R. v. Dinh Date:, 2011 BCPC 220

Citation: R. v. Dinh Date: 20110513 2011 BCPC 0220 File No: 172648-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAN VAN DINH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: Federal Crown: G. Jose Counsel for the Defendant: C. Dietz Place of Hearing: Surrey, B.C. Dates of Hearing: June 24, 2010; January 10, 2011 Date of Judgment: May 13, 2011 [ 1 ] THE COURT : Mr.

Dinh is before the court on a three-count Information which originally alleged unlawful production, possession of cannabis marihuana, contrary in the first count to s. 7(1) of the Controlled Drugs and Substances Act and in the second count to a charge contrary to s. 5(2) of the Controlled Drugs and Substances Act . My recollection was that with respect to Count 3, the Crown withdrew that count and so I do not propose to make any comments in respect to that count. [ 2 ] I regret that despite counsel's very strong efforts and careful presentation of argument, I do not have prepared written remarks this morning.

I have, unfortunately, become a cropper of the courthouse flu and spent most of the last couple of weeks fighting with that. I have had the opportunity to review the matter with some care and am giving these oral reasons today. [ 3 ] This is a case where the police began to surveil a home in Surrey based on a complaint of theft of hydro. In this case the surveillance was about as brief as it could be, and on a single occasion when the premises were surveilled a vehicle owned by Mr.

Dinh was present at the residence but there was no surveillance of him being the operator of the vehicle at that time, or of him being present at the residence. [ 4 ] Subsequently, on the 27th of November 2008 a warrant was executed on the premises. We have already had a voir dire and rejected, in separate reasons, the application to restrict evidence, particularly evidence of identity which had been obtained in the process of the search, and the trial proceeded in the usual way.

[ 5 ] Unfortunately, this is a case where Mr. Dinh was -- or one of his children answered the front door in response to the police arrival. It was relatively early in the morning, but not so early that it is clear what was going on in the house prior to the arrival of the police. For instance, there is no evidence of when Mr. Dinh arrived at the house or whether he was at the house all night, that sort of thing.

There is some evidence of people looking sleepy and that sort of thing from which inferences could be drawn, but these facts are not such that guilt is the only inference that could be drawn. [ 6 ] Aside from the presence of Mr. Dinh in the house this is a case where, quite clearly, the officer's had a good tip, the house contained a significant and sophisticated marihuana grow operation. However, there was an absolute paucity of evidence linking Mr. Dinh to the premises, apart from his presence, or to the grow operation. There were no fingerprints of his on any equipment.

There were no documents of his anywhere in the house. I never heard any evidence of keys to the premises, a factor which has, in other cases, been telling. It is simply a case where there is a complete lack of evidence that would permit the court to conclude beyond a reasonable doubt that Mr. Dinh was guilty of any of the offences charged, and on that basis I am obliged to acquit him, and I do so, on the outstanding charges. [ 7 ] Thank you, counsel. (REASONS FOR JUDGMENT CONCLUDED)