R. v. Le Date:, 2011 BCPC 413

Citation: R. v. Le Date: 20111103 2011 BCPC 0413 File No: 201426-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THI QUY LE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown: T. Johnson Counsel for the Defendant: D. Fai Place of Hearing: Vancouver , B.C.

Date of Hearing: November 3, 2011 Date of Judgment: November 3, 2011 Introduction [ 1 ] THE COURT: The accused, Thi Quy Le, has been charged with production of a controlled substance, being cannabis marihuana, and also has been charged with possession for the purpose of trafficking in relation to cannabis marihuana following a search of a residence on or about April 1, 2009, in Burnaby, British Columbia.

Issue [ 2 ] The sole issues to be determined are whether or not the Crown has established beyond a reasonable doubt, on all of the evidence, that the accused did actively participate in the cultivation of the cannabis marihuana grow operation and, secondly, has the Crown established beyond a reasonable doubt that the accused had in her possession marihuana for the purpose of trafficking? Background [ 3 ] On April 1st, 2009, at approximately 9:40 in the morning, police members of the Burnaby RCMP armed with the authority of a

search warrant entered and searched a property at 4634 Canada Way in the City of Burnaby. The residence was a two-level family detached dwelling house. As a result of the search, over 150 photographs were taken and form part of Exhibit 1. Within the interior of the residence a total of 480 marihuana plants were located as well as the usual equipment consistent with a marihuana grow operation including shrouds, box fans, sodium lights, charcoal filters, ballasts, without being exhaustive. [ 4 ] The marihuana grow operation was located in the basement of the residence.

Access was made from the top floor of the residence as the basement door was barricaded. The grow operation contained four rooms with marihuana plants in various stages of growth. An electrical bypass was installed with respect to this marihuana grow operation. [ 5 ] In the upper portion of the house, there were two bedrooms, being a northeast and a southeast bedroom. There was a kitchen, family room or dining family room area, and a bathroom. [ 6 ] At the time of first contact by the police at the residence, it was the accused, Ms.

Le, who came to the back door and opened the door to permit the entry of a Constable Chan. Constable Chan's actions followed a knock and announce at the front door of the residence. No issue has arisen with respect to the integrity of the knock, announce, and entry of the police. [ 7 ] Sergeant Korbely was the first witness called by the Crown.

Constable Korbely, along with other members, entered the residence and he conducted an initial search of the residence taking photographs, many of which are contained in Exhibit 1. [ 8 ] It was noted that in the northeast bedroom, there were plastic bags containing soil by-products and there was also Mylar, which is a product used in marihuana grow operations. There was a sliding door closet which contained ducts along with shrouds. Along the exterior ceiling wiring was visible.

In the southeast corner, there was another bedroom with two mattresses side by side, with clothing scattered on the floor and in the closet of that room. [ 9 ] Sergeant Korbely also took photographs of the bathroom and it was noted, and confirmed in evidence of other officers called, that in photograph 45 of Exhibit 1, there were female hygiene products including Tampax in the bathroom, three toothbrushes, creams and lotions, along with towels and some clothing in that bathroom.

That clothing included a pair of jeans apparently with safety-pin connections down the legs and a pair of corduroys over the towel rack. [ 10 ] In the kitchen area, there was a back door leading from the residence. Along the counter to the back door was a package of cigarettes and a set of keys. Sergeant Korbely also took photographs of various items in the kitchen area including nutrients and fertilizers found in cupboards. These would not be in plain view. Next to the back door was a shoe rack containing shoes.

Next to the shoe rack, was a set of female boots. [ 11 ] Also noted by Sergeant Korbely by the back door was a dog dish containing water and a dog dish containing dog food. To the side of the shoe rack was a large bag of what appeared to be dog food. [ 12 ] The kitchen range was also depicted in the photographs. On top of the range is a standalone separate stove. In the cupboard adjacent to the kitchen range was a propane bottle with red duct tape secured around the nozzle. [ 13 ] Photographs of the family room or dining room revealed a television beside the fireplace.

Cardboard covered the fireplace and was affixed with duct tape. Wires could be seen coming through the area of the fireplace. There was a large television, as well, located adjacent to the fireplace. A desktop computer with monitor was also noted. There was also an oriental-like shrine which appeared to have fruit at the front of the shrine which was located near the fireplace. [ 14 ] When Sergeant Korbely got to the stairs leading to the basement, it was apparent from the photographs that a bright orange light was emanating from the bottom of the stairwell.

A Mylar cover that was installed was partially displaced at the bottom of the stairwell. The sergeant went into the basement and located a marihuana grow operation. [ 15 ] The basement door to the residence was barricaded and the through-door peephole covered. If one was to gain entrance to the marihuana grow operation, that person would either have to make a dynamic entry through the basement door with a battering ram or via the upstairs of the residence. [ 16 ] A white Nissan Pathfinder bearing licence plate 831 KRT was in the driveway within the carport.

The keys that were located in the kitchen unlocked both the house deadbolt to the back door and the door handle lock. The same keys had a separate automobile key on the key ring. That key opened the door and started the Nissan Pathfinder. The registered owner documents filed by the Crown established that the registered owner of the vehicle was the accused. Other keys were located in the residence principally on the daughter of the accused. Those keys did not open any doors to the residence or to the Pathfinder. [ 17 ] I would note that Sergeant Korbely noted an odour of marihuana within the residence.

This was confirmed by other members and the odour varied between moderate to slight. [ 18 ] Constable Lee [phonetic] was also part of the entry team. Constable Lee entered the residence, smelled an odour of growing marihuana, and made observations of the size of the marihuana grow operation at 480 plants. [ 19 ] Constable Chan gave evidence with respect to her entry through the rear door. She initially was tasked to surveil the residence and, upon entry by members at the front door, it was her next task to gain entry through the rear door.

This type of entry is common practice and part of the protocol for a marihuana grow operation and was not challenged by defence counsel. [ 20 ] Upon determining that there had been a knock and announce at the front and before Constable Chan could open the rear door or ask that it be opened, the accused opened the door and invited the police to enter. [ 21 ] At that time, Ms. Le was holding a small Chihuahua dog in her arms; was lightly clothed; appeared to be sleepy; was not wearing any socks or other footgear. It was the opinion of Constable Chan that she seemed to have recently awakened. There were two other

persons within the residence, being the son of the accused and the daughter. They were all positioned in the living room which, again, is common practice to ensure containment and to avoid contamination of the scene. Constable Chan described the other two individuals as also being lightly clothed. [ 22 ] There was a futon in the family room or dining room area that appeared to have various items on it consistent with people using or sleeping on that futon. A Louis Vuitton purse or of similar style was located and associated to Ms. Le.

A British Columbia driver's licence was located within that purse with the face of Ms. Le, and that licence was seized and later returned the next day to Ms. Le. [ 23 ] Other documents were found in the purse of Ms. Le not in the name of Ms. Le. Also located were documents and items relating to Ms. Le including Toronto Dominion Trust bills along with some auto bills, a bill in relation to an HP computer and other personal items, including makeup. [ 24 ] There was a purse associated to the daughter. Keys were located in that purse, but those keys were not associated to the Nissan or to the residence.

I find that only one set of keys were located that opened the locks to the upstairs of the residence or the Nissan. [ 25 ] Constable Chan further noted that the futon was pulled out and that there were food items located in the kitchen and in the living room area. Those food items were clearly depicted in the photographs and included a variety of things from breakfast cereal through to food consistent with lunch and dinner. [ 26 ] She also noticed the television in the living room and made other observations consistent with that of Sergeant Korbely. She did note that the desktop computer appeared to be on.

Again, she noticed the three toothbrushes depicted in the photographs along with the feminine hygiene items which are noted in the photographs. [ 27 ] The next day with another officer she returned the driver's licence to Ms. Le who was now outside of a residence in Vancouver. The residential address on the licence was 349 East 50 th. Such a residence did not exist. The numeric address of 369 did exist. When the inconsistency was put to Ms.

Le, she gave an exculpatory statement to the police that there must have been a mistake made either by her in giving the information to Victoria or by the Superintendent who issued the licence. It was noteworthy she was in her Nissan Pathfinder at this time. [ 28 ] In cross-examination, Constable Chan agreed with Mr. Fai that Ms. Le provided an explanation for the address error and further that the address on the licence was a Vancouver address and not a Burnaby address. Indeed, it was also noted through cross of Constable Chan that Ms. Le was not the subscriber of electricity to this residence.

She was not the lessee or renter of this property. She was not the registered owner of the property. It was also confirmed in cross-examination that there was no odour associated to Ms. Le in the nature of marihuana, nor were there any leafy substances found on her when Constable Chan made her observations. [ 29 ] Constable Lively's role was to detain persons within the residence while the search was pursued by other members. Constable Lively also noted the accused holding a small Chihuahua dog in her arms. Constable Lively confirmed that the other two occupants were the children of Ms.

Le and they provided identification in that regard. [ 30 ] Ms. Le was under arrest after the police entry. She was lightly clothed. She was asked to get proper clothing as she appeared to be chilly. She put on a white jacket. Constable Lively indicated that when she went with the accused to get some other clothing gear, Ms. Le went to the bathroom and was going to put on jeans with the safety pins but was told, for safety reasons, she could not wear the jeans. She then removed a pair of corduroys which were on the towel rack, put the corduroys on.

When leaving the residence she put on boots next to the back of the rear door adjacent to the shoe rack. [ 31 ] Constable Greenhauth testified that on March 3rd of 2009, he had conducted an external surveillance of the target property and had seen on that date the same Nissan Pathfinder with plate number 831 KRT. It was located at the property, but not in the carport, but partially to the north or the south of the carport. The import was that it was not in the carport. [ 32 ] This officer returned with the search team on April 1 of 2009 and, upon entry he smelled a strong odour of marihuana.

He gave consistent evidence with the other officers with respect to observations made respecting house contents. [ 33 ] One thing of note with respect to this officer was he noted the portal to the attic in the hallway of the upstairs of the residence had wind coming through it. There appeared to be - and that was noted in the photographs - some debris around the portal to the attic. He also confirmed that the desktop computer appeared to be on and there was a game on the monitor screen.

He was the one who tested the keys located in the kitchen. [ 34 ] In cross-examination, he confirmed that there was a small hinged gate at the top of the stairs leading to the basement and that there was other identification located in the residence including a prescription not in the name of Ms. Le. [ 35 ] Staff Sergeant Murphy gave opinion evidence with respect to marihuana grow operations. He has testified in that capacity in the Provincial and Supreme Courts of this province and his qualifications were not challenged by Mr.

Fai. [ 36 ] As marihuana grow operations go, it would be described by Staff Sergeant Murphy as a relatively average marihuana grow operation, not as sophisticated as many, but not insubstantial. [ 37 ] He testified on the cycle of growth and harvesting of marihuana grow operations. He testified they do require care and attention.

He further testified the purpose of resident caretakers was to create a degree of normalcy to the property which would also afford protection for the marihuana grow operation and provide safe access to the actual owners of the marihuana grow operation. [ 38 ] Resident caretakers as occupiers do not necessarily own the marihuana grow operation. Indeed, the actual owner of a marihuana grow operation would be unwise in putting himself or herself in a position of being found at the marihuana grow operation as the risk factor would be significant.

[ 39 ] The accused elected not to testify as was her right. [ 40 ] Mr. Fai proceeded to an insufficient evidence motion accepting that there was some evidence with respect to both counts, but that in relation to all of the evidence in a circumstantial evidence case, that the Crown had not established beyond a reasonable doubt that in relation to Count 2 that his client had the requisite consent, knowledge, and measure of control to find possession of the marihuana grow operation.

In addition in relation to Count 1, it was submitted that she was not an active participant in the grow operation, but was rather a transitory resident and that such a finding would be a rational conclusion that she would spend an occasional night at the residence. It was further submitted that this court could not rule out that others were involved, including the son and daughter, as principals. [ 41 ] Defence counsel noted that the accused was not the Hydro subscriber.

She was found upstairs in the residence with her children and not in the basement. [ 42 ] It was noted that in relation to the keys depicted in the photographs that there was a Pathfinder identifier label much like a fob connected to another ring clipped in to the set of keys. As a result it was submitted another rational explanation was that the children could be driving the Nissan and having control over the premises with the door entry key. In addition that mail that was located in the residence, some of it in her purse was not associated to the accused.

At the end of the day, it was argued that at best what the Crown had established was that Ms. Le was at the residence as a transitory resident, but not as an occupier or resident caretaker. [ 43 ] Mr. Fai provided to the court the following cases: R. v. Lee and Pang , 2011 BCPC 21 , a decision of my brother Judge Woods; R. v. Tran , 2006 BCSC 1504 , a decision of Madam Justice MacKenzie, now Associate Chief Justice MacKenzie; and R. v.

Passon , 2011 BCSC 16 , a decision of Madam Justice Humphries. [ 44 ] All three of those cases resulted in acquittals with respect to marihuana grow operations of which a key element of the defence was with respect to whether or not the Crown had established beyond a reasonable doubt the connection of the various accused to grow operations. [ 45 ] I note in R. v. Lee and Pang , my brother Woods noted that there were no keys to the residence in the possession of either Mr. Lee or Mr. Pang which was noted at paragraph 28.

My brother Woods found that at the end of the day that there was a reasonable inference that Mr. Lee and Mr. Pang were mere visitors on all of the evidence before him. He described the evidence in that particular case at paragraph 41 as "too weak to establish constructive possession of the marihuana plants." [ 46 ] In the Tran decision, the sole issue before Madam Justice MacKenzie was whether or not the guilt of Mr. Tran would be the only reasonable inference to be drawn from the proven facts applying R. v. Cooper . The Tran investigation commenced as a result of a 911 emergency domestic call.

Police attended at the residence, gained entry, and found Mr. Tran. [ 47 ] Within the residence, a marihuana grow operation was located of approximately 400 plants in the basement of that residence along with the usual fans, vents, and the like. There was identification relating to Mr. Tran found in the glove box of a car including a gas bill which bore a Surrey address for Mr. Tran. [ 48 ] As noted by Madam Justice MacKenzie at paragraph 33, the Powell and Wu cases were discussed and reconciled. It was also noteworthy and of significance to the ultimate finding of Madam Justice MacKenzie that located on Mr.

Tran or in his effects was an Alberta driver's licence. There was also within the residence a suitcase with the effects for Mr. Tran. She ultimately found that the Crown had not established that he occupied the residence or that he was actively participating in the grow operation and acquitted Mr. Tran. [ 49 ] Similar circumstances were before Madam Justice Humphries in Passon .

I note in this case that the evidence related to an outbuilding and a fingerprint found on a coffee mug located in a workroom area of the outbuilding adjacent to the marihuana grow operation. [ 50 ] Justice Humphries found that fingerprints can remain on objects for long periods of time. She also found: the accused did not own the residence; there was no rental agreement or lease agreement; none of the utilities were in the accused's name; no keys were located; no cultivation materials were connected to Mr.

Passon; there was no electrical bypass; there were no admissions against interest. [ 51 ] At paragraph 77, Madam Justice Humphries made the following finding: However, there is no evidence to suggest that Mr. Passon resided alone on the property, or that he leased the premises. There is no evidence that he could grant or prevent access to the blue building. There is no evidence connecting him directly to the grow operation equipment.

In each of the circumstantial cases referred to above by the Crown ([being] Vu , Twohey , and Bauer ), the evidence connecting the accused to control over the drugs was much more direct than it is here. [ 52 ] An acquittal was registered. Analysis [ 53 ] Section 4(3) of the Criminal Code of Canada reads as follows:

(3) For the purposes of this Act, (

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

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

(

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [54] The elements to each form of possession were discussed by our Court of Appeal in R. v. Webster, 2008 BCCA 458, at paragraph16 [sic] in the following language: The elements of each form of possession are set out in R. v. Pham (2005), (ON CA), 203 C.C.C. (3d) 326 (Ont.C.A.) ...

With respect to deemed possession under s. 4(3)(b), “there must be knowledge, consent and a measure of control on the part ofthe person deemed to be in possession" ... [55] It is established law that the Crown may prove the essential elements of an offence through direct or circumstantial evidence or acombination of both. This was discussed by the Court of Appeal in R. v. Ngo, 2009 BCCA 301, at paragraph 53 in the followinglanguage: The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both.

Wherethe case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is theonly reasonable inference to be drawn from the facts: [see] R. v. Vu ... 2004 2004 BCCA 381 ...

However, the criminal standard of proofis not to be applied to each individual piece of evidence. [56] With respect to an examination of the evidence relating to possession where the circumstantial evidence is a significant feature ofthe Crown case, it is incumbent on a trial court to examine all of the evidence rather than an examination of the evidence in a piecemealanalysis.

This was discussed again by the Court of Appeal in Ngo at paragraph 54 in the following language: In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must notexamine each individual circumstance in isolation.

Instead, the proper approach is to consider whether all the evidence, taken together,establishes the guilt of the accused and is inconsistent with any other rational conclusion ... [57] The approach this court must take towards assessing circumstantial evidence was discussed by Madam Justice Fisher in R. v.Benham, 2008 BCSC 1531, at paragraph 11 as follows: To find an accused guilty where a case is based entirely on circumstantial evidence, it is necessary for the Court to be satisfied beyond areasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

The rule in Hodge’scase, while not an inexorable rule of law [of] Canada, provides a useful formula for applying reasonable doubt where the issue isidentification: the trier of fact must be satisfied not only that the circumstances are consistent with the accused having committed the act,but it must also be satisfied that the facts are inconsistent with any other rational conclusion ... [58] Though Madam Justice Fisher dealt with identification in that case, I would simply substitute "possession" for "identification". [59] It was forcefully argued by defence counsel that there were other rational conclusions for the presence of Ms.

Le beyond beingan occupant of that residence, being that she was a visitor or, in essence, an overnighter visiting her children. Decision [60] In reaching my decision I find as follows in items listed 1 through 15: 1. The only keys which permitted access to the property were the keys which opened the locks of both the deadbolt and the doorhandle lock, but were also keys in which the Nissan Pathfinder could be operated. The house keys and the car keys were all located on asingle ring with another connecting ring. The registered owner at the material time of that Nissan was the accused. 2.

Though I am not saying that the Crown has established beyond a reasonable doubt that the dog is Ms. Le's, it is acircumstance that I take into account that the Chihuahua was in her arms when the police first entered. The greater significance of thedog is this. There was a water bowl and food bowl next to the shoe rack near the back door and adjacent to that was not a small bag ofdog food, but a large bag of dog food. 3. There were food items, utensils, bowls, pots, and pans in the kitchen including food within the refrigerator and freezer whichincluded eggs and the like. There was cereal on top of the fridge.

There were food items located in bowls along with accessories such aschopsticks. 4. It is also significant that there was a shrine in the living room of this residence with fruit at the foot of the shrine. Thepictures would appear to depict that the fruit was robust. Whether it was plastic fruit or real fruit I cannot so find, but the fact it waslocated and appears to be an operative shrine was significant. 5. There was a desktop HP computer CPU along with monitor and the monitor was on. (Also see Item 10 as it applies to thisfinding.) 6. It is also significant that there were three toothbrushes in the bathroom.

Also located in the bathroom were feminine hygieneproducts including Tampax and what appear to be cream for face or hands. 7. I note and accept the evidence of Constable Greenhauth that the accused's Nissan Pathfinder though not in the carport wasjust north of the carport on March 3rd of 2009. 8. That the clothing in the southeast bedroom closet would be described as principally female attire. 9.

Of significance is the fact that the accused first went to put on a pair of jeans with the safety pins in the bathroom and thentook the corduroy slacks when she was told she could not wear the jeans, off the towel rack and put on the corduroy slacks. She also put

on the boots next to the shoe rack in the kitchen and had a white jacket that she put on when she left the residence in the company of thepolice. 10. It is also significant that the HP computer located in the living room had a product code on the exterior of the unit of 762425. That same identification code is noted on an Office Depot receipt found in the purse of the accused with the same product number with apurchase date of March 21, 2009, for a total price including tax of $1,131. 11.

It is also significant that when Constable Chan made first contact with the accused, that the accused appeared to be sleepy,was lightly attired, did not have any footgear on and, in her opinion, appeared to have just woken up. 12. Of significance, as well, that the basement door to the exterior of the rear of the property was barricaded and the only accessother than by breaking down the door would be from the upstairs front door or back door. Again, the only keys associated to the doorlocks were those keys, as noted, on the key ring which also had the Nissan car key. 13.

There was a moderate to strong smell of marihuana upon entry of the police into the residence. 14. An electrical bypass was installed to enhance the grow operation. 15. This residence was actively occupied and was lived in. [61] I have concluded that prima facie this is not a case where there is a transitory association of the accused to the premises, but thatthe only rational conclusion is that she occupied that residence with her two children on April 1, 2009. However, that does not end thematter.

The Crown must still prove the case beyond a reasonable doubt even in the face of a prima facie case. [62] Staff Sergeant Murphy indicated that in the hierarchy of marihuana grow operations that an individual may be engaged in amarihuana grow operation in a variety of roles. In R. v.

Ngo, at paragraph 85, Madam Justice Rowles reviewed circumstances in whichan occupant may be in a position to provide assistance to a grower thus being an active participant. [63] It was the opinion of Staff Sergeant Murphy, which I accept, that the normal presentation of the property was of significance,allowing monitoring capability with some measure of security. [64] It would appear to be the case that an occupier of a residence whose purpose was to establish any of those factors enumerated inNgo at page 27 of paragraph 85, based upon all of the evidence, could be found to be a party to the active participation in a marihuanagrow operation. [65] In relation to knowledge with respect to the marihuana grow operation, there is evidence, which I accept, that the southeastbedroom floor had some vibration going through it on April 1 of 2009.

That is found in the evidence of Constable Greenhauth. [66] I also accept his uncontradicted evidence that the portal to the attic had air venting around the portal with debris around thatportal; that the fireplace in the living room was covered, secured, and affixed with duct tape; bags of soil by-products in the northeastroom; nutrients as observed by that officer and others.

I also accept the observations of Sergeant Korbely of the vents and shrouds in thenortheast bedroom in the closet; of significance, as well, the Mylar partially covering the bottom of the entranceway to the basement ofwhich a bright light is seen in operation. [67] In R. v. Hubble, 2002 BCCA 561, Mr. Justice Hollinrake gave the decision for the panel concerning a marihuana grow operationin which occupation was a principal issue. [68] In upholding the conviction, Mr.

Justice Hollinrake at paragraph 15 agreed in substance with the findings of the trial judge whichin part read as follows: I am further reminded by counsel for Mr. Hubble that acquiescence in the act of another is not an offence. I agree. Unless Mr. Hubblewas deaf and utterly deprived of a sense of smell of which there is absolutely no evidence, he knew there was a grow op in hisbasement. The key to the door accessing the basement from within his house was in a box on his fireplace mantle.

To get to the growroom, it was necessary to enter his house and go through his kitchen to access the stairs to the basement. [69] I note, in particular, that in Hubble, the court found that Hubble was the owner of the residence either by lease or by ownershipwhich is not the case here. It is all of the other surrounding circumstances in this case that I have taken into account in my decision. [70] Mr. Fai emphasized in his able submissions that his client was presumed to be innocent.

Indeed, the presumption of innocencelies at the very heart of the criminal law protecting the fundamental liberty and human dignity of any and every person charged with anoffence; see R. v. Oakes (1986), (SCC), 24 C.C.C. (3d) 321, at paragraph 9. Most recently, my sister Judge Lytwynanalyzed the interaction of reasonable doubt with the presumption of innocence in R. v. Bacon and Bacon, 2010 BCPC 48 ,2010 BCPC 0048, at paragraphs 7 and 8. [71] Guilt must be based on all of the admissible evidence presented in this trial. Ms. Le elected not to testify. As was noted by theSupreme Court of Canada in R. v.

Lepage, (SCC), [1995] 1 S.C.R. 654, at paragraph 29: No adverse inference can be drawn if there is no case to answer. [72] However, where the totality of the evidence against an accused mounts, the failure of the accused to testify may result in anadverse finding.

On this point, Sopinka J. for the majority of the court noted the following: Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent's failure to offer an explanationfor the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to drawsuch an inference in any event.

[ 73 ] The accused's election not to testify was but one feature of this case. The accused's silence is not inculpatory. However, her election not to testify is indicative of the absence of an exculpatory explanation in all of the circumstances before me. [ 74 ] I find on all of the circumstances of this case that the Crown has established proof beyond a reasonable doubt that Ms.

Le occupied the residence and her role resulted in her active participation in the cultivation and possession for the purpose of trafficking of the marihuana grow operation located in the basement and that she therefore had the requisite knowledge, consent, and necessary measure of control for such a finding. I find her guilty of both counts. [REASONS FOR JUDGMENT CONCLUDED]