included in any of Schedules I to V, to obtain the substance by any method or process including … (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwiseobtained, … [24] The court in R. v. Busby (1972), (YK CA), 7 C.C.C. (2d) 234 (YKCA) discussed the actus reas of theoffence, being that “cultivation” means to bestow labour and attention upon land in order to raise crops.

I agree that there is little doubthere but that someone or some persons were “cultivating” marihuana in the Sonata Residence and also “propagating” it, given both themother and clone plants located there. [25] The mens rea elements of the offence of “production” must involve knowledge and also, either control or the aiding or abettingof the main perpetrator: R. v. Rochon, 2011 QCCA 2012, aff’d 2012 SCC 50.

The Quebec Court of Appeal in Rochon stated, citingMacFarlane, Frater & Proulx, Drug Offences in Canada, 3d ed. (Aurora, Ont.: Canada Law book, November 2009) No. 9.580-9.900 at 9-11-9-19: 11 The elements constituting the mens rea for the offence of marijuana production (subsections 7(1) and (2) of the Controlled Drugs and Substances Act1) are the following: knowledge that the cultivation, propagation, or harvest of the substance is taking place, andknowledge of the nature of the substance produced.

(2) Possession for the Purpose [26] On the matter of the second Count, s. 5(2) and (3) of the CDSA provides: 5(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule … II ….

(3) Every person who contravenes subsection (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule … II, is guilty of an indictableoffence … ; [27] The definition of “possession” in the CDSA means possession within the meaning of the Criminal Code: CDSA, s. 2(1). TheCriminal Code defines “possession” as follows: 4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of anotherperson; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [28] The Crown does not allege that Mr. Taylor was in personal possession of the marihuana; rather, the Crown alleges that Mr.Taylor was:

a) in constructive possession of the marihuana located in the Sonata Residence: Criminal Code, s. 4(3)(a)(

i) and (ii); or

b) in joint possession of the marihuana with the other occupant of the Sonata Residence (i.e. his son, Tyson): Criminal Code, s. 4(3)(b). [29] Both parties agree on the proper approach to determine whether an accused had constructive or joint possession of the drugs. InR. v. Pham (2005), (ON CA), 77 O.R. (3d) 401 (C.A.), aff’d 2006 SCC 26, the court stated: [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.

Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.). [16] In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure of controlon the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d)724; R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, (ON CA), [1985] O.J. No. 143, 20C.C.C. (3d) 440 (C.A.). [30] The decision in R. v. Ngo, 2009 BCCA 301 is instructive on this application in a number of ways.

In particular, the courtconfirms the comments in Pham regarding the elements of mens rea of the offence of possession for the purpose: [51] To succeed in a prosecution for the offence of possession of marijuana for the purpose of trafficking, the Crown must provethat an accused has both knowledge and control of the marijuana. The definition of “possession” in s. 4(3) of the Criminal Code isincorporated into the CDSA by s. 2(1) of that Act. Section 4(3) of the Criminal Code identifies three forms of possession and under eachform in the definition, knowledge and control are the key elements: R. v.

Vu (S.V.), 2002 BCCA 659 at para. 17, 179 B.C.A.C. 262;Bauer, at para. 23. With respect to the possession for the purpose of trafficking count, the issue on appeal is whether, on the whole ofthe evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. [Emphasis added.] [31] Accordingly, in both types of possession alleged here, the Crown must establish that Mr. Taylor had knowledge of the actualpossession by the other person(s). Further, it must be proven that Mr. Taylor:

a) exercised control or had the ability to exercise control over the marihuana while it was in the possession of the other person(s)(constructive possession); or

b) consented to the marihuana being within his and another person(

s) joint control and had a measure of control over the marihuana(joint possession).

(3) Circumstantial Evidence [32] The Crown’s case is not based on any direct evidence, but rather the circumstantial evidence which I have set out above and willdiscuss below. [33] The decision in Ngo is also instructive as to the proper approach by the court when faced with only circumstantial evidence andwhen addressing the inferences that are said to arise or not arise based on that evidence: [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. However, the criminal standard of proof is not to be applied to each individual piece of evidence. In that regard, what was said bySopinka J. in R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193, is helpful (at para. 36): The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion iswrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing ofindividual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual members of the juryto rely on the same facts in order to establish guilt.

The law is clear that the members of the jury can arrive at their verdict by differentroutes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. [Internal citations omitted.] [54] In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of factmust not examine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, takentogether, establishes the guilt of the accused and is inconsistent with any other rational conclusion: R. v.

G.L.J., [1997] B.C.J. No. 2994at para. 29 (C.A.); R. v. Aylward (1993), (BC CA), 36 B.C.A.C. 14, at paras. 5-7. [55] As to competing inferences from circumstantial evidence that might be open to a trial judge, the observation of McEachernC.J.B.C. in R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at para. 41, is apposite: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. ... [34] Accordingly, in order to meet its burden at this trial, it is necessary for the Crown to prove that production and possession of themarihuana by Mr. Taylor, both arising from his knowledge and control, is the only reasonable inference to be drawn from the provenfacts: see also R. v. Cooper, (SCC), [1978] 1 S.C.R. 860; R. v. Charemski, (SCC), [1998] 1 S.C.R. 679at paras. 3-4.

(4) Aiding and Abetting [35] In addition, the Crown contends that, even if Mr. Taylor was not a principal in relation to the production and possession of themarihuana, he is equally culpable as a party who aided and abetted others, including his son, Tyson: Criminal Code, s. 21(1)(

b) and (c).

[36] The Crown and defence agree that the burden is on the Crown to prove, beyond a reasonable doubt, that the person’s intent wasto aid or abet the main perpetrators. It is not sufficient to prove that the accused knew of the crime. In addition; mere presence at thescene of the crime and passive acquiescence are not sufficient. Failure to act must be shown to be done for the purpose of aiding a personto commit the crime: see Rochon (QCCA) at paras. 41-44; Rochon (SCC) at para. 1; R. v.

Dunlop, (SCC), [1979] 2S.C.R. 881 at 891-92. [37] That said, the Crown relies on the comments of the court in Ngo in relation to aiding and abetting in the context of a growoperation case, such as this: [52] As previously noted, in Powell, Esson J.A. held that possession is not an included offence in cultivation, and that thegravamen of the offence of cultivation is active participation in the growing of prohibited plants. See also Vu (S.V.), at para. 27.

However, an individual may be found guilty of production as either a principal, or as a party who aids or abets the principal: Hubble, atparas. 10, 15; Criminal Code s. 21. In a grow op case, an accused may be found to have aided or abetted in the production of marijuanaby maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the crime. [Emphasis added.] NO EVIDENCE APPLICATION

(1) The Applicable Test [38] Both the Crown and defence agree that the applicable test is found in R. v. Arcuri, 2001 SCC 54, as applied in R. v. Qiang, 2013BCSC 1597. [39] In Qiang, Madam Justice Gray was also considering a “no evidence” application after the conclusion of the Crown’scircumstantial case. The accused had been found on the site of the grow operation while the police were executing a search warrant. [40] I would adopt Gray J.’s discussion of the applicable test to be applied: [7] The first question is what test the court must apply to the no-evidence motion.

Counsel agree that the court must apply the testin R. v. Arcuri, 2001 SCC 54. That case considered the test to be applied by a preliminary inquiry judge, but that test is the same as thatasked by a trial judge considering a directed verdict where there is a jury, and the same as that asked by a trial judge considering a no-evidence motion when the trial proceeded by judge alone. The test is "whether or not there is any evidence upon which a reasonable jury,properly instructed, could return a verdict of guilty." [8] Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward.

If there is direct evidence asto every element of the offence charged, the no-evidence motion must fail because the jury could accept the direct evidence and find theaccused guilty. [9] Application of the test is more difficult in a case turning on circumstantial evidence. [10] Chief Justice McLachlin wrote as follows in R. v. Arcuri at paragraph 23: 23 The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of theoffence.

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown hasnot advanced direct evidence – may reasonably be inferred from the circumstantial evidence.

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

It is any fact from the existence of which the trier of fact may infer theexistence of a fact in issue”); McCormick on Evidence . . . at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even ifthe circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge musttherefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asksthe jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused isguilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, couldreasonably support an inference of guilt. …. [30] The third preliminary issue I wish to address goes to the nature of the court's approach on this no-evidence motion. In relyingon circumstantial evidence, the Crown must establish beyond a reasonable doubt that the guilt of the accused is the only rationalinference to be drawn from the circumstantial evidence. That is discussed in R. v. Vu (T.T.), 2004 BCCA 381, at paragraph 31, and in R.v.

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

In myview, that is what Chief Justice McLachlin meant in the last sentence that I quoted from R. v. Arcuri, which was that "the judge only askswhether the evidence, if believed, could reasonably support an inference of guilt."

[33] The evidence could not reasonably support an inference of guilt unless guilt would be the only rational inference to be drawnfrom the circumstantial evidence. [My emphasis in Arcuri above.] [41] After finding that the evidence did permit a number of inferences to be drawn (para. 73), the Court in Qiang found thatessentially, the case against the accused was that they were on the site of the grow operation and that they ran away from the police andthe greenhouses (para. 82). The Court noted that mere presence at the scene of a crime is not sufficient (para. 75). At paras. 76-77, theCourt distinguished R. v.

Jackson, 2007 SCC 52 , [2007] 3 S.C.R. 514 where the accused was present, but there were also otherfactors supporting a conviction (Jackson at paras. 3, 9). [42] In the result, the Court in Qiang found that other rational inferences were available from the circumstances, including that theaccused were in the area for recreational or logging purposes (para. 83). They were acquitted.

(2) Discussion [43] There is little doubt that the application of the above test requires a meticulous consideration of the specific facts before thecourt. I am cognizant of the fact that a “comparative” analysis of other cases is usually of little assistance in these types of cases: see R. v.Munif, 2009 BCCA 451 at para. 12; R v. Wu, 2010 BCCA 589 at para. 34.

Even so, both the Crown and defence referred me to variousdecisions in support of their respective positions. [44] In addition, it is trite law that the court is to consider the totality of the admissible evidence and any inferences that arise, ratherthan conduct a separate and distinct consideration of each particular piece of evidence. In R. v. Carpio, 2012 BCCA 484, the court stated: [20] In R. v. Stewart, (SCC), [1977] 2 S.C.R. 748, the Supreme Court of Canada reiterated the proposition thateach piece of evidence is not to be analyzed separately, out of context with the whole of the evidence (at 759).

At 761, the Court quotedCôté v. The King (1941), (SCC), 77 C.C.C. 75 (S.C.C.), which stated at 76: It may be, and such is often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; butall the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that mayconstitute a proper basis for conviction. [21] In my view, this is exactly what Mr. Carpio is asking us to do. He identifies each piece of evidence relied on by the trial judgeand proffers some other explanation for the circumstance.

This is not the correct approach to analyzing the reasons. The reasons must beconsidered as a whole in the context of the entire body of admissible evidence. [45] The Crown and the defence have distinctly different

interpretations as to what inferences, if any, arise from all of the evidence. [46] With those general comments in mind, I turn to the issue of whether the totality of the evidence, as agreed and accepting Cst.Taylor’s testimony, is reasonably capable of supporting the allegation that Mr. Taylor had both control and knowledge of the marihuanagrow operation in the Sonata Residence. I will then address whether the Crown has met its burden in establishing that the evidence isreasonably capable of supporting that the only reasonable inference that arises is that Mr. Taylor was involved in this marihuana growoperation. (

a) Control [47] The detailed results of the surveillance certainly show a substantial amount of traffic to and from the Sonata Residence byvarious persons, including Mr. Taylor, Tyson and other individuals, including Mr. Taylor’s wife and a host of unidentified males. Thereis also a variety of vehicles that are regularly seen coming and going from the Sonata Residence. [48] The Crown relies heavily on the surveillance evidence concerning Mr. Taylor’s attendances at the Sonata Residence. [49] Mr.

Taylor was seen at the Sonata Residence on five separate occasions during the surveillance from December 20, 2011 toJanuary 24, 2012. In all instances, Mr. Taylor is in the company of a male person or persons, mostly with unidentified males or at onetime, with Peter Dorn. It is not clear whether these male persons are the same or different ones, although these visits indicate that variousand different vehicles are associated with these males persons. [50] The Crown argues as follows:

a) January 5: Mr. Taylor arrived as a passenger in a vehicle (the Dodge Ram) being driven by Peter Dorn at 4:35 p.m. They entered byPeter Dorn unlocking the Front Door. Mr. Taylor was inside the Sonata Residence for five minutes, leaving at 4:40 p.m. with Peter Dornin another vehicle (Oldsmobile or Pontiac). The Crown argues that it is reasonable to assume that Mr. Taylor gave Peter Dorn the key tothe Front Door, however, there is no evidence to support that inference.

I do agree with the Crown that the evidence would have beenmore conclusive if Peter Dorn had accessed the Sonata Residence with the key while alone. In addition, while Tyson had been at theSonata Residence earlier that day, he had departed in his Red Mazda at 1:51 p.m., well before Mr. Taylor’s arrival;

b) January 11: Mr. Taylor and his wife arrived at 11:10 a.m. She was driving a Mercedes and he was the passenger. He unlocked theFront Door and went inside at 11:20 a.m. with an unidentified male. Shortly thereafter, he walked out and got into his wife’s vehiclewhere he remained until 11:52 a.m. He then re-entered the Sonata Residence and only emerged at 12:06 a.m. after which he left with anunidentified male in the Dodge Ram. Accordingly, he was inside the Sonata Residence for about 46 minutes. There is no indication thatTyson’s Red Mazda was at the Sonata Residence when Mr. Taylor arrived;

c) January 12: Mr. Taylor arrived at the Sonata Residence at 11:00 a.m. again as a passenger in a vehicle (H2 Hummer) driven by

another unidentified male. He unlocked the Front Door and entered. The unidentified male followed shortly thereafter. They were in the Residence for about eight minutes when they exited and got into the Dodge Ram. There is no indication that Tyson’s Red Mazda was at the Sonata Residence when Mr. Taylor arrived;

d) January 14: Mr. Taylor arrived at 2:15 p.m. again as a passenger in another vehicle (gold coloured SUV) driven by an unidentified male. He entered the Sonata Residence with that unidentified male without knocking and left the Front Door open. They left shortly thereafter at 2:18 p.m., after only about three minutes. Tyson’s Red Mazda was not there. In addition, while Tyson had been at the Sonata Residence earlier that day, he had departed in his Red Mazda at 11:29 a.m., well before Mr. Taylor’s arrival; and

e) January 20: Mr. Taylor arrived at the Sonata Residence at 12:11 p.m. again as a passenger in his wife’s Mercedes. He enters at 12:17 p.m. after unlocking the Front Door. After two vehicles arrive, he is seen opening the door to let three males in at 12:25 p.m.: two unidentified males from the H1 Hummer, one who hands him a McDonald’s restaurant bag, and one from a Toyota Tacoma. Mr. Taylor is still inside when surveillance is terminated at 1:17 p.m. so he is inside for at least one hour.

Again, Tyson’s Red Mazda is not seen during this time. [ 51 ] I am satisfied that the evidence is capable of establishing that Mr. Taylor had unimpeded access to the Sonata Residence during the times that he was seen entering it. He was seen on numerous occasions using a key to open the Front Door and on January 14, he simply enters the Front Door without knocking or having the need to open it with a key. He is clearly the one allowing access to these unidentified males on these various visits.

This ability to access the Sonata Residence with a key is indicia of control. [ 52 ] In addition, the evidence also confirms that Mr. Taylor was acting as a landlord of the upper portion of the premises, even though the Sonata Residence was owned by his father-in-law. [ 53 ] On January 12, 2012, Mr. Taylor signed a residential tenancy agreement, as the landlord, with Ms. Caterer, as the tenant. The tenancy was to commence January 15, 2012. The residential tenancy agreement refers to the rented premises as being the “upper” portion of the premises.

The Crown also refers to the agreement which indicates that the “address for service” is the “lower” portion of the Sonata Residence. The defence argues that this is inconclusive since the “address for service” is not indicated in terms of whether that is for the “landlord” or the “landlord’s agent”. In my view, the defence’s argument is without merit. The only “agent” of Mr. Taylor’s would be his son, Tyson, who lived in the lower level suite, presumably with his consent and agreement. In any case, Mr.

Taylor clearly anticipated that any service of documents by his upper area tenants would be made in the lower portion of the Sonata Residence where he had free and unimpeded access in order to retrieve any such documents. [ 54 ] Finally, on the matter of control, the Crown points to Mr. Taylor’s statement to Cst. Rogers on January 24, 2012 after he had been detained and placed in the back of a police vehicle. At that time, Mr. Taylor advised Cst.

Rogers something to the effect that he “managed” the Sonata Residence as a whole and not just the upper portion: the only reason why you guys have seen me there is I manage that house and just rented out the upstairs, rented it to a young girl, … [ 55 ] After considering the overall evidence on this issue, I conclude that there is sufficient evidence reasonably capable of supporting the inference that Mr. Taylor had the ability to exercise control and that he did control both the upper and lower portions of the Sonata Residence. (

b) Knowledge [ 56 ] The Crown points to various evidence which it says supports that Mr. Taylor had knowledge of the grow operation in the lower level of the Sonata Residence. [ 57 ] Firstly, the Crown points to the photographs of the grow operation which show an organized, well equipped and constructed operation. In the Mother Plants Room, there were substantial amounts of plants - 99 mature marihuana plants - which occupy the entire room but for walkways.

The plants appear to be several feet tall which give rise to the inference that they would have been growing there for some time. [ 58 ] The Crown submits that a reasonable inference is that these plants had been in the Sonata Residence for some time and certainly, during Mr. Taylor’s visits in the weeks prior to the search. [ 59 ] In contrast, the defence suggests that it is possible that these plants were just moved in recently - such as on January 22 and 23 when no surveillance took place. This would have involved moving a substantial amount of plants in the winter time.

While I agree that this is possible, in my view it certainly stands as highly unlikely to have occurred. In the context of the overall evidence, I consider that the size of the mother plants stands as a plank of evidence that could support the inference that the plants were in the Sonata Residence at the time of Mr. Taylor’s visits. [ 60 ] Secondly, Cst. Ricioppo, upon entering the ground floor of the Sonata Residence on January 24, noticed a mild to moderate odour of vegetative marihuana. This is not surprising given the large number of plants growing just feet away from the Front Door.

This evidence is said by the defence to be tempered by the lack of any evidence that Mr. Taylor, upon earlier entering the residence, was aware of this type of smell. For example, in contrast, Ms. Caterer, the upstairs tenant, did not notice the smell but she does not know what it smells like. [ 61 ] At this point, I would mention that the Crown has referred me to a number of cases, being R. v. Hubble , 2002 BCCA 561 ; R. v. Bauer , 2003 BCCA 138 ; R. v. Scott , 2012 BCCA 99 , leave to appeal ref’d [2012] S.C.C.A. No. 211.

Not surprisingly, all of these cases offer different factual circumstances than those found here. However, in all these cases, the fact that police officers could easily smell the marihuana upon entering the residence was a factor supporting the convictions: Hubble at paras. 5, 15 ; Bauer at paras. 5, 19 ; Scott at paras. 5 (July 16, 2005), 7, 90. [ 62 ] Thirdly, the Crown points to the more complete statement by Mr. Taylor to Cst. Rogers about the Sonata Residence which took

place before the RCMP officers arrested Mr. Taylor and before Mr. Taylor knew that the RCMP had found the grow operation in the Sonata Residence. The Agreed Statement of Facts sets out the full statement, as follows: the only reason why you guys have seen me there is I manage that house and just rented out the upstairs, rented it to a young girl, she's clean just like my wife . [Emphasis added.] [ 63 ] I agree with the Crown that the only logical inference arising from Mr.

Taylor’s comment about other people being “clean” is such that this comment can reasonably be understood as a reference to something illegal going on at the Sonata Residence. [ 64 ] Fourthly, and most significantly, the Crown relies on Mr. Taylor’s statement to Cst. Taylor which I have already referred to above. Again, while detained but not yet arrested, Mr.

Taylor told the RCMP officers: You guys want me that bad that you are going to pin Sonata on me for a guy I know who is doing whatever he is doing. [ 65 ] It is significant the above exchange took place before the warrant was executed at the Sonata Residence, commencing at approximately 1:55 p.m. When this comment was made, all Mr. Taylor (and indeed the officers who arrested him) knew was that the RCMP were in the process of executing a search warrant at the Sonata Residence. Only later, after execution of the search warrant at the Sonata Residence had begun and the grow operation discovered, was Cst.

Taylor advised of that fact resulting in the arrest of Mr. Taylor. [ 66 ] The defence argues that this comment is equally consistent with Mr. Taylor expressing his innocence. I disagree. A person without knowledge, if inclined to respond to learning about the execution of the search warrant, would have likely expressed shock and surprise and if nothing else, the view that the police would find nothing there. Mr. Taylor’s response is not the response of such a person. In my view, the only reasonable inference that arises from this evidence is that Mr.

Taylor fully knew that the RCMP would find something illegal at the Sonata Residence, being the grow operation. [ 67 ] The defence argues that there is simply no direct or circumstantial evidence linking Mr. Taylor to the grow operation even if he was visiting the Sonata Residence from time to time. The defence further argues that there is no evidence that he was even aware of the grow operation, assuming that he was there just visiting his son in the lower suite or dealing with the tenants in the upper area. [ 68 ] Accordingly, the defence argues that, assuming that Mr.

Taylor had knowledge of the illegal activities, it does not equate to him having control over the marihuana. As the court noted in R. v. Bui , 2002 BCSC 1903 , it is possible to infer that someone living in a house has knowledge of the activities there, particularly if such activities take place in the open. However, as Mr.

Justice Edwards also noted “the mere knowledge of the [illegal activities] does not establish the necessary control”: para. 12. [ 69 ] Conversely, control over the Sonata Residence does not necessarily equate to knowledge, particularly where other persons in the premises may similarly be knowingly exercising control over illegal activities. [ 70 ] It seems clear enough that the grow operation was not, as the saying goes, in “plain view” to someone entering the Front Door or even accessing other living areas of the lower level.

The most direct access was from a door off the Computer Room at the back of the Sonata Residence; however, this door had no handle and was locked when searched by the RCMP. There is no evidence that Mr. Taylor possessed the key to this lock. [ 71 ] The lack of any evidence that the accused had a key to access the marihuana grow operation was an important factor in her acquittal even though she was a tenant of the property: see R. v. Polukoshko , [1999] B.C.J. No. 646 (S.C.) at para. 20 .

In that case, while it was a reasonable inference that the accused knew about the grow operation, it was not the only reasonable inference since the operator may have denied her access. [ 72 ] The Crown asserts that even so, Mr. Taylor had unimpeded access from the lower living areas via the door to the garage, which in turn leads into the Side Entry Room, which leads to the Clone Plants Room and then the Mother Plants Room. This was the means of access by the RCMP during the search on January 24.

The officers found that the door into the garage from the living room was not locked, although it had a deadbolt on the garage side which was lockable with a key. Similarly, the door to the Side Entry Room was unlocked although it had a deadbolt on the garage side which was lockable with a key.

Finally, the Side Entry Room door into the Clone Plants Room was unlocked although it had a deadbolt on the Side Entry Room side which was lockable with a key. [ 73 ] On the matter of both knowledge and control, the defence argues that while these doors were unlocked at the time of the search, and therefore provided full access to someone coming in the Front Door, there is no evidence that such access was present when Mr. Taylor was at the Sonata Residence. Further, the defence points out that there was no evidence as to who had keys to these locks, and that certainly there was no evidence that Mr.

Taylor did at any time so as to prove that he had some control or knowledge in relation to the grow operation. [ 74 ] Countering this evidence is that Mr. Taylor did exercise some control over the garage in that he told the upstairs tenants that they could not park their vehicles in the garage. The only vehicle parked in the garage was an Aston Martin registered to Eric Bowman, whose connection to the Sonata Residence is not known. [ 75 ] However, it must be kept in mind that the Crown need only prove the ability to exercise some control, not that it was exercised by the accused. In Wu , Mr.

Justice Frankel stated: [20] The law with respect to control in the context of constructive possession is well known. What the Crown must prove is that an accused 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 to prove 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 , 2008 BCCA 458 , 238 C.C.C. (3d) 270 at paras. 42-44 .

[ 76 ] Nor is there anything directly linking Mr. Taylor to the plants in the grow operation rooms themselves. No fingerprints belonging to Mr. Taylor were found in the rooms. In R. v. Allen , 2014 BCSC 615 , aff’d 2015 BCCA 299 , the conviction of the accused was upheld based on circumstantial evidence. That evidence included that the accused had a key to the residence and his fingerprints linked him to items near the drugs (BCSC at paras. 62-63). [ 77 ] No documents were found in the Sonata Residence that pointed to Mr. Taylor’s involvement in the grow operation itself.

No other indicia of participation in the grow operation were found linking Mr. Taylor to the actual operations. [ 78 ] Also of relevance is that there is ample evidence that any number of persons could have been the operator or operators of the grow operation, including Tyson or any of the numerous male visitors to the Sonata Residence, as observed during the surveillance. However, Tyson was, in my view, clearly in the lower suite of the Sonata Residence with his father’s consent and agreement and the unidentified males seen entering the Front Door of the Residence with Mr.

Taylor were clearly being admitted by him. [ 79 ] After considering the overall evidence on this issue, I conclude that there is sufficient evidence reasonably capable of supporting the inference that Mr. Taylor had knowledge of the grow operation in the lower portion of the Sonata Residence which he managed and where he had unimpeded access to all areas of the residence. I rely in particular on Mr. Taylor’s statements to the RCMP upon his detention and the pervasive smell of marihuana upon entering the Sonata Residence. (

c) Only Reasonable Inference? [ 80 ] The defence asserts that there are various innocent possible explanations for Mr. Taylor’s attendances at the Sonata Residence such that guilt is not the only reasonable inference to be drawn from the facts. [ 81 ] In the first instance, the defence says that Mr. Taylor was just visiting his son, Tyson. This proposition is, however, suspect since there is no indication that Tyson’s regular vehicle, the Red Mazda, was there during these visits. In fact, Tyson had left in his Red Mazda before Mr. Taylor’s visits on January 5 and 14. Further, either Peter Dorn or Mr.

Taylor is seen unlocking the Front Door on four occasions and Mr. Taylor enters without unlocking or even knocking on the other occasion. These actions are inconsistent with him being there to visit Tyson. [ 82 ] The defence suggestion that Tyson may still have been in the Sonata Residence even if the Red Mazda was not seen there is entirely speculative and contrary to the evidence which shows that he was regularly driving that vehicle. [ 83 ] The length of the “visits” by Mr.

Taylor - in most cases only minutes long - would also suggest that seeing his son Tyson was not the purpose of those visits. [ 84 ] The defence also suggests that Mr. Taylor was there to deal with the upcoming tenancy in the upper suite. Mr. Taylor’s first observed visits were on January 5, 11 and 12. The tenancy began on January 15 although the actual moving day was two days earlier on January 13. However, again the brief nature of most visits prior to the tenancy would suggest that not much could have been done in that respect.

The longer visit on January 11 seems more likely to have been a time frame in which such activities could have been undertaken. [ 85 ] The defence suggests that the evidence supports that Mr. Taylor was in the middle of constructing the new door at the top of the stairway just inside the Front Door so as to physically separate the upper and lower suites. The defence says that this is consistent with Mr. Taylor’s role as landlord of the tenants in the upper suite such that a rational inference arises that he was in attendance at the Sonata Residence to complete this construction.

A photograph does suggest that this construction was in progress as of January 24, 2012, although there is no indication that any recent work was actually underway on that date. However, the suggestion that Mr. Taylor was undertaking this construction is entirely speculative and not supported by any evidence. [ 86 ] In addition, as the Crown points out, construction materials can also be seen in the Side Entry Room which, as of January 24, allowed unimpeded access to the Clone Plants Room. [ 87 ] The question remains whether the evidence reasonably supports that Mr.

Taylor, while in control of the lower level of the Sonata Residence and having knowledge of the grow operation, merely acquiesced in that operation such that he neither participated in it nor aided and abetted it? [ 88 ] The facts in Rochon , a case relied on by the defence, are in my view entirely distinguishable. [ 89 ] I commend the defence for their able written and oral arguments by which the specific facts, from either the Agreed Statement of Facts or Cst. Taylor’s testimony, have been challenged. They describe this as a “razor thin” case, which in my view, is not an accurate description.

Having said that, I would also not describe the Crown’s case as “very strong”. Good arguments were presented on both sides in deciding this difficult case. [ 90 ] Even so, I consider that the approach taken by the defence amounts to an individual dissection of and attack on these facts. This approach inevitably leads one into the proverbial problem of failing to see the forest for the trees. Needless to say, as stated in Carpio , the court is required to consider the totality of the evidence and not simply the individual pieces of evidence, which by themselves are inconclusive.

In addition, as the oft-quoted comments of Chief Justice MacEachern’s in R. v. To , cited in Ngo above, make clear, the Court is not required to park common sense or realism at the door in undertaking this exercise. [ 91 ] After reviewing all of the circumstances in their totality, I am satisfied that the evidence is reasonably capable of supporting that the only reasonable inference is that Mr. Taylor either was participating in this grow operation or he was actively aiding and abetting it.

In the latter respect, I would adopt the comment in Ngo at para. 52 , cited above in full, that the evidence is also capable of supporting, at the very least, that Mr. Taylor aided or abetted in the production of the marijuana by maintaining the environment in which it was being conducted (i.e. the area of the lower suite in the Sonata Residence where the grow operation was located), with the purpose or intent to assist in the crime.

[ 92 ] I do not intend to review all of the evidence again upon which I rely. However, I find the following agreed facts and circumstances particularly persuasive:

a) there is no question that a significant grow operation was being conducted in an area in the lower part of the Sonata Residence that Mr. Taylor stated he “managed”;

b) Mr. Taylor regularly accessed the Sonata Residence as he wished, most often using a key in his possession, indicative of control of the Sonata Residence;

c) the smell of marihuana was evident upon entry at the Front Door where Mr. Taylor entered a number of times. Certainly, the pervasive smell of marihuana would have also been noticeable to the people either living in or entering the lower level of the Sonata Residence, whether they were these unidentified males or Tyson;

d) the brief nature of most of those visits would suggest some overall management of the Sonata Residence and not simply that he was visiting Tyson or doing construction in relation to the upper suite given the nature of the entry by Mr. Taylor and the length of his visits;

e) the overall surveillance of the Sonata Residence indicates a lot of activity with people coming and going, mostly unidentified males and in various vehicles. For example, the surveillance showed these male persons entering the Front Door by themselves (December 29) or leaving the west side and getting into a vehicle which has connections to Mr. Taylor (January 20), both times when Mr. Taylor was not present;

f) this type of ongoing activity at the Sonata Residence is consistent with these people being actively involved in the grow operation, particularly given the access from the west side of the Sonata Residence on December 29 which allowed direct access to the Side Entry Room and then the Clone Plants Room. Importantly, this same type of activity occurred during the times of Mr. Taylor’s visits by which he allowed various unidentified males access via the Front Door, suggesting some overall knowledge and involvement in their activities there. In other words, the overall inference is that Mr.

Taylor was actively dealing with these other persons or he was having these persons conduct activities for him. This was not consistent with Mr. Taylor “simply visiting” as the defence suggests;

g) I consider that the evidence is capable of supporting that the only reasonable inference arising from the regular ebb and flow of these unidentified males to the premises is that their activities were in relation to the grow operation. On the occasions when Mr. Taylor was at the Sonata Residence, these persons were the ones to drive Mr. Taylor there and/or they left with him and/or they joined him and were freely admitted to the Sonata Residence. In other words, the pattern of these persons accessing the Sonata Residence continued at the time of Mr. Taylor’s attendances at the Sonata Residence; and

h) Mr. Taylor’s statements to the RCMP, as set out above. CONCLUSION [ 93 ] In

summary, I find that, after a limited weighing of the evidence, the Crown has met its burden in establishing that the evidence could reasonably support that the only reasonable inference from all of the circumstances is that Mr. Taylor was involved in or that he aided and abetted this marihuana grow operation, in respect of both the production and possession of the marihuana. [ 94 ] Accordingly, the defence’s no evidence application is dismissed. “Fitzpatrick J.”