R. v. Xie Date:, 2013 BCPC 77

Citation: R. v. Xie Date: 20130308 2013 BCPC 0077 File No: 202810-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAO FEN XIE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: M.N. Wiancko Counsel for the Defendant: B.A. McIntosh Place of Hearing: Vancouver , B.C. Date of Hearing: March 8, 2013 Date of Judgment: March 8, 2013

Introduction [ 1 ] THE COURT: The accused, Shao Xie, has been charged with production of cannabis marihuana and possession for the purpose of trafficking in cannabis marihuana with respect to a marihuana grow operation located in a residence at 6537 Portland Street in the City of Burnaby, Province of British Columbia. [ 2 ] The accused was also charged with theft of electricity in relation to the marihuana grow operation, but the Crown has elected not to proceed on that charge.

Issues [ 3 ] The principal issue to be resolved is whether or not, on all of the evidence, the Crown has established beyond a reasonable doubt the guilt of the accused in relation to either or both counts on the information. Background [ 4 ] On May 24, 2011, members of the Burnaby RCMP drug squad conducted a briefing in relation to the possible theft of electricity from a residence, and, thus, the possible presence of a marihuana grow operation in the premises located at 6537 Portland Street. [ 5 ] It was decided that surveillance would be conducted on this residence. This residence was owned by a Ms.

Wei, who lived several doors down from 6537 Portland Street. The hydro subscriber for the Portland Street property was Mr. Kiet Hang. [ 6 ] Sergeant Rintoul established surveillance on the Portland Street property on May 24, 2011, but no suspicious activity took place during the course of his surveillance. [ 7 ] In particular, the accused was not noted to be at or around the Portland Street property, nor was any vehicle associated to her was noted at or around the Portland Street property. [ 8 ] On May 26, 2011, Sergeant Rintoul decided to stop by the Portland Street property on his way to the RCMP detachment.

He arrived at or about 7:00 a.m. He noted a small black compact car parked in front of the residence, and it was his view in direct examination, that this car was associated with the residence, and, thus, with a possible marihuana grow operation that could be contained within that residence. He also noted that the car was wet or had moisture on it.

It was also his view that the car must have been there overnight. [ 9 ] During the course of his surveillance of both the front and the rear of the Portland Street property, Sergeant Rintoul noted that a light was on outside of the front door on the second level, and another light was on at the second level porch at the back of the house, as well. [ 10 ] At 7:41 a.m., Sergeant Rintoul noticed that the front door of the premises opened, and he observed two young Asian children of approximate ages of five and seven exit the residence, followed by an Asian female.

He described the Asian female as having dyed brown hair, black slacks, a brown jacket, a white purse, and a colourful backpack. Both of the children were carrying nylon lunch bags. [ 11 ] From his vantage point and while assisted by binoculars, Sergeant Rintoul noted that the Asian female closed the door and appeared to lock it with a key or a set of keys. [ 12 ] Sergeant Rintoul observed that the Asian female and the two children got into the black compact car and left the area.

Sergeant Rintoul followed this vehicle and, for a brief time, lost contact with the vehicle, but he regained visual contact and observed this same car parked in a carport at 3050 First Avenue in Vancouver.

The investigation later determined that the First Avenue property was the residence for the accused. [ 13 ] At approximately 8:40 a.m., Sergeant Rintoul saw the Asian female exit the residence with the two children and walk with them to an elementary school located nearby. [ 14 ] A short time later, Sergeant Rintoul saw the same Asian female walking back to the First Avenue residence in the company of another Asian female.

Sergeant Rintoul saw the Asian female go back into the First Avenue property and, after a short period of time, exited the property, got into her car, and departed from the residence. [ 15 ] She drove to the front of the elementary school, and he observed that she went into the school with another lunch bag in hand. The Asian female then returned to her car and drove to a residence situated at 4806 Canada Way in Burnaby. [ 16 ] The Asian female pulled her vehicle into the driveway of the residence and went inside that residence. Several other vehicles were also parked in the same driveway.

Sergeant Rintoul conducted surveillance of the Canada Way property for several hours, until at or about 1:06 p.m., the Asian female left the residence and proceeded in a north-west line of travel towards the Burnaby Sheraton Casino.

Obviously this would be in a direction opposite of the location of the Portland Street residence. [ 17 ] Constables Lee and Veller were assisting Sergeant Rintoul, and they were instructed to pull over the vehicle and arrest the driver. [ 18 ] Just prior to the arrest of the driver of the compact vehicle, Sergeant Rintoul had received confirmation that there was a warrant for entry into the Portland Street property and that there was a marihuana grow operation located in that residence.

As such, Sergeant Rintoul was of the view that he had reasonable and probable grounds to have the Asian female arrested for possession for the purpose of trafficking and/or production of cannabis marihuana.

[ 19 ] Constables Lee and Veller pulled over the compact vehicle being driven by the Asian female. She was later identified as the accused, Shao Xie. [ 20 ] A warrant was indeed executed at the Portland Street property at or about 10:04 a.m. Contained in the basement of that residence was a relatively sophisticated three-stage marihuana grow operation. Various police witnesses testified that upon entry through the front door, there was a strong odour of growing marihuana. [ 21 ] There was a door that led into the basement of the residence.

The door was equipped with a lock on the door handle and a small safety chain. The locking mechanism, if deployed, would deny entry from the basement to the main floor, unless a key was utilized. Likewise, the safety chain was located at the main floor side and not at the level the basement side of that door; hence, if deployed it would restrict the door from fully opening. [ 22 ] Police witnesses also confirmed that when the door to the basement was opened, the marihuana odour was overwhelming. The basement was dedicated to the growing of marihuana.

On one of the window ledges, there were two plush children's toys that were curtained off, so that one could see the toys from the exterior, but not what was behind the curtains. [ 23 ] The upstairs had a kitchen containing food items, along with dishes in the dish-drying rack. There was food in the fridge, including milk. There were also sippy cups located in the kitchen area, along with children's cereal boxes. In the living room there was a couch, a children's desk, a computer, an easel with crayons, and children's toys.

There were also located two readers, in Chinese, which would be consistent with learning materials for young Chinese children. [ 24 ] In the bathroom there were various tubes of toothpaste, along with at least nine toothbrushes. The toothbrushes would be for both children and adults. Feminine hygiene products were also located in the bathroom. What appears to be female clothing was noted to be hanging on the door of the bathroom, though the size of the clothing is unknown. [ 25 ] There were two bedrooms located in this residence.

One bedroom would be best described as a storage room, and some of the items contained in that room were consistent with the basement marihuana grow operation. Vents from the basement marihuana grow operation, along with a shroud, were located in the closet of this bedroom. There was also a box which had once contained a plant sprayer located in this bedroom. A plant sprayer was located in the basement of the residence. [ 26 ] In the second bedroom, there was a bed, along with sheets and blankets. There was a clothes-drying rack with some female garments located on the top.

Some children's toys and a hamper were also located in that room. [ 27 ] At the back of the house was a detached garage. There was no evidence presented at trial as to whether or not this garage was a functioning garage, or if there was anything of interest to the police contained within that garage. [ 28 ] When the accused was arrested, a set of keys was seized from her. One of the keys was on a separate keychain ring that was looped through a second keychain ring, which contained several keys, along with a Save-On-Foods discount account swipe fob.

There was an account number noted on that fob. [ 29 ] Police investigators used the keys at the Portland Street property, and the one single key on the separate keychain ring opened the top level front and back doors of the Portland Street property. In the case of the front door, that included the deadbolt and the door handle. [ 30 ] It does not appear that this key or any keys were used by the police to determine whether they would open the exterior basement door or the door leading from the basement to the kitchen. [ 31 ] Mail was located in the children's desk, none of which was addressed to the accused.

No drug-related paraphernalia, including clippings or debris, were located on the accused or inside of her vehicle. It is unknown if the children she was observed to be with were her own children or the children of somebody else. [ 32 ] Some items located at the Portland Street property were submitted for fingerprint analysis. No fingerprints came back identifiable to the accused. [ 33 ] Constable Chan was part of the entry team.

One of her observations was of a pair of what appeared to her to be male underwear hanging from the wall in the staircase leading down into the basement. [ 34 ] Corporal Akin was also part of the entry team. He testified that he conducted the knock-and-announce verbal broadcast at the front door. After no response to repeated knock-and-announce verbal broadcasts, a battering ram was utilized to gain entry.

He testified that the door opened rather easily, and, even though a battering ram was used, he did not recall any damage to the door or doorframe. [ 35 ] Expert evidence called by the Crown established that this marihuana grow operation could yield up to four harvests per year, and while values would vary each harvest would be described as substantial and potentially valued at $500,000 or more, depending on how it would be packaged.

Position of the Parties [ 36 ] Crown counsel submits that the evidence establishes beyond a reasonable doubt that the accused had the requisite knowledge, consent, and measure of control to establish possession in relation to the marihuana located in the Portland Street property. [ 37 ] In addition, Crown counsel submits that the accused was either a principal or a party to the production of marihuana and that the accused was able to exercise control over the marihuana grow operation. Crown counsel concedes that much of the evidence is circumstantial.

However, she submits that the only reasonable and rational inference that can be drawn from the evidence is that the accused is a principal or a party to both the production and to the possession for the purpose of trafficking of the marihuana, and that

there could be no other rational inference on the established facts. [ 38 ] Crown counsel submits that the court must consider all of the evidence to determine whether that evidence, in its totality, establishes the guilt of the accused and that it is inconsistent with any other rational conclusion. Crown counsel notes that the accused had a key to the Portland Street property, and that the key was attached to a key ring and then attached to the car key ring.

She submits that the key alone may be sufficient to establish beyond a reasonable doubt knowledge and control of the marihuana grow operation. [ 39 ] Crown counsel submits that the pervasive smell of marihuana in the upstairs portion of the property would also be a central indication of knowledge and control.

Crown counsel further submits that access to the marihuana grow operation was not impeded from the upstairs portion of the residence into the basement. [ 40 ] In thorough written submissions, Crown counsel reviewed several circumstantial evidence cases involving production and possession for the purpose of trafficking.

In her usual candour, she conceded that each case is driven by its facts, but suggested that the facts of those cases may be of use to the court. [ 41 ] Crown counsel identified 26 factors which, in her submission, could only lead to one rational conclusion, and that conclusion was that the accused was in constructive possession of the grow operation and that that possession was for the purpose of trafficking.

Those factors include, but are not limited to: - rain or moisture located on the accused's car when similar rain or moisture was noted on other cars by Sergeant Rintoul on May 26, 2011, at the Portland Street property; - the observation of the accused leaving the house at 7:41 with the two children, who were carrying lunch bags, and the accused apparently locking the door of the residence; - the observations made by Sergeant Rintoul of the accused driving to her actual residence at 3050 First Avenue in Vancouver, and then walking to the elementary school with the two children; - the fact that the key to the Portland Street property was in her possession at the time that she was arrested, and that there were cleaning supplies in the trunk of her car, along with a calendar indicating various addresses which did not include the Portland Street property, all of which suggest that her occupation was that of a cleaner and do not explain away the presence of the one key that accessed the Portland Street property; - it was noted that no key was required to proceed downstairs at the Portland Street property; - the strong to overwhelming odour within the residence; - the venting to the second bedroom on the main floor; - children's toys, including readers, being located in the residence; - women's clothing; - a lamp with a timer in the living room; - the toothbrushes and female hygienic products located in the bathroom; and - the fact that there was expert evidence, elicited through Constable Fisher, to establish that only a trusted individual would have access to keys to a marihuana grow operation. [ 42 ] Defence counsel agrees that although much of the evidence is circumstantial, the circumstantial evidence must be considered cumulatively.

It is urged on this court that there are simply too many gaps and unanswered questions to establish the guilt of the accused beyond a reasonable doubt. It is submitted that a verdict of guilt must be based on inferences drawn from the proven facts and not conjecture by the court. [ 43 ] Like Crown counsel, defence counsel provided the court with thorough written submissions with authorities in support of the defence position. [ 44 ] Defence counsel notes that the accused was neither the owner of the Portland Street property, nor the hydro subscriber for it.

In addition, defence counsel notes that Sergeant Rintoul only noted the accused's car in front of the residence when he arrived at 7:00 a.m. on May 26, 2011, and while the car may have had rain or moisture on it, suggesting the car was there overnight, defence counsel notes that Sergeant Rintoul testified in cross-examination that he only "assumed" that this car was there overnight, as he had no independent recollection of when the rain started or stopped in this area of Burnaby at that time. [ 45 ] It is submitted that the only activity observed by Sergeant Rintoul in the 45 minutes that he was surveilling that residence occurred when the Asian left the residence with the two children. [ 46 ] On the point of identification, defence counsel notes that at no time in his evidence did Sergeant Rintoul make any in-court identification of the accused.

This was of import, in the submissions of defence counsel, as there were contradictions in the evidence in relation to the hair colour of the accused. [ 47 ] While conceding that the one key on the ring of keys located on the accused was in her possession, there is no evidence as to how long the accused had this key in her possession or who gave her the key. [ 48 ] Defence counsel notes that, while the smell of marihuana was strong to overwhelming, depending on an individual's location in

the Portland Street property, no police officers detected any odour of marihuana emanating from the accused or her clothing. [ 49 ] Defence counsel notes that there must have been several people associated with this property, given the number of toothbrushes found in the bathroom. While female clothing was located within the residence, there was nothing to link that clothing to the accused or, for that matter, to anyone else. [ 50 ] It was also noted that when the accused was arrested, she was driving from the Canada Way residence in a direction northwest of the Portland Street property.

The instructions to the cover team were that they were to arrest the accused if she went anywhere else but the Portland Street property.

Clearly had the accused returned to the Portland Street property, the case for the Crown would have been strengthened. [ 51 ] Defence counsel also notes that despite the surveillance by various police officers, the accused was seen at the Portland Street property on only one occasion. [ 52 ] Defence counsel notes that when his client was arrested, that Constable Veller did find any marihuana or marihuana-related paraphernalia in the vehicle. [ 53 ] A calendar consistent with a cleaning

schedule was seized, but no reference was made on that calendar to the Portland Street property. [ 54 ] Defence counsel also submits that there was no inquiry made as to who held the Save-On-Foods account, the fob for which was attached to one of the two key rings.

Defence counsel also notes that there was static surveillance on May 24th and May 25th of 2011, and that there was no suspicious activity noted on either day at the Portland Street property involving any person, including the accused. [ 55 ] Defence counsel further submits that, while there was some fingerprint analysis, forensically no fingerprints were identified to the accused.

In addition, defence counsel notes that it was Constable Chan who observed what appeared to be a pair of male underwear hanging from the wall of the staircase leading to the basement. [ 56 ] While mail was located in the residence, that mail related to two individuals identified as Xiao Shen and Jin Tang. [ 57 ] Defence counsel also submitted that the evidence of Sergeant Rintoul is not reliable in relation to his observation of the accused locking the door of the Portland Street property.

If the deadbolt of that property had been deployed, then most certainly, it is argued, one would expect damage to the door or the doorframe as a battering ram was utilized. [ 58 ] In relation to the production allegation, defence counsel submits that the evidence falls short of proof beyond a reasonable doubt that the accused was actively involved as a principal or party.

Indeed, it is submitted that there is no evidence that the accused ever went into the basement of the Portland Street property on May 26, 2011, and that there is even less evidence that the accused tended to the marihuana plants or aided and abetted the person or persons involved as principals in the production of marihuana. [ 59 ] In relation to the possession for the purpose of trafficking allegation, it is submitted that there is no evidence that the accused was in possession of marihuana and that she did not knowingly have it in a place for the benefit of herself or any other person. [ 60 ] As to the issue of the strong to overwhelming odour of marihuana at the Portland Street property, either upstairs or downstairs, any inferences that can be drawn would depend in part, on how long the accused was in the Portland Street property, and her knowledge and experience with respect to the smells and items associated with the production and possession of marihuana. [ 61 ] The possession of one key to the Portland Street property does not, it is submitted, equate to the control of that residence, especially when the evidence falls short of establishing that the accused either lived in or otherwise occupied that residence.

Indeed, it is submitted that there is no evidence to establish, in any convincing manner, whether the two children seen with the accused were in fact her children or children that were being picked up by her to take to school for a friend. [ 62 ] It was further submitted by defence counsel that it would be inappropriate for this court to engage in speculation. [ 63 ] However, defence counsel takes the position that the assertion by Crown counsel that the only capable inference is that the accused knew of the marihuana grow operation and had control of it is simply unsupportable.

On this point, defence counsel relied on the decision of Judge Woods of this court in R. v. Lee , 2011 BCPC 21 , at paragraph 32 . [ 64 ] Like Crown counsel, defence counsel also made reference to other comparable cases, and then closed with the submission that the evidence in its totality was simply insufficient to tie the accused to the premises on Portland Street, and therefore she ought to be acquitted. Analysis [ 65 ] In R. v.

Le , 2011 BCPC 413 , at paragraphs 53 through 58, I analyzed the approach that must be taken in cases involving a marihuana grow operation concurrent with possession for the purpose of trafficking.

I have reviewed my analysis from that decision and have instructed myself that a reasonable doubt cannot be grounded on speculation or fanciful possibilities that do not arise from or fit with the proven facts. [ 66 ] The evidence in this case clearly establishes beyond any reasonable doubt that an active and robust marihuana grow operation was located in the basement of the Portland Street property in Burnaby, British Columbia, on May 26, 2011. [ 67 ] I also find that this marihuana grow operation could not possibly have been for personal use, but was for the purpose of trafficking. [ 68 ] I also find that the Asian female leaving the Portland Street property at 7:41 a.m. on May 26, 2011, was the same Asian female

who was arrested by the Sheraton Casino by Constable Veller. I am satisfied beyond a reasonable doubt that female was the accused. [ 69 ] I also find that the accused was in possession of a set of keys, of which one key opened the top exterior doors of the Portland Street property.

I cannot find that the same key or any other keys in the possession of the accused at the time of her arrest opened the basement exterior door or the door leading from the basement to the main level, as apparently no effort was made to test any keys seized from the accused in those two locks. [ 70 ] While it was the car of the accused that was parked in front of the Portland Street property the morning of May 26, 2011, I do not find that this car was in that location overnight. It is possible that it was there overnight.

However, Sergeant Rintoul only observed this vehicle on one occasion, being the morning of May 26, 2011, at 7:00 a.m. While there was rain or moisture located on this vehicle and on other vehicles located in the area, his evidence falls short of establishing when the rain either commenced or ceased at 7:00 a.m. at the Portland Street property.

In addition, it would have been helpful to have Sergeant Rintoul check the hood of the car to determine if it was hot, cold, or warm. [ 71 ] Likewise, Sergeant Rintoul did not see the same car on May 24, 2011, nor did any other RCMP surveillance link this car to the Portland Street property, except on the one occasion. [ 72 ] I find that the evidence does establish that it was the accused who left the Portland Street property at 7:41 with the two young Asian children of approximate ages of five to seven years carrying lunch bags. [ 73 ] I accept the evidence of Sergeant Rintoul that the accused then drove to a residence on First Avenue, and thereafter walked the two children to a nearby elementary school.

I also accept the evidence of Sergeant Rintoul that the accused then returned to her residence and left shortly thereafter in her car, stopping first at the elementary school to deliver another lunch bag to someone in the school, before driving off to the Canada Way property. [ 74 ] I also find that the accused is seen only once at the Portland Street property, where she was observed leaving with the two Asian children.

As the period of surveillance by Sergeant Rintoul was limited to 41 minutes, I am unable to establish how long the accused was at the Portland Avenue property before she was observed leaving that property at 7:41 a.m. Clearly, and at the very least, the accused was at that property prior to the arrival of Sergeant Rintoul. [ 75 ] Likewise, there is no evidence before me to identify who the two children were or even if they were the children of the accused.

There is certainly an inference that the children would be her children, but there would also be a rational inference that she was a temporary caregiver for the children, picking them up to take to school for a friend or relative. [ 76 ] I also accept the evidence of the arresting officers that they did not observe any odour or scent on the accused or on her clothing, which would be consistent with the occupation of a residence containing a marihuana grow operation.

I do accept the evidence of the expert, Constable Fisher, that marihuana odour will attach itself to clothing and to hair if an individual was to expose himself or herself over several hours in an area where the marihuana odour or smell would be described as strong to overwhelming. [ 77 ] I also find that the accused is neither the owner of nor the hydro subscriber for the Portland Street property, and that mail located on that property was not in her name. [ 78 ] I also find that the upstairs portion of the Portland Street property was occupied on May 26, 2011.

In relation to the bathroom, I find that there were at least nine toothbrushes, some of which were for children, and some may have been for adults. There was also toothpaste for children and what appears to be a tube of toothpaste that an adult would use. Some cosmetics were also located in the bathroom, along with feminine hygiene products. [ 79 ] In addition, evidence in relation to the kitchen would also establish occupation. The presence of the food products, as indicated in the background, would establish that finding.

The presence of the toys, an easel, and other items consistent with young children would also establish occupation by young children. [ 80 ] I also find that this occupation would not be solely confined to women and young children. I note what appeared to be evidence of the presence of male underwear found hanging on the wall leading into the basement. [ 81 ] I find on all of the evidence before me that on May 26, 2011, any occupation of the residence by the accused was at best transitory and of a brief duration.

On the proven facts, it would be dangerous to find otherwise. [ 82 ] I further find that when the accused was arrested there was nothing on her person or within the motor vehicle that is connected to the marihuana grow operation. The absence of this indicia was considered in part by Madam Justice McKenzie, as she then was, in R. v. Tran , 2006 BCSC 1504 , at paragraph 51 , in relation to odour. [ 83 ] I further find that it would be unlikely that the accused locked the deadbolt on the front door when she left the Portland Street property.

Were that the case, one would expect significant damage to the doorframe when the battering ram that was used for entry into the residence was utilized.

When one views the photographs of that deadbolt, it is substantial when deployed. [ 84 ] While I accept the evidence of the expert that only a trusted individual would be given a key to a residence containing a marihuana grow operation, it would also be a reasonable inference to find that only a trusted individual would be given a key to a residence where his or her children may be residing. [ 85 ] The circumstances in this case are much different from those in R. v. Le , (supra).

In the Le decision, the accused was associated to a marihuana grow operation contained in a private residence on more than one occasion. I found in that decision that the accused occupied the residence. I was fortified in that finding by the presence of her dog, the fact that she put on clothing located within the residence, as well, and significantly to the case, the presence of the computer purchase receipt located in Ms. Le's purse. The time noted on that receipt straddled the times when she was associated to that residence. Her presence was not transitory.

[86] I found in the Le decision that the Crown had established a prima facie case, and the accused's silence was not indicative of anexculpatory explanation. [87] I do not find that the Crown in the case at bar has established a prima facie case on all of the evidence that I have consideredbefore me, and, therefore, the silence of the accused is neutral. [88] I further find that there is no evidence before me that this accused is familiar with or aware of the nature of freshly grownmarihuana odour.

Even if she was aware of that odour, the fact that the marihuana grow operation was completely contained in thebasement would not necessarily establish beyond a reasonable doubt the requisite knowledge. [89] I also find it to be a significant factor that the accused is only observed on one occasion at the Portland Street property.

Manyother individuals appear to be associated to this property, and not only children, but their association remains unknown, as it appearsfrom all of the evidence that no further investigation apparently took place. [90] There is also no evidence before me that the accused directly tended to the marihuana grow operation or that she instructedanyone to grow the marihuana for her. If indeed she had a role, I would find her role to be that of a minder or caretaker for the purposeof establishing normality at the residence.

Again, the fact that she has only been observed on one occasion calls into doubt such a findingas proof beyond a reasonable doubt. [91] I am highly suspicious of the activities of the accused on May 26, 2011, but I am also mindful of the required high standard ofproof in criminal cases. I have instructed myself on the rulings of the Supreme Court of Canada in R. v. Lifchus, (SCC), [1997] 3 SCR 320, and R. v.

Starr, 2000 SCC 40 , [2000] 2 SCR 144. [92] I find, on the totality of the evidence before me, that it would be dangerous to convict the accused of either production orpossession for the purpose of trafficking without more evidence linking her either directly or circumstantially to both the Portland Streetproperty and the dedicated grow operation contained in the basement. [93] Could you stand, please. [94] For the above reasons I find you not guilty of both offences. (REASONS CONCLUDED)