R. v. Le, 2015 BCPC 472

Citation: R. v. Le, Nguyen and Thai 2015 BCPC 472 Date: 20151029 File No: 198905 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. LAI VAN LE, THUONG VAN NGUYEN and MINH HUNG THAI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GILLESPIE Counsel for the Crown: P. Bachra Counsel for the Defendant: R.N. Morahan, M. Klein, B. Jessop Place of Hearing: Surrey , B.C. Dates of Hearing: July 22-25, 2014; April 28-29, 2015; May 20-22, 2015; August 15 and 25, 2015 Date of Judgment: October 29, 2015 A Corrigendum was released by the Court on March 21, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. BACKGROUND

[ 1 ] Surrey RCMP attended to a residential marijuana grow operation located at 5642 Sundale Grove, Surrey B.C. where 259 plants in a vegetative state and 265 drying marijuana plants were located by the Surrey RCMP on March 19, 2013 (The “Sundale Residence”). [ 2 ] The Sundale Residence is located in a residential neighbourhood in Surrey. It has two floors: a main living area and a basement that opens up to the ground floor outside. [ 3 ] Mr. Le and Mr. Thai were located and arrested at the Sundale Residence. Mr. Le was associated to a Budget Rent-a-Van parked in the driveway and Mr.

Thai was associated to a garden truck parked on the street near the Sundale Residence. They were both arrested at the residence. Mr. Nguyen left the residence along with his family through the back upstairs door and was subsequently arrested on March 28, 2013. [ 4 ] All three accused are charged with possession for the purposes of trafficking of the marijuana plants. Additionally, Mr. Nguyen is charged with production of cannabis (marijuana) and fraudulent use of hydro. [ 5 ] All three accused have testified. Mr.

Le testified that he has a medical marijuana license that allows him to produce 146 plants at the production site located at 1101 Finlayson Arm Road, Victoria, BC. He testified that his brother, Minh Le, who knew he had a medical marijuana license to produce, contacted him at approximately 5:00 PM on March 19, 2013, and advised him that there were plants at the Sundale Residence, and that he should come and pick them up.

He testified that he believed that he was permitted to transport those plants to the Finlayson Arm Residence in Victoria, BC. 139 plants were located by RCMP in the garage and/or inside the Budget Rent-a-Van at the Sundale Residence on March 19, 2013. All of those plants were in the vegetative stage: there was no marijuana bud on them. [ 6 ] Mr. Nguyen testified that he lived at the Sundale Residence when the police attended and dismantled the grow operation, but he says he did not know that the marijuana plants were in the Residence.

He testified that a woman named Tina Chan rented the whole house from him for a three-month period of time, and then rented just the basement suite after that. He said he was unaware of the grow operation downstairs. He said he possessed the closed circuit television cameras located at the residence together with the machete and bear spray due to safety concerns he had about living in the Surrey area. [ 7 ] Mr. Thai testified that he was contacted by Mr. Nguyen to help him remove garbage from the basement. He attended to the Sundale Residence that date to assist his friend in removing the garbage.

He was unfamiliar with what marijuana looked like, but he does admit that he moved some marijuana plants from the basement to the garage so he could better access the garbage to remove it. ISSUES/POSITION OF THE PARTIES [ 8 ] All three accused are charged with possession of marijuana for the purpose of trafficking. The Crown is required to prove not only that the accused were in possession of marijuana, but that they possessed it for the purposes of trafficking. Possession requires that the Crown prove both knowledge and control. The Crown relies on the evidence of Cst.

Margaret Trenn, who was qualified as an expert regarding marijuana grow operations. She testified that the quantity of marijuana located in the basement at the Sundale Residence exceeded the amount of personal consumption. [ 9 ] Mr. Nguyen and Mr. Thai both argue that the Crown has failed to prove these elements of the offence beyond a reasonable doubt. Further, because they have testified, the principles set out in R. v. W.(D.) , infra , apply. They argue that I should accept their evidence, which, if I do, amounts to a defence, and in any case I should be left in a doubt by it.

Even if I am not left in a doubt, the defendants submit that the Crown’s case is a circumstantial one, and the burden of proof is not met here, as the evidence when considered in its totality does not lead to only one rational explanation. Rather, the defendants submit that there are other inferences rationally available that are inconsistent with the guilt of the accused, and accordingly I must acquit them. [ 10 ] Mr.

Le argues that he is entitled to lawfully produce marijuana due to his medical marijuana licences he possesses that permit him to be in possession of a quantity of 900 grams of marijuana anytime, that a further 6570 grams may be stored at 1101 Finlayson Arm Road, Victoria, as well as an authorization to produce 146 plants at the Finlayson Arm residence. He submits that the Medical Marijuana Access Regulations (the “ MMARs ”) are silent about how a licensee is lawfully permitted to come into possession of plants, seeds or seedlings.

He argues that it is implicit in the MMARs that, given that the government authorizes an individual to lawfully produce marijuana, it must follow that a person is lawfully entitled to possess seeds and or plants; yet the MMARs are silent about how one lawfully comes in to possession of them. He submits that his possession of the marijuana plants was solely for the purpose of transporting them to the lawful production site.

He further submits that the combination of the Controlled Drugs and Substances Act (“ CDSA ”) and the MMARs operate inconsistently, as the CDSA proscribes that possession of marijuana is unlawful, except pursuant to ss. 55 and

Section 55 is the

section under which the MMARs are enacted. The MMARs permit a person to obtain a lawful authorization from the government to produce marijuana, yet the MMARs do not set out how the licensee can lawfully obtain seeds or plants to commence lawfully producing marijuana. Accordingly, the MMARs are ambiguous. Where an accused’s liberty is at stake, the statute must be construed in favour of the accused, and thus he should be found not guilty of unlawful possession of marijuana. In the alternative, Mr.

Lee argues that the absence of clear language about how a licensee can legally come into possession of seeds/plants in the MMARs has led to a mistake of fact. The mistake of fact was namely that he was mistaken that he could transport the plants to a lawful site given the MMARs’ failure to specifically proscribe how he could possess seeds or plants. Or conversely, Mr. Le argues that he was permitted to transport plants from one site to another when he received permission to change the site.

Finally, and in the alternative, he submits that if there is no mistake of fact depriving him of the requisite mens rea , which he says is supported by the surrounding facts in this case, then there is an officially induced error. This officially induced error is because of the absence of any sections in the MMARs permitting lawful possession of seeds or plants to start producing marijuana. In

summary, he submits that the Crown has failed to establish he had the necessary mens rea to unlawfully possess marijuana. Furthermore, he says the Crown has not proven that he intended to traffic in, because he did not intend to provide that marijuana he was in possession of to anyone else. Rather, it was authorized by license for his personal use. He was entitled to produce 146 plants at his production site, and the number of plants in the garage and in the back of the Budget Rent-a-Van at the Sundale Residence did not exceed that amount. [ 11 ] As all of the accused have testified, the principles of W.(D.) , infra , apply. All of the defendants argue that their evidence should

be believed, but even if it is not believed, it should raise a doubt and therefore they should be acquitted. Finally, even if it does not raise a doubt, on the whole of the evidence, all of the accused argue I should find that the Crown has failed to prove their case beyond a reasonable doubt. [ 12 ] The accused Mr. Nguyen and Mr.

Thai also submit that while their statements are technically admissible, given that the interviews were conducted in English, and these two accused are not proficient in the English language, I should not attach any weight to these statements. [ 13 ] Crown counsel submits that while English is the second language of the defendants, it is clear from their statements that all of the accused were sufficiently conversant in the English language.

Their answers were responsive to the questions they were being asked, and therefore the Crown argues that I can find that all of the accused were able to understand the questions they were being asked. Accordingly, the Crown says those statements can be accorded full weight when I am assessing the credibility of the evidence given by the accused. [ 14 ] With respect to the evidence of Mr. Nguyen and Mr. Thai, the Crown submits that their evidence is not reliable, unbelievable, and inconsistent with the objective evidence in this case.

The Crown submits that I should reject the evidence, not be left in a doubt by it, and that I should find that both Mr. Nguyen and Mr. Thai had the requisite knowledge and control over the plants. In fact, the Crown argues the accused were actively vacating the grow operation, having just received notice from the fire department that they were planning on inspecting the property. In addition, the Crown submits that I should be satisfied that Mr. Nguyen is also guilty of the production charge and fraudulently using and/or diverting electricity. [ 15 ] Regarding Mr.

Le, the Crown submits that I should reject the evidence of Mr. Le and find that he possessed the plants for the purpose of trafficking. In the event I do not do that, and if I accept or I am left in a doubt by Mr. Le’s evidence about his intention to transport the plants to his property where he possessed a Personal Use Production License, the Crown concedes that they have not in those circumstances established the offence of trafficking. However, it is the Crown’s position that they have in those circumstances established beyond a reasonable doubt that Mr. Le was in possession of marijuana. As to Mr.

Le’s arguments that the Crown has not established possession on the basis of their arguments regarding statutory

interpretation and failing that mistake of fact, the Crown disagrees with the defence’s position. The Crown otherwise provides no specific argument, other than relying on the actual language of the MMARs and the CDSA about why they disagree with the defence on this. EVIDENCE [ 16 ] As this is a case that requires me to undertake a W. (D.) analysis, I must review the evidence I have heard in this case in its totality. [ 17 ] The Surrey RCMP attended to the Sundale Residence on March 19, 2013, at 9:48 PM as a result of a neighbour complaint about a possible marijuana grow operation at that location.

On the day of the civilian complaint (March 19, 2013), the municipal electrical inspection team had attended and posted a notice of inspection at the Sundale Residence. Mr. Thai and Mr. Le were arrested at the residence by the RCMP, and Mr. Nguyen and his family left the residence through the top floor back door entrance. Both of their dogs were left behind. [ 18 ] Cst. Pollock arrived at 9:30 PM and parked his police vehicle to the north of the Sundale Residence and approached it by foot. He observed a Budget Rent-a-Van in the driveway.

From his vantage point he observed that there was a male climbing into the van. Shortly thereafter, he observed the garage door open and a second male appear. That second male was passing the marijuana plants from the garage to the male in the van. When Cst. Pollock approached the males and identified himself as a police officer, the second male who had been handing plants to the male in the back of the Budget Rent-a-Van ran into the house. He arrested the first male who was identified as Mr. Le. Cst. Schaloske and Cst. Williams then arrived on scene. Cst.

Pollock observed multiple marijuana plants in the back of the Budget Rent-a-Van and on the floor of the garage. Cst. Pollock then entered the garage and saw another male, whom Cst. Schaloske took into custody. This individual was later identified as Mr. Thai. Cst. Pollock could not say if this was the same male he first saw handing plants to Mr. Le. [ 19 ] Cst. Pollock then entered the Sundale Residence and completed a search for other people. In the course of the search he observed that the upper floor was a normal residence with bedrooms on that floor.

He observed children’s toys and clothing and a kitchen with evidence of food having been recently consumed in it. He observed a CCTV installed in what appeared to be the master bedroom, displaying multiple camera views of the Sundale Residence. He also observed that there were stairs leading from the upper floor to the lower floor from the main hallway. There was no obstruction at the top of the stairway, but at the bottom there was a metal gate that was unlocked and open with a sheet hanging down. He went downstairs and noted that there was a small room with marijuana growing equipment.

To the right he observed large watering barrels. He then cleared each of the rooms in the basement. He noted that each room appeared to be a marijuana plant growing room in disassembly. He also noted the presence of Mylar on the walls. He noticed that the back door was barricaded shut with 2x4 pieces of lumber located in brackets. He also located a second door behind what he described as a false wall leading to a kitchen. There, the police discovered marijuana in bags. No one was found there.

He later obtained a search warrant and returned to the Sundale Residence where he and other police officers continued to dismantle the marijuana grow operation. [ 20 ] When Cst. Schaloske attended to the Sundale Residence, he observed that the garage was filled with potted marijuana plants. Cst. Trenn and Cpl. Krauss both testified that none of the plants in the garage and/or in the back of the Budget Rent-a-Van had marijuana bud on them. [ 21 ] Upon his attendance, Cst. Schaloske was tasked with being in control of Mr. Thai. He arrested him and took him back to the Surrey Detachment cells.

He then re-attended to the Sundale Residence until 7:00 AM the following day when Cst. Pollock returned with a warrant to search the residence. He prepared a diagram of the house. While he testified that the diagram was accurate, he also noted it was not to scale. Cst. Schaloske also testified that in the basement the two lower exterior doors were both barricaded from the inside.

[ 22 ] Cst. Schaloske also testified that throughout his dealings with Mr. Thai, he and Mr. Thai were able to converse using the English language. [ 23 ] Cst. Pollock re-attended to the Sundale Residence with the search warrant and he located a quantity of what all defendants admit is marijuana. Mr. Nguyen admits that he is the owner and was a resident of the Sundale Residence on March 19, 2013. Photos depicting Mr. Nguyen and Mr. Thai together were also seized at the residence. There is no evidence that Mr. Thai ever attended to the Sundale Residence before March 19, 2013.

The DVR (recording device) was seized from the CCTV. Knives and bear spray were located in the closet in the master bedroom by Cst. Pollock and a machete was also present there. An axe was located on the closet floor. [ 24 ] Cst. Pollock also noted that there were two basement doors. One of them was located at the north side of the basement, and it was closed up and barricaded with a 2x4 piece of lumber. When the lumber barricade was in place, it would make access from outside that door difficult. The second external door to the backyard area led away from the kitchen in the basement.

From the basement kitchen there was also a door that led to the marijuana grow operation. [ 25 ] Cst. Pollock observed that the marijuana grow operation in the basement was mostly dismantled. There was ducting that ran through several walls for air exchange. He also noticed the presence of a hydro bypass wire that led up to the garage. Cst. Pollock also noted that there were four external cameras that captured images from the exterior of the Sundale Residence. [ 26 ] Cst. Pollock seized a large Master Lock found on the bottom of the internal stairs near the metal folding gate.

He also found a key ring with two keys on it on the second-from-the-bottom stair. When he tried the keys in that lock, they opened it. He observed that the door in the basement on the north side was closed up and barricaded to prevent access to the outside yard. He would need to remove the 2x4 piece of lumber that was positioned across the door to open it and gain access to the outside yard. He described that there was a second door in the basement that led to the backyard, and if you went through that door from outside you would find yourself in the basement kitchen.

There was also a hallway area, and there was a door from that hallway that led into the marijuana grow operation. There was a latch on that door that, if latched, could only be unlatched from inside the grow operation. [ 27 ] At the time Cst. Pollock located the marijuana grow operation, he described it as mostly dismantled. [ 28 ] Cpl. Milliard also located a blue plastic bin in the backyard of the Sundale Residence that contained digital photos, iPads, and a picture of what he described was the “accused’s family”.

One of the neighbours viewed the photograph and advised him that that was the family who lived at the residence. [ 29 ] Cst. Pollock also assisted Cst. Proctor in creating a DVD of the information contained on the DVR from the CCTV. Cst. Proctor was tasked with reviewing all of the DVR footage (60 days in total: 17 days of footage from four separate camera views) to identify the people who were noted coming and going from the Sundale Residence for the period of time that the DVR covered.

For the period of time between March 3 and March 19, 2013, a DVD was created of some of the “comings and goings” to the Sundale Residence depicted in the DVR. Cst. Freddie Moon then made a montage/clip of all of the video that Cst. Proctor identified where people came and went from the Sundale Residence. That video montage/clip was filed as an exhibit in these proceedings and we viewed that in court. In cross-examination, Cst. Pollock agreed that he viewed the CCTV footage for the purpose of noting when people were observed coming and going from the Sundale Residence.

He would document the time when they arrived and when they left and those clips were included in the montage prepared by Cst. Moon. [ 30 ] Cst. Pollock agreed that in his review of the DVR, the only time he saw the Budget Rent-a-Van was on March 19, 2013. He agreed that Mr. Le showed him his Medical Marijuana Production License, but as far as he was concerned there was no authority under any legislation to transport plants. [ 31 ] Cst. Pollock observed that there were 101 plants in the Budget Rent-a-Van and 36 plants in the garage. He agreed that the amount of plants was within the amount authorized in Mr.

Le’s production license. He did not make a note of the height of the plants, but agreed that they may well have been 18-24 inches high. He did not go downstairs to the lower portion of the house. The only access he saw to the marijuana grow operation was from the inside staircase of the house, as the marijuana grow operation was not on the upper floor, it was only in the basement. [ 32 ] Cst. Pollock also agreed that there was one hour of footage missing due to the changeover resulting from daylight saving time.

Also, every day there was 30 seconds of lost footage due to the camera rebooting itself. [ 33 ] He reviewed the CCTV footage, and he noted that March 19, 2013, was the only time he had ever witnessed a Budget Rent-a- Van at the Sundale Residence. [ 34 ] Cst. Proctor also testified. He is the police officer tasked with reviewing the DVR from the CCTV device at the Sundale Residence. He went backwards commencing with viewing the tapes from March 19 back to March 3, 2013.

There were four cameras: Camera 1 was between the neighbour’s residence and the Sundale Residence; Camera 2 was pointed at the rear alley; Camera 3 was pointed at the rear of the house, and depicted the backyard from the alley through to the back of the house; Camera 4 was depicting the area in the front yard. Cst. Proctor’s task was to identify the times when people came and went from the Sundale Residence. [ 35 ] Cst. Proctor testified that he viewed a family coming and going from the Sundale Residence.

The older male appeared to leave with small children and his gym bag, and return later in the morning without the children. During the period of time he watched the video footage, he noted some people coming and going from the residence, but not a high volume of people. He agreed in cross- examination that he was most concerned with the family he associated with the residence. He also agreed that there may have been other people coming and going from the residence, including cars, which he did not include in the video filed as an exhibit. [ 36 ] From viewing the video clip, I observed that Mr.

Nguyen comes and goes in the morning as described above. Sometimes he is in the backyard with the dog. On the video, Mr. Nguyen appears to most commonly use the main door associated with the garage to apparently gain access to the residence. Mr. Nguyen is depicted on the CCTV entering into the rear door of the residence on two occasions, March 13 and 17, 2013. Mr. Nguyen testified that he walked through the back hallway but not through any of the doors from

that hallway. [ 37 ] Cst. Proctor also agrees that on the March 19 th , he sees the Budget Rent-a-Van pull into the driveway of the Sundale Residence at 9:21 PM. Shortly thereafter, the main door to the garage opens up, and Mr. Le and Mr. Nguyen enter the main door into the garage. Mr. Le is depicted at 9:25 PM opening up the rear door of the Budget Rent-a-Van vehicle. At 9:26 PM, Mr. Le backs the truck up closer to the garage door. At 9:48 PM the police arrived. [ 38 ] Cpl.

Dunn, Surrey RCMP took up a positon at the rear of the Sundale Residence at 9:54 PM until 11:00 PM, and at no time did anyone leave from or enter into the Sundale Residence from those back stairs. [ 39 ] Cpl. Krauss also attended to the Sundale Residence on March 20, 2013. He viewed the grow operation and setup. He testified that he has over 35 years of policing experience with the RCMP. In the past, he has been qualified as an expert in the area of residential marijuana grow operations. There were no signs of anyone living or occupying the area where the grow operation was located in the basement.

When he entered the basement, it appeared to him that it was used for the purpose of a marijuana grow operation. There were growing rooms set up, drying rooms, and no other indication of occupation. [ 40 ] Cpl. Krauss also looked at the doors that accessed the basement from the exterior of the house. He observed two exit doors. One had a triple locked dead bolt or lock with a manual sliding bolt into the basement floor, and it was in the locked position. The second door had brackets with a drop bar, and the door was reinforced to prevent it from being able to be forced open.

There was a curtain covering the door. [ 41 ] Cpl. Krauss also observed an access point from the main floor to the basement. There was a standard door with a door knob, and below that an accordion expanding metal gate with a lock and two keys located on one of the basement steps. If the basement doors were in the locked positon, his view was that entry to the grow operation could only occur through the main house.

Even if you had an exterior key to the locked basement doors, you could not open them from the outside, given the presence of the reinforcements. [ 42 ] One of the grow rooms was strung with wall-to-wall wire. There were high intensity light bulbs and fans present. Cpl. Krauss observed 265 plants hanging by wires and harvested. The plants were 30-36 inches, and appeared to him to collectively have the same degree of bushiness. He selected four plants from this group to do a rough estimate of the weight of each plant to estimate the yield.

The average yield for these four plants was 48 grams. 263 dried pants would produce a yield of 12,720 grams. There are 28.3 grams in one ounce of marijuana. He concluded that the 263 dried plants would produce a yield of approximately 28.06 pounds of marijuana. [ 43 ] In Cpl. Krauss’ view, one could only enter the basement from the top floor, although clearly the back screen door was used by Mr. Nguyen, as he was captured on the CCTV video on two occasions. [ 44 ] Cpl. Krauss agreed in cross-examination that the plants he observed in the back of the Budget Rent-a-Van did not have any obvious bud on them.

Therefore, he agreed those plants were in a vegetative state. There was nothing presently harvestable on the plant as the THC comes from the marijuana bud. A plant in the vegetative state has no value to the marijuana grower; it is a liability at that time. The “whole point is to bring the plant to maturation” and harvest and sell the “bud”. [ 45 ] Cst. Margaret Trenn was qualified as an expert in cultivation, production, possession for the purpose of trafficking, use, distribution, price and packaging of marijuana, as well as the roles in a marijuana grow operation. [ 46 ] Cst.

Trenn did not attend at the Sundale Residence, but viewed the photographs filed in these proceedings. She observed 259 marijuana plants that were approximately 18-24 inches located in the garage, basement, and Budget Rent-a-Van that were in a vegetative state. They had no buds on them. There were also 265 dried marijuana plants approximately 30-36 inches located in the basement. The THC, which is the active ingredient in marijuana sought out by marijuana users, is derived solely from the bud, which was not present on the plants in the garage or in the Budget Rent-a-Van.

In her opinion, the drying plants were approximately 3.5 months old, while the vegetative plants were 2.5-3 months old. She also observed that there were clone plants, which meant to her that this was a three-stage growing operation. In her opinion the growing cycle was 3-4 months; meaning that this grow operation would be able to produce 3-4 crops annually. [ 47 ] Based on reviewing the photos taken of the grow operation at the Sundale Residence, Cst. Trenn concluded that the plants were being manually watered. Hoses and watering wands were located at the growing site.

It also appeared to her that the fertilizer was being applied manually, too. When marijuana plants are at the vegetative state it is best to water them daily. An automatic lighting system also appeared to her to be present at the growing site. Flowering plants/budding plants also require care. Her evidence must be considered in the context of her observation that this was a grow operation that was in the process of moving. Therefore, it is not possible to say what had already been removed. Further, there was no evidence she saw a watering/fertilizing schedule. [ 48 ] Cst.

Trenn also observed a quantity of stacked pots at the growing site. The presence of these pots indicated to her that this was an ongoing marijuana operation, rather than a one-off, as it appeared to her that the pots were being saved for future marijuana plants. [ 49 ] In Cst. Trenn’s opinion, a heavy marijuana user smokes up to two grams a day. She calculated the value of the marijuana grow operation located at the Sundale Residence by using a plant yield of 48g/plant, based on Cpl. Krauss’ observations, and multiplied this amount by 524 plants located at the residence.

In total, the yield was 25,152 grams which equalled 55.35 pounds of dried marijuana bud. She assumed a value of 1000 dollars per pound, and concluded that the total value of the marijuana grow operation if sold at the pound level was $55,350. In her opinion this amount of marijuana was not consistent with personal use. [ 50 ] Cst. Trenn also testified that when marijuana bud is being harvested, typically the plants are dried and then the bud is cut from the dried stalk, and further dried on screens, and then ultimately the dried marijuana bud is packaged for sale/distribution.

The overall value of the grow operation depends on whether the marijuana is being sold at the pound, gram or joint level. The smaller the packaging, the greater the revenue from the grow operation. [ 51 ] When Cst. Trenn viewed the grow operation, she agreed it was in a state of being dismantled.

[ 52 ] Cst. Trenn also testified that the presence of weapons was not uncommon at a grow operation, given the prevalence of grow operation rips. Weapons assist in potentially fending off thieves who attend grow operations to rip them off. CCTV is also useful, because it assists in alerting the grower to the presence of unauthorized people at the grow operation. She agreed in cross-examination that these items have other uses as well, including providing security to homeowners.

Similarly, the presence of residents at the house gave it the veneer of normalcy to assist in deflecting suspicion from neighbours that the residence may be a grow operation. [ 53 ] Cst. Trenn also viewed the photos and noticed that there were high pressure sodium bulbs commonly used in grow operations, along with other electrical equipment including ballasts and shrouds, which directed the light onto the plants. She also detected the presence of a hydro bypass located in the garage.

Electrical bypass equipment is expensive and is commonly used to avoid alerting BC Hydro to excessive hydro consumption at residences where there are grow operations. Additionally, a bypass reduces the cost of the electricity, as the energy is being diverted from BC Hydro and does not get recorded by the Hydro meter. [ 54 ] Cst. Trenn was asked what the level of sophistication was of the grow operation she observed in the photos taken at the Sundale Residence.

She noted that it was somewhere in the middle, but she was not asked what factors present in the grow operation caused her to arrive at this conclusion. [ 55 ] There were also fans and charcoal filters used to mask the odour of the growing marijuana and Mylar plastic. In Cst. Trenn’s opinion, marijuana grow operations are expensive to set up, as electrical and green house equipment must be purchased, doors must be reinforced, plumbing and wiring must be enhanced.

Because of the expenses associated with putting together a grow operation, it is not unusual to see multiple marijuana grows occurring at the same site. [ 56 ] In cross-examination she indicated that she did factor in the plants that were still in a vegetative stage when calculating the approximate value of the grow operation. This was because, in her view, the only reason a grower has plants is to bring them to maturation so that they can obtain a full yield from the crop.

Her opinion about the value of the plants in the garage and inside the Budget Rent-a-Van is based on a future projection when they are in maturation, not their actual value at the time of transport. [ 57 ] In her opinion, the grow operation was manually/hand watered. She arrived at this conclusion due to the presence of drums filled with water, and the presence of hoses that appeared to be water line hoses for hand-watering. There was no other evidence of any other type of watering that she referenced.

However, she also agreed that the grow operation was in the process of being dismantled, and she agreed that she did not know what had been taken out of the grow operation before the pictures were taken. [ 58 ] In general she observed that the expense of a grow operation varies, but there is a capital outlay required, and a time factor where operations are stalled when the physical surrounding of the grow operation is prepared.

These factors tend to positively influence the length of time grow operations are set up for. [ 59 ] The doors to the grow operation were secured, in her opinion, to prevent unwanted intruders; but she could not speak to why there was an absence of reinforced doors noted upstairs in the residence. She also agreed that the presence of weapons are not exclusively associated with grow operations, and she has seen them before in homes where there is no grow operation, too.

Similarly, it is not uncommon in Surrey to see private residences equipped with CCTV cameras and security devices. [ 60 ] Similarly, it was suggested to Cst. Trenn, and she agreed, that while families live in a grow operation to give it some normalcy to the neighbours, it is also possible that people live in a grow operation and do not know it is one. [ 61 ] Finally she also agreed that the personal consumption rates she noted were based on people who smoke marijuana, and she agreed there were a number of other ways to ingest marijuana. [ 62 ] Mr.

Stringfellow was qualified as an expert in the area of electrical bypass and theft of electricity. He presently is employed by BC Hydro as an electrician, and often attends when search warrants are executed by police to ensure that the police are “electrically safe” to execute them. [ 63 ] Mr. Stringfellow described an electrical bypass as an electrical diversion, where a conductor is connected to service wires serving a customer before the meter, which measures the volume of electricity consumed by a customer.

He attended to the Sundale Residence on March 20, 2013, with members of the Surrey RCMP, and he observed an electrical bypass in the garage of the Sundale Residence. He followed the wires from the electrical diversion, and noted that they led to a panel in the basement, which in turn had wires feeding high pressure sodium light bulbs. He located timers connected to the light switches, which were scheduled to go on at eight-hour intervals.

He formed the opinion that the electricity used to power these two high pressure sodium lights was not being recorded by the Hydro meter, and in effect was being diverted as a result of the hydro bypass he saw in the garage. Because this electricity was being diverted before it was going through the meter, it was not being recorded.

Accordingly, whoever was responsible for diverting the electricity was not paying for it. [ 64 ] There are hazards associated with a bypass including an elevated risk of fire, and if wires are exposed it increases the chances of someone touching a live wire and being electrocuted. [ 65 ] In cross-examination, Mr. Stringfellow agreed the bypass was drywalled into the garage wall, and that he had to look for it to find it. A bypass is like a junction, and many of those devices are up to code, as junctioning wires is something frequently done by electricians.

Further, if it is properly installed, it is not unsafe; however it must have a CSA approval on it to pass Canadian code, and no CSA approved code was present on the hydro bypass he observed at the Sundale Residence. [ 66 ] Ms. Laurie Ann Havenaar testified that she was a neighbour who lived near the Sundale Residence. She is also a police officer and is presently stationed in Ridge Meadows detachment. She stated that she had been a police officer for 16.5 years at the time she testified in this hearing.

However, while she is a police officer, she came to have personal knowledge about the matters before me in her civilian capacity. [ 67 ] On March 19, 2013, she came home from work around 6:45 PM and saw a landscaping truck at a residence in her

neighbourhood that she suspected may have been a grow operation. She had never seen that landscaping truck before. On that evening when she got out of her car, she noticed a strong odour of growing marijuana on the street. This was a regular occurrence for her, but it was the strongest smell she had detected yet. At about 9:20 PM, before going to bed, she noticed a Budget Rent-a-Van on the driveway of the residence where the landscaping truck had been parked nearby. The Budget Rent-a-Van was parked with the rear of the truck facing the opened garage.

No lights were on in the garage, but she detected movement in the garage. She then called Surrey RCMP to attend. [ 68 ] Ms. Havenaar had lived at that location since December 2007. She knew that there was a dog that lived at that property, because she heard it barking, but she could not see into the backyard, as there were high hedges there. A few months before, she observed that security cameras had been put up at the front of the door of the Sundale Residence.

She knew that a family of four members or more lived there: she saw an adult male and female outside of the house playing with a six-year old female and a two-year old male. She associated the adult male to a gold Highlander motor vehicle that she saw going into the house frequently. She also saw a grey Honda Minivan there, but not as frequently as the gold Highlander. She first noted the family at the Sundale Residence in the spring of 2012. [ 69 ] Jeffery Toews lived near the Sundale Residence at the time of the police attendance there. He had lived there since December 2005.

He generally worked from home during this time frame: about 75% of the time. He recalls the family who was living there at the time police attended. He estimated that they had been residing there for about one to two years before the time police came. He described a family of four living at the Sundale Residence: two kids and two adults. He saw them nearly every day, but they kept to themselves. Mr. Toews has three kids, and his daughter went to the same school as the girl from the Sundale Residence. Not too long after the family moved into the Sundale Residence, he noticed that they got a dog.

It was not a pet, but rather he described it as a guard dog. [ 70 ] He also noticed that there was a marijuana smell that collected at his door. He noticed that the neighbours in the Sundale Residence did not appear to work, as they did not seem to go anywhere. He did not see many people come and go from their house either. He noticed that their windows were sweaty, which seemed unnatural to him; he started noticing this six months to a year after they moved in. [ 71 ] He did not recall seeing the family go away for any length of time, except after the police incident when the house was being fixed.

He was unsure if they were away from mid-December 2012 through mid-January 2013, but then said they were maybe away for the Christmas break but not six weeks. (There is evidence that the Nguyen family went to Vietnam for part of December 2012 and January 2013.) [ 72 ] He observed that there was a bronze Toyota Highlander and a blue Honda Odyssey Van. Early on, there had been a GMC type of cargo van and a blue 4-door sedan.

On the day police attended the Sundale Residence, he noted a gardening truck, 15-20 feet long, that he had seen there once or twice before and a white cube van with Victoria license plates on it that he had not seen before. He agreed in cross-examination that he did not tell police he had seen the gardening truck before. [ 73 ] He noted a smell of marijuana at his residence that seemed to collect at his front door. He smelled it most of the time, but the strength of the odour varied from faint to strong.

He was not asked where the smell came from. [ 74 ] He also noted that the owner of the property did his own lawn maintenance; it was not done by a gardener. He identified the owner of the residence in court as Mr. Nguyen. THE STATEMENTS OF THE ACCUSED [ 75 ] All three accused provided statements to the police. I made findings that the statements were voluntarily given and admissible in the trial. None of the accused had interpreters present. The Crown submits that I can rely on those statements and they should be accorded full weight in these proceedings. Mr. Thai and Mr.

Nguyen submit that their first language is Vietnamese. They do not speak English fluently and these interviews were conducted in English. They submit that I should decline to attach any weight to the admissions made in these statements, because the circumstances in which the statements were taken produced unreliable information because of the language problem. Mr. Le does not specifically raise an issue with respect to his statement taken by Cst. Moon. [ 76 ] Regarding Mr.

Nguyen’s statement, the only portion that I will refer to in this case is the description/lack of description of Tina Chan, his alleged downstairs tenant, which he provided to Cst. Moon. I have reviewed that portion of his statement, and I am satisfied that in respect of that series of question and answers, Mr. Nguyen was able to understand Cst. Moon, and his answers were responsive to the questions and contextually were also consistent with the topic he was being asked about. With respect to Mr.

Thai, his counsel also submits that it would not be appropriate to rely on his statement, given his limited understanding of the English language. In the circumstances before me, it is not necessary to rely on Mr. Thai’s statement, and I do not consider it in these proceedings. I will consider Mr. Le’s statement, as I am satisfied that he understood what he was being asked by Cst. Moon and provided responses to him that were within the range of answers that demonstrated an understanding of the questions being asked of him. EVIDENCE OF THE ACCUSED Mr. Nguyen [ 77 ] Mr.

Nguyen testified with the assistance of a Vietnamese interpreter. He is 50 years old, married with two children who are now approximately nine and five years old. He lives at the Sundale Residence, and did so on March 19, 2013. He had lived there for approximately two years before then. [ 78 ] There was a period of time before and including March 19, 2013, when Tina Chan rented out the house: this was about six months after he first “got” the house and she rented the whole house for three months. She then returned the top floor to him, but kept the bottom floor for herself for about a year and half.

On March 19, 2013, it is Mr. Nguyen’s evidence that Tina Chan was still renting out the basement. He does not recall the precise timing of when the three-month period was when Tina Chan had the whole house, and

he and his wife and two kids rented a two bedroom place. [ 79 ] The Sundale Residence has two self-contained suites; upstairs and downstairs. When he and his family returned to the Sundale Residence, they continued to rent out the basement to Ms. Chan. [ 80 ] Mr. Nguyen testified that he put up an ad at Vietnamese stores to rent his house, and Ms. Chan replied to the ad. She paid $3,000 to rent the entire house, and when she rented the basement, she paid $1,500. On the agreement they had, he paid for all of the electricity, notwithstanding that the account was in her name. Ms. Chan paid him with cash. [ 81 ] Mr.

Nguyen was asked whether anyone moved in with her, and he replied: “I don’t know because it’s her business. She just rented the place and pays me the money, that’s it.” [Transcript: May 22, 2015, page 6, lines 29-31.] [ 82 ] Mr. Nguyen said that Ms. Chan drove a black SUV; he did not know what the make of it was. He also stated that there was no agreement drawn up between them regarding the lease of the house or basement. [ 83 ] Mr.

Nguyen testified in his direct evidence that he installed the “gate” depicted in the photo between the upstairs and the downstairs on the stairs between the two floors because he wanted to keep the units separate. There are two doors in the back of the house where you can gain access to the basement of the Sundale Residence. [ 84 ] Mr.

Nguyen agreed that he heard evidence in the trial that plants were being moved into the Budget Rent-a-Van in this case, but he said he would not have known because he was out of the Sundale Residence when the police arrived. [ 85 ] He also agreed that he heard evidence about there being a grow operation in his house, but he was unaware of this, and only learned of it on March 19, 2013 when he received the notice from the Fire Department, which was posted on his front door. This caused him to go downstairs through the internal staircase.

The first thing he saw was the big electricity box, which scared him, because he was worried about safety, so he followed the wire from that box up to the garage. He did not know what to do with it; he was “very scared”. At that time he also saw the plants in the basement. [ 86 ] Mr. Nguyen was asked whether he knew these were marijuana plants. He replied “I don’t know. I just thought it was very strange, so I just want to get rid of all of the garbage.” Q: Did you call Tina Chan? A: At the time I was very scared. I don’t remember to -- I didn’t even think about it.

All I was thinking was to get someone to come and clean it up. Q: Did you call police? A: No. Q: Why didn’t you call police? A: I didn’t want to. I was afraid of, you know, bad things, so I just want to clean up first. Q: When you say you were afraid of bad things, what do you mean? A: It was kind of strange so I just want to get rid of all of the garbage first. Q: All right, and what did you -- what steps did you take to get rid of the garbage, you mean all -- what do you mean by that?

A: Everything downstair” (sic). [Transcript Reference: May 22, 2015, Page 11, lines 10-32] [ 87 ] Further along in his evidence, Mr. Nguyen testified that he understands that the plants in his basement were marijuana plants. Before March 19, 2013, he had never seen a marijuana plant before. When he saw the plants downstairs that day, he thought they were marijuana plants. He now knows they were marijuana plants. [Transcript Reference: May 22, 2015, page 17, lines 13-31.] [ 88 ] Mr. Nguyen then describes that he called Mr. Thai to remove the garbage.

He called him because he knew he was a gardener, and he also picked up garbage. Mr. Thai came sometime between 6:00-7:00 PM, but then he corrected himself and said between 5:00- 6:00 PM on March 19, 2013. He described that Mr. Thai drove his big gardening truck over. He also had a friend over named Minh, whom he had met when he was fishing on the island. Minh was present throughout, but Mr. Nguyen did not tell Minh about the “stuff going on downstairs” at his house. Later in his evidence Mr. Nguyen testified that he picked Minh up the day before and Minh stayed over the night of March 18, 2013.

On the morning of the 19 th Mr. Nguyen discovered “what was going on in your basement” and he told Minh. Minh helped him clean up after Mr. Nguyen asked him. Mr. Nguyen does not know how Mr. Le came to be at his residence that day, he did not call him. (According to Mr. Le, Minh is Minh Le, who is Mr. Le’s brother, and Minh Le is the one who alerted Mr. Le to the presence of plants.) [ 89 ] Mr. Nguyen denied ever tampering with or putting any wires associated with the hydro bypass. At the time, he did not know it was something installed to steal electricity.

While he and his wife put some of their belongings in the garage, he said he never organized his belongings and did not see the bypass. [ 90 ] When Mr. Thai came over Mr. Nguyen told him to remove all of the garbage downstairs; “clean it up and dump it”. By garbage Mr. Nguyen meant all of the stuff downstairs, and by “stuff” he meant all of the plants and other stuff downstairs. While Mr. Thai was downstairs removing the “garbage”, Mr. Nguyen went to buy food for him, and when Mr. Nguyen returned, he was cleaning in

the basement. Mr. Nguyen asked Mr. Thai to help him in the lower level/basement of the house. When Mr. Thai was asked what he was cleaning, Mr. Thai said he was picking all of the stuff downstairs and putting it in garbage bags for Mr. Thai to take away in his truck. (Mr. Thai in his evidence said that Mr. Nguyen made him noodles and then they both went out to Tim Horton’s afterwards.) Mr. Nguyen changed his evidence to say he actually made Mr. Thai noodles, and that he did not go out to get them, and then he went out with Mr. Thai after he ate at Tim Hortons for around an hour.

He also recalled that the big Budget Rent-a-Van arrived at his residence that day after Minh arrived. He did not know the person driving it, but he now knows it was Le Van Lai. He denies putting any plants into the back of the Budget Rent-a-Van or moving any plants upstairs from the basement to the garage. [ 91 ] After Mr.

Nguyen started cleaning up, he saw the police and he was afraid, so he and his family walked out of the back of the house, down the stairs into the yard and out to his brother’s house. [ 92 ] He was also shown the photos that depicted the bear spray, some knives and the video/CCTV and was asked why he had them. He answered that he had them “just in case people knock at the door”, and then he said “in case there is a breaking in”. [ 93 ] In cross-examination by Mr. Morahan, Mr. Nguyen identified a male on the CCTV at 2013/03/19 at 9:22:56 as Minh Le.

He is the person beside the garage door. [ 94 ] In cross-examination by Mr. Jessop, Mr. Thai’s counsel, Mr. Nguyen agreed he had met Mr. Thai before on several occasions. He knew he had a gardening business and that he would make trips to the dump in the course of that business. Mr. Nguyen then also agreed that Mr. Thai and he went to Tim Horton’s together, for over an hour that night. He did not mention this in his direct evidence. Mr. Nguyen said he went out to buy Mr. Thai food. In cross-examination his evidence on this point changed, too. He agreed he cooked Mr.

Thai noodles and then they both went out together to Tim Hortons for over an hour. [ 95 ] In cross-examination by Crown counsel, Mr. Nguyen testified that he was working in the months before March 19, 2013, but when asked where he was working his answer was “can’t recall exactly”…“been awhile. I can’t recall exactly.” [Transcript reference: May 22, 2015, page 22, lines 43-46.] [ 96 ] There is a continuing exchange about where and when Mr. Nguyen was working. Q: You can’ t recall where you worked? A: I worked at different places. Q: What different places. A: I paint. I was painting. Q: What were your hours?

A: Morning to the afternoon. Q: What time in the morning did you leave? A: Depends if there was work. I go whenever there was work available. Q OK, so approximately how many days a week did you work? A: Depends. In the winter is less work and summer there is more work. [Transcript page 23, lines 1-15] … Q: So you cannot recall when you went to Vietnam and you can’t recall where you were working at the time? A: Cause I don’t -- it is not very important, so I don’t remember, don’t recall right now. [Transcript page 23, lines 27-32] [ 97 ] Mr.

Nguyen also indicates that he was in Vietnam in early 2013, and that his passport has the dates. His passport does indicate he was away from Canada for a period in December 2012, continuing for several weeks in January 2013. [ 98 ] He indicated his wife worked at a mushroom farm. There were no specific hours; she just went when they called her. It was suggested to him that he did not have a substantial income at that time. He did not answer the question; instead he said, “I have work in the summer and in the winter is less work”. [Transcript, May 22, 2015, page 23, lines 44-47.] [ 99 ] Mr.

Nguyen was asked why he rented his house to Ms. Chan, and he said he did so because he needed some help with the mortgage. But by the time he moved back in to the Sundale Residence, he was not still struggling to pay the mortgage. [ 100 ] Mr. Nguyen had not previously known Ms. Chan. He did not do any background checks on her, nor did he ask for any references from her. He put the hydro bill in her name when she moved in, and later he agreed with her that he would pay for the hydro. He could never be bothered to change the hydro from her name to his name after she moved in to the basement only.

It was a problem for him because his English is limited. [ 101 ] Mr. Nguyen testified that Ms. Chan paid him monthly, and she brought the rent upstairs to him. Crown counsel then asked him

to provide a description of Ms. Chan, and he said she was a “40-50 year old female”. Crown counsel suggested that when he gave a statement to Cst. Moon, he could not provide a description of Ms. Chan to him. He explained that he did not wish to “create an enemy”. The other Vietnamese interpreter then suggested that she had heard something to do with revenge. Crown counsel then asked Mr. Nguyen if he “was not worried about revenge when you describe her in court?” Mr. Nguyen answered “in front of the court I have to tell the truth”. [Transcript, May 22, 2015, page 30, lines 14-30.] [ 102 ] Mr.

Nguyen was also asked whether he heard Ms. Chan downstairs, and he said he did not pay attention. She used the back door to come and go from the basement. He was then pressed on what door she used to access the basement, and he said, “I’m not sure which door she used”. It was then suggested to him that, “you said you saw her come and go from the house. You would know what door she uses”. Mr. Nguyen then changed his evidence and said: “She use both doors”. [Transcript, page 30, line 38 – page 31, lines 1-4.] [ 103 ] He said he never detected an odour of marijuana in the 1.5 years Ms.

Chan was renting the basement. [ 104 ] Mr. Nguyen agreed that between the upper floor and the basement there was a wooden door, and there was a lock on both sides of the door. Upstairs, from his side there was a lock, and he had a key for the lock on the wooden door. In the basement area there is a hallway, and he testified that there was another door down there, and it had a lock. On this side, (I believe he meant the upstairs side), there was a lock on the second wooden door.

He put the padlock on his side of the wooden door on the gate before he went to Vietnam and then he looked at his passport and said he went to Vietnam from December 9, 2012, until January 16, 2013. He testified that he put the padlock on for the safety of the upstairs. In cross-examination, Mr. Nguyen initially indicated that he put the lock on the gate before he left for Vietnam, but Crown then asked him a number of questions about why he put up the gate. Mr. Nguyen did not correct the Crown that the metal door was put up earlier.

Instead, when the Crown suggested to him that he had just put up the gate, and questioned him about the necessity of doing so, he replied it was because he had been locking the basement door that separated the two suites for more than a year, and that he had no concerns about that arrangement before. He said that he asked Tina Chan to keep an eye on his house when he was gone, but he put up the lock and possibly the metal gate because he did not want her coming up and down.

He was then questioned about having the wooden door on the other side of the gate locked for the last year when she was down there, and he had no concerns about that entryway before. He agreed that he had no specific concerns about that entryway before. [ 105 ] Mr. Nguyen was then asked if he ever saw anyone else come and go from the basement, and he replied that occasionally Ms. Chan came with a friend. Earlier in his direct evidence at page 6 he was questioned about who lived with Tina Chan, and he replied that he did not pay attention because it is her business.

He also said that she just rented the place and “she pays me the money, that’s it”. These two statements appear to be contradictory. As does his statement at page 33, lines 29-47, where he says that “occasionally he goes down and inspects the basement”. [ 106 ] Mr. Nguyen was asked when the last time prior to March 19, 2013, that he had inspected the basement, and he said, “it had been awhile”, although he then agreed he was seen coming out of the basement door on March 17 th , which is only two days before the 19th.

It was then shown to him that he had entered through the glass screen door on March 13 th and the 17 th . He said he had a key to go down there, but he did not go into her room. Crown counsel then asked Mr. Nguyen: Q: Okay. Now when you are seen coming out of-- the basement-- out of the basement door, where were you coming from, do you recall? The Interpreter: Where. Q. Where was he coming from? He was coming--leaving the door, leaving the house from the door. A. Probably the upstairs, down to the hallway into the kitchen and out. Q. So you went from upstairs, down the hallway, through the basement and out.

A Yes. Q. Did you make any observations of anything at that time? A. No [Transcript, May 22, 2015, page 37, lines 26-40.] [ 107 ] It appears from this series of questions and answers that Mr. Nguyen was in the basement area and came through the kitchen and out the back door. In any case, it appears to be inconsistent with his evidence given in his direct examination that he does not pay any attention to Ms.

Chan, as it is not his business. [ 108 ] He also agreed that he and his wife used the garage in the house, but when asked if he organized the garage he said he just “put stuff in there”. [ 109 ] When he received the notice from the city, he testified in cross-examination that he did not call Ms. Chan before going in to her private space. He accessed the downstairs through the internal door between the two spaces. He had a key for the metal gate and the wooden door, and gained access and “you noticed all of this stuff”?

He denied seeing any of it two days earlier when he had been down there. [ 110 ] He was then asked, “You also stated earlier that you -- when you saw the plants you knew they were marijuana plants, correct? He answered, “I don’t know, but I think it maybe it is the plants”. [ 111 ] He indicated that he knew that marijuana plants were illegal. He was asked why he did not call Ms. Chan. He said he was scared, he did not want trouble with the police and he wanted to clean it up. That is why he said he called Mr. Thai to come clean it up

and get rid of it. Although, as noted in cross-examination by Mr. Jessop, notwithstanding his fear, he still went out for coffee for more than an hour after Mr. Thai arrived. [ 112 ] Mr. Nguyen also testified that he did know there was a Budget Rent-a-Van at his house on the 19 th of March, but that he did not know why it was there. He was asked if he was outside of his house when the truck came, and he replied he was home. He was then asked if he was on the driveway when it arrived and he said yes. But he maintained he did not know why the Budget Rent-a-Van was there.

He was asked if he ever questioned why the Budget Rent-a-Van was there, and he did not answer the question, instead he answered “I didn’t know”. [ 113 ] In his evidence in direct examination he was asked: “We have heard evidence that when the police arrived marijuana plants were being moved into the Budget rent -a-van, do you recall that?” He answered: “I was out so I wouldn’t know” [Transcript, May 22, lines 7-10]. [ 114 ] Mr. Nguyen was asked by Crown counsel in cross-examination about Minh Le and what happened to him when the police arrived.

He answered, “He went out when the police arrived” Q: “So he left the house?” A: “Yes.” [Transcript May 22, 2015, page 41, line 10-17]. It is unclear to me how Mr. Nguyen would know that Mr. Minh Le went out when the police arrived if, as he said earlier in his direct evidence that “he was out”. [ 115 ] Mr. Nguyen was asked why he left his residence when the police came, and he said it was because he was scared.

He was asked if he packed the blue plastic bin containing pictures and iPads, and he said he did so because he was afraid somebody might think it was garbage and throw it out. [ 116 ] He then said that he took his family for drinks to the gas station and then to his brothers, although in direct examination he only indicated he went to his brother’s house, and did not provide the extra detail of going to the gas station. He also agreed he left his big dog behind.

He testified that he had the big dog because kids used to come into his back yard and poo and destroy his property. [ 117 ] He was also questioned about his CCTV cameras, bear spray and knives located at this house. He said he possessed those because he was worried about break-ins. Crown counsel questioned him about why he needed four different camera angles covered. He said that his kids always open doors and run out of the house, and these cameras allowed him to see them.

This answer seems a bit curious to me as the CCTV video monitor is located in a bedroom, not in the common area/kitchen of the residence. [ 118 ] In re-examination he said he did not go into any doorways between the stairs and the outside entrance under the stairs because there was personal stuff there. I note he did not have that same concern on March 19 th , when he testified that he did not call Ms. Chan when he received the notice from the fire department; rather he just went into the basement directly.

He also seemed to indicate in his evidence earlier that he did sometimes come down and take a look, because he was the landlord and he had the right to do so. But he also said he did not use the key to go into her room, except apparently on the day he received the notice, and then he did not call her. [Cross- reference page 37 of May 22, 2015 Transcript.] [ 119 ] Mr. Thai gave evidence as well in these proceedings. He is from Vietnam and now lives in Canada. He has a wife and two daughters, and is 54 years old. He is a landscaper by trade.

His company he owns is called Summer Garden Services. [ 120 ] He recalls speaking with Cst. Moon, and he had difficulty understanding him, because Mr. Thai does not speak English well and he was nervous. [ 121 ] He knew Mr. Nguyen before. They met three to four years before, and had seen each other a few times. On March 19, 2013, he got a call from Mr. Nguyen around lunch time. He requested that Mr. Thai come to his house and pick up some garbage. He worked until 5:00-5:30 PM, and then went to Mr. Nguyen’s house where he arrived between 6:00-7:00 PM. [ 122 ] When he got there Mr.

Nguyen provided him with some noodles. Minh was there also. They took about 45 minutes to eat and then they went for coffee to Tim Hortons for 45-50 minutes. When they returned, Mr. Thai was in the living room for a short period of time, and he saw the truck back up close to the garage; then Mr. Nguyen asked him to go get the garbage downstairs. He went downstairs and saw a lot of plants and garbage there. He did not think about whose plants they were. At that time, he had never seen a marijuana plant before, except in the newspaper, and he was kind of scared.

He moved plants from the basement to the garage so he could get at the garbage. Both Minh and Mr. Le were in the garage when he moved the plants there. He planned to go to the dump. [ 123 ] Mr. Nguyen was going to pay him $400 once he took the garbage away and cleaned up. [ 124 ] He estimates from the time he returned after coffee until the police came was about 20-30 minutes. He learned the police arrived, because he heard Mr. Nguyen say the police are coming, the police are here. [ 125 ] In cross-examination, Mr. Thai indicated that he and Mr.

Nguyen were not close friends, yet they are in a photo depicting a birthday celebration. [ 126 ] Mr. Thai was asked about what he meant by garbage, and he said that he was supposed to take plastic bags, chairs, “stuff you don’t use and need to get rid of”. He did not get a chance to clear out the garbage because when he was moving the plants so he could get to the garbage, the police arrived. He had no plans to take any of the plants. He just put the plants in the garage so he could get to the garbage, nobody told him to do that. He moved the plants to the garage because he did not know where else to move them.

In his direct evidence, he noted that he waited to move garbage until the truck came. It seems like a large coincidence that he moved plants up to the garage so he could get at the garbage, and waited to do this until the Budget Rent-a-Van came. It is even a larger coincidence, in my view, that he moved only the plants in the vegetative stage and no plants with bud on them. Further, the number of plants that he moved up to the garage coincided roughly (139 vs 146 plants) with the number of plants Mr. Le was licensed to possess at his production site. [ 127 ] When Mr.

Nguyen advised him that the police were there, Mr. Thai said that he was at or in the garage, and he remained there.

He went into the house, but then he came out again because he believed that he had done nothing wrong. [ 128 ] Lai van Le gave evidence. He is 36 and has two children aged 9 and 7. He was previously married for 10 years. Presently he lives at 1895 Landsdown, Victoria, BC. [ 129 ] Previously he worked as a nail technician in Duncan, BC, and before that he owned a restaurant. He testified that he can read some English and speak some of it, too. [ 130 ] Exhibit # 31 is a Medical Marijuana Production License issued to Mr. Le.

It licenses him to produce 146 marijuana plants at an indoor production site at 1101 Finlayson Arm Road, Victoria, BC. The expiry date is September 14, 2013. This is the license he relies on that licenses him to produce 146 plants at that production site. The date of issue for this license is February 4, 2013. [ 131 ] Exhibit #32 is an authorization to possess 900 grams of dried marijuana in the name of Lai Van Le at the Dogwood Road residence. The date of issue is February 4, 2013. [ 132 ] Exhibit #33 is a Medical Marijuana Production License issued to Mr. Le.

It licenses him to produce 146 marijuana plants at an indoor production site at 3025 Dogwood Road, Duncan, BC. He never possessed any plants at this location as this was his mother’s home and he was not comfortable possessing plants there. The date of issue is September 14, 2012. [ 133 ] Exhibit #34 is an authorization to possess 900 grams of dried marijuana at any time. It is dated September 14, 2012. [ 134 ] Mr. Le made an application to change these licenses and obtained a new license to produce/store marijuana effective February 4, 2013.

The new address for the storage/production site was Finlayson Arm Road in Victoria, BC. [ 135 ] He never met Mr. Nguyen before the 19 th of March, 2013, but he had met Mr. Thai on a couple of occasions. He met him at karaoke bars where Vietnamese people go, when he would go there to buy food and supplies for his Vietnamese restaurant. [ 136 ] He had never been to the Sundale Residence before 9:21 PM on March 19, 2013. He arrived there because his older brother Minh called him and told him to go to that address. Minh told him that there were small marijuana plants there and he could go and pick them up.

There was no discussion about whether he would have to pay for these plants. He thought he would get the plants for free. [ 137 ] At the time he received the call, he was in Victoria and his brother told him he needed to go this residence as soon as possible. He said he got the call at 5:00 PM on March 19, 2013. His brother knew he had a license to produce marijuana, as he showed him the license and they had also spoken about it.

He also previously told Minh he was looking for plants for the production site. [ 138 ] When he got the call from Minh, he testified that it was his belief that he could pick up and be in possession of those plants to transfer them to his licensed production site at Finlayson Arm Road, in Victoria. There was nothing on the face of the license that said he could not do this. Furthermore, there was no term in his license about how to get plants to the production site.

He has a grade 3 education and has limited skills in reading English, which is his second language. [ 139 ] He was asked how he thought he would get plants for his production site, and he answered that it said he could grow from seed, but he did not know how to do that. There was no information in the license about what method he could use to obtain plants for his production site. [ 140 ] Upon receiving the call from his brother, Mr. Le testified that he rented the truck at the Budget Rent a Car in Victoria, caught the ferry and made his way to the Sundale Residence.

His purpose in going was to get the plants to bring them to 1101 Finlayson Arm Road in Victoria, where he was licensed to produce marijuana. He planned to take only 146 plants to comply with his license. When he arrived, he backed his truck into the garage and saw his brother there. He then began loading the plants, when the police arrived. He last saw his brother about five minutes before the police arrived; he was not there when the police came. He did not mention his brother’s name or that he had been the one to call him about the plants to Cst. Moon because he did not want to get his brother in trouble.

In cross-examination he could not come to identify any reason why he thought his brother would get in trouble. [ 141 ] When he gave his statement to Cst. Moon, he said that Johnny Nguyen called him, but he acknowledged that is not the case: it was Minh, his brother, who called him. He also said he lied to Cst. Moon when he said in his statement that he met Johnny Nguyen at a party. He was being truthful when he said he went there to Sundale Residence to get the plants for his production license. He believed he had the right to transport the plants to his licensed production site.

He said he did not know of any license that he could obtain to transport the plants. He also said he took control of less than 146 plants which was the limit his license permitted him to possess. [ 142 ] He agreed on cross-examination that he had never met Mr. Nguyen before that date. When Cst. Moon took a statement from him, Cst. Moon showed him a photo, but there is no evidence before me about what photo he was actually shown, or who the people are. [ 143 ] The marijuana plants were brought up from inside the house into the garage after he arrived at the Sundale Residence.

He thought the marijuana plants were about two weeks old from research he had done on the internet, but he said he had never grown marijuana before. He had done some research on the internet about growing marijuana, but did not know specifically how to grow it from seed or clones. He was not asked any specific questions about the type of research he did, where he looked, or what kind of questions/issues he researched. [ 144 ] Mr.

Le agreed he did not make inquiries about how to set up a marijuana production without using plants, nor did he make any inquiries with Health Canada, nor did he phone their toll free number that was displayed prominently on his license.

He was told by some people he knew that it was possible to grow marijuana from seed or clone, but he did not know anyone in Victoria that he could contact to help him with this. (On the face of the licenses that are filed as exhibits in these proceedings there is reference to attachments to the license, but it is important to note that none of those attachments were filed in these proceedings. Accordingly, I do not know what if any information they have on them about producing marijuana. It is not open to me to speculate about the contents either.)

[145] In the past he had received marijuana from a friend. He did not pay his friend for it. His friend also had a license for it. Thiswould be his first time actually growing marijuana. [146] He agreed he was found with approximately $3,000 when the police arrested him at the Sundale Residence. He said it was topurchase food for his restaurant. However, he told Cst. Moon in the statement he provided to him that he had sold his restaurant to hissister.

After this was pointed out to him, he clarified his evidence and said he was still working there and would buy supplies later thattrip, even though he no longer owned the restaurant. It was quite late in the day when he came over to the Sundale Residence fromVictoria, and the purpose for attending was to obtain and transport the plants to his licensed production site in Victoria. [147] He planned to sleep in the truck and take the plants back to Victoria the next day. CREDIBILITY ASSESSMENT [148] All of the accused have testified in this trial.

Accordingly, I must assess the evidence of each of the accused, being mindful thatthe principles of reasonable doubt apply to the assessment of the accused’s evidence. [149] In R. v Storey, 2010 NBQB 86, at para. 78, Ferguson J. provided an extensive and helpful analysis of the principles to be appliedwhen assessing credibility: In the final analysis it becomes a matter of determining the veracity of the evidence utilizing the age old tools of logic, reason andcommon sense in measuring the probability, if it is deductible from the evidence, that the witness or witnesses’ honesty on the centralissue or issues is assailable. [150] I must also apply the principles articulated in W. (D.) v The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.),at p. 409: • First, if you believe the evidence of the accused, obviously you must acquit. • Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [151] The middle step of W. (D.) is an essential aspect of the application of reasonable doubt to issues surrounding credibility.

Specifically, trial judges must assess whether the defence evidence, in the context of the evidence as a whole, leaves the trier of fact witha reasonable doubt. In R. v. Minuskin (2003), (ON CA), 181 C.C.C. (3d) 542 (Ont.C.A.) at para. 22, Rosenberg J.noted: It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula.

This suggested instructionwas intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words.Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused'sevidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the daythe trial judge has had regard for the basic principles underlying the W.(D.) instruction.

One of those principles is that it is not necessaryfor the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes theprosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt.

As it was put by Cory J. in W.(D.) atp. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as tothe accused's guilt "after considering the accused's evidence in the context of the evidence as a whole". [152] In assessing the evidence in this case I must be also be mindful that while there are inconsistencies in the accused’s evidence, Imust assess whether those inconsistencies are material, rather than just peripheral. In other words, I must determine what thesignificance is of those inconsistencies.

ASSESSMENT OF THE EVIDENCE [153] Mr. Nguyen testified in these proceedings, and I have summarized his evidence above, including some of the areas in which hisevidence was internally inconsistent, externally inconsistent, or otherwise vague. [154] I have listed some of the areas where I find his evidence to be inconsistent, not reliable and not credible. [155] In his direct evidence, Mr.

Nguyen indicated that he installed a metal door between the upstairs and downstairs levels in theSundale Residence because he wanted to keep the units separate, although he acknowledged that there was also a wooden door at thebottom of the stairs separating the upstairs and the downstairs, which had a working locking mechanism. In cross-examination, he saidhe put a lock on the gate when he left for Vietnam because he wanted to keep Tina Chan out of his residence, and for safety. [156] Additionally, Mr. Nguyen was asked whether he knew that the plants he discovered in the basement were marijuana.

Initially,he replied “I don’t know, I just thought it was very strange.” However, he also stated that when he received the notice from the City onMarch 19, 2013, regarding the inspection, he went downstairs. It was his evidence that he was very scared after having seen theelectrical box and wires, and plants. Further in his evidence, Mr. Nguyen acknowledged that he thought the plants were marijuana, butthat he had not seen a marijuana plant before. Eventually, he agreed that he knew they were marijuana plants. Mr.

Nguyen seemed veryunwilling, in his evidence, to admit knowledge that the plants were marijuana plants. His evidence about being scared and calling Mr.Thai to help him remove the plants is not consistent with not having actual knowledge of the plants being marijuana. I find that Mr.Nguyen was being deliberately vague about this. [157] Furthermore, Mr. Nguyen said that he did not call Ms. Chan upon receiving a notice “from the fire department” advising of a

forthcoming inspection, which was to be the same day the police came. Instead, he went downstairs in the Sundale Residence, through the internal staircase, to the basement. Previously, Mr. Nguyen testified that while he went into the basement on other occasions, he never went into any of the rooms that Ms. Chan rented because he did not want to violate her privacy. Nevertheless, on March 19, 2013, after receiving the notice, he did not call Ms. Chan to advise her of the notice. Rather, he went downstairs to the basement to inspect it for himself.

Curiously, on this date he did not have the same regard for her privacy that he had expressed earlier in his evidence, wherein he had stated he did not go into Ms. Chan’s private spaces in the basement, nor pay attention to her attendances at the residence, nor who she was with, because it was her business, not his. [ 158 ] Mr. Nguyen testified that when he went downstairs he saw the big box with electrical wires coming out of it and this scared him.

He then went to look in the rest of the basement area and discovered plants that, initially, per his evidence, he was reluctant to even acknowledge he knew were marijuana plants. Upon discovering this downstairs, he still did not call Ms. Chan, nor did he call police. However, he called Mr. Thai, whom he states he knew to be a person who had a truck and would remove garbage. I find Mr. Nguyen’s expressed concern for Ms. Chan’s privacy, and hi

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