R. v. Mathews Date:, 2013 BCPC 249

Citation: R. v. Mathews Date: 20130509 2013 BCPC 0249 File No: 217244-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALAN MATHEWS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: T. Ferreira Counsel for the Defendant: J. Currie Place of Hearing: Vancouver , B.C. Date of Hearing: May 9, 2013 Date of Judgment: May 9, 2013

[ 1 ] THE COURT: This matter was set for decision this morning and I am prepared to give oral reasons. Mr. Mathews is charged with producing marihuana on or about February 10, 2012, contrary to s. 7(1) of the Controlled Drugs and Substances Act . He is also charged with possessing marihuana on February 10, 2012 in an amount exceeding three kilograms for the purpose of trafficking. [ 2 ] First, I will review the background briefly. On February 10, 2012, an RCMP officer working in Burnaby responded to a complaint about a suspicious occurrence at 7798 13th Avenue, Burnaby, British Columbia.

The nature of the complaint was that three unknown males had been seen leaving the basement of the home carrying plants and leaving in a vehicle. [ 3 ] Corporal Sunder went to 7798 13th Avenue to investigate. The details of what he found will be reviewed shortly. However, after concluding an investigation, the police were of the opinion there may have been a "grow rip" of marihuana plants found growing in pots in the basement of the house. [ 4 ] Secondly, I will review the admissions.

For the purposes of the trial, the following facts were admitted by consent: 1. the police entered and searched the home at 8:14 p.m. under the authority of a warrant; 2. Constable Paisley took photographs at various locations both inside and outside the house; a total of 36 photographs were tendered as exhibits. It is admitted that each photograph accurately depicts the scene; 3. the identify of Mr. Mathews is admitted; 4. Mr.

Mathews is not the registered owner of the house; 5. the police located and/or seized numerous articles and documents from the house; all of the items were recorded on an exhibit flowchart; the exhibit flowchart was admitted as an exhibit at trial and the information contained in the exhibit flowchart as to description, who found the item, and the location of the seizure was also admitted; 6. a diagram of the house prepared by Constable Elash was admitted as an exhibit at trial; 7. Mr.

Mathews provided a statement to the police which was video and audiotaped; the video recording of the statement was admitted as an exhibit at trial and played in court; a copy of the transcript was also provided as an aid for the court; 8. it is admitted that the statement made by Mr.

Mathews to the police was made voluntarily; 9. the continuity of the house is not in issue; 10. the continuity of the exhibits is not in issue; 11. it is admitted that the police seized marihuana from the residence; and 12. last but not least, during the trial the defence advised that if possession of marihuana was found to have been proven, the element of "for the purpose of trafficking" is admitted. [ 5 ] Third, I will review briefly the evidence of Corporal Sunder. Corporal Sunder testified that when he arrived at the house there was no person on the property visible from the street.

He walked down the driveway towards the south of the residence and walked to the rear of the residence. As he walked down the driveway, he noticed a strong odour of growing marihuana. [ 6 ] At the back of the residence, he saw that a ground-level door at the rear was open. It appeared to have been forced open. Marihuana plants were strewn on the ground adjacent to the open door. Corporal Sunder entered the basement and noted that it appeared to be completely devoted to growing marihuana. [ 7 ] He walked up an interior staircase to a door at the top of the staircase. The door was closed and locked with a deadbolt.

He opened that door from the basement side. As soon as he opened the door, he saw a man walking past. The door at the top of the stairs that he opened led into the kitchen. Corporal Sunder informed the man, whose name was Patrick Davis, that he was under arrest. Corporal Sunder said while he was in the kitchen, he could smell the odour of fresh growing marihuana. [ 8 ] Corporal Sunder then responded to a call from a fellow officer and went outside the house. There, he dealt with Mr. Mathews. After a conversation with Mr.

Mathews, he informed him that he was under arrest for production of a controlled substance. [ 9 ] In cross-examination, Corporal Sunder agreed he did not examine the entire basement, but only the east side of it. He noted that the internal stairway was the only way to get upstairs from the basement. He said he left the internal door open when he went upstairs. He agreed the smell of marihuana that he later smelled could have come from the downstairs area to the upstairs area when he left the door open. [ 10 ] Fourth, I now turn to the evidence of Constable Paisley.

Constable Paisley went to the house later that evening at approximately 7:20 p.m. He searched the premises pursuant to a search warrant and took photographs. He said the house was located in a largely residential neighbourhood. [ 11 ] The upper floor of the house consisted of a living room facing the front of the house, a kitchen and bathroom facing the rear of the house, and three bedrooms down one side of the house. Two of the bedrooms, one in the front and another in the back, were set up as actual bedrooms with beds and other furniture.

The third bedroom that was between the two other bedrooms did not have a bed in it. Constable Paisley said the general impression he had of the upstairs of the house was that someone was living there. He gave his reasons for reaching that conclusion. [ 12 ] He described the basement of the house as being in complete disarray. There were pots thrown every which way. It was

impossible to count the plants that were also observed in the basement unless they were grouped together so that is what the officers did. Constable Paisley said he attended grow-ops before and it was not normal to find a grow-op in such disarray. He said the condition of the basement, as well as the fact the basement door appeared to have been kicked in or that some other force had been used, led him to conclude there had been a grow rip. [ 13 ] During his testimony, Constable Paisley reviewed many of the pictures entered as exhibits and explained what they depicted.

I do not propose to review that evidence in detail in these reasons. However, I have taken it into account. [ 14 ] In cross-examination, Constable Paisley explained that the rooms depicted in the pictures and described in a handmade diagram as Room 1, Room 2 and Room 3 in the basement were in a fairly open area. There was only a blanket for a curtain between Room 1 and Room 2. The room labelled Room 3 had no plants but had some furniture. The room labelled Room 4 was the room that contained most of the plants. He also described a stack which he believed was used to ventilate the room.

It was found on the outside of the house, but he believed it was connected to Room 4. [ 15 ] In cross-examination, Constable Paisley agreed there was no marihuana found in the upstairs of the house. He did not find any marihuana growing equipment in the upstairs of the house. He agreed that the upstairs could be accessed without going through the basement. He said one thing that was evident when he went upstairs was the smell of plant-based marihuana. He also noted a strong odour of marihuana outside the residence on the west side. He said he picked up the smell as he walked down the driveway.

He could not recall whether the door between the basement and the upstairs was open when he attended the house. [ 16 ] In cross-examination, Constable Paisley was asked about the stack depicted in photographs 33 and 34. He said he made a mental note that the stack looked relatively new compared to the state of the rest of the house. He did not know how old the house was, but estimated it was at least more than 30 to 35 years old. He said the stack was much newer than the rest of the house. He was asked whether he could categorically state that the stack was venting the room in the basement labelled at Room 4.

He replied he could not. [ 17 ] Fifth, I will describe what was found in the basement. The police found 30 marihuana plants on the ground by the rear ground- floor door. This was outside the house. Those plants were approximately one-foot to one-and-a-half-feet high. [ 18 ] In a room in the basement labelled as Room 1, the police found one box of marihuana leaves or shake, two growing lights, one shroud, two ballasts, one fan, and one filter. [ 19 ] In another room in the basement labelled as Room 2, the police found 66 marihuana plants.

These plants were approximately one-foot to one-and-a-quarter-feet in height. The police also found one grow light, one shroud, on ballast, one filter. Two timers were also found in a hallway in the basement. [ 20 ] In another room in the basement labelled Room 4, the police found 52 marihuana plants. These plants were approximately one- foot to two-feet in height. Additionally, in that room, the police found two grow lights, one shroud, three ballasts, two filters, one carbon generator, one fan, and three timers.

Photographs of the basement show that, in general, the basement area was unfurnished. [ 21 ] The basement floor, except for the one room that had furniture in it, is depicted as unfinished concrete. This was confirmed by Mr. Mathews' testimony. Some of the pictures show unfinished portions of the foundation of the house. One picture shows the unfinished foundation and the wall above it which is without insulation. [ 22 ] Another picture shows a white, apparently plastic, material on the walls. Other walls seem to be covered with a silver material.

Some photographs show silver flexible ducting and heavy-looking plastic material. Several photographs depict long tubular and/or globe-shaped lights hanging from wires over the plants. Some photographs show a white material spread over the floor with some kind of planting medium or soil strewn over the top. [ 23 ] Sixth, I now turn to the expert report. The curriculum vitae of Corporal Bolt and his expert report were entered as exhibits by consent.

Corporal Bolt was asked to provide an opinion as to whether the circumstances surrounding the possession of substances found at the house was for the purpose of production and possession for the purpose of trafficking. [ 24 ] A

summary of his expert report indicates the following: 1. His opinion was that this marihuana grow operation compared to others he had attended and investigated would fall in the low/medium level of sophistication. 2. An average marihuana plant between the height of 12 inches to 36 inches can conservatively produce one to three ounces of marihuana bud per plant. The price of marihuana has remained constant in the Greater Vancouver area at about $1,500 to $2,000 per pound. An ounce of marihuana can be purchased for $200 and a gram of marihuana for $10. 3.

Corporal Bolt estimated the projected yield from one harvest of the plants (which he said were 165 plants) found at the house would be approximately 20 pounds of marihuana. If sold at the pound level, this would result in earnings of $30,000 to $40,000 for the producer. If sold at the ounce level, this would result in approximately $66,000 for the producer. 4. Corporal Bolt noted that, in general, producing marihuana indoors requires modifications to the growing environment which include light, air, water, and nutrients, growing medium, and heat.

With respect to the residence at issue in this case, he noted this marihuana grow operation had six lights with one homemade shroud and a few shroud assemblies present. 5. He also noted this marihuana grow operation had a very basic system of ductwork to keep the air circulating through the operation. It was clear in his report that these observations were made by looking at the photographs that were given to him. There was no indication that he himself had attended the premises. This marihuana grow operation had only one carbon dioxide generator. 6.

The grow operation utilized potting soil to grow the marihuana plants. He noted from the photographs that this operation had a

sink in the basement with two garbage pails filled with water and nutrients. He noted that a number of liquid plant nutrients were depicted in one of the photographs. 7. Corporal Bolt concluded the marihuana in the house was for the purpose of possession for the purpose of trafficking and for the purpose of production of a controlled substance. [ 25 ] Seventh, I now turn to Mr. Mathews' evidence. Mr. Mathews is 54 years old. He has a Grade 12 education. He has been receiving disability benefits for approximately four and a half to five years because of various medical conditions.

Prior to that, he worked for approximately 12 years with a moving and storage company where he earned a good salary. However, because of his medical condition, he could not continue in that work. Before working for the moving company, he had worked in construction as well as a shipper-receiver for several grocery store companies. [ 26 ] Mr. Mathews has lived at 7798 13th Avenue in Burnaby since 1997. He rents the entire house. Over the years, he has had various paying roommates who have shared the house with him. Sometime in the fall of 2011, he ran into Patrick Davis who had once been a roommate.

Arrangements were made for Mr. Davis to move in and to take one of the bedrooms. Mr. Davis moved in on October 1st, 2011. [ 27 ] At the same time, Mr. Mathews also acquired another roommate whose name was Greg Wilson. Mr. Mathews said he had known Mr. Wilson when he first moved to Vancouver and since had met him approximately half a dozen times. Mr. Mathews said he bumped into Mr. Wilson at Metrotown. [ 28 ] During his discussion with Mr. Wilson, he learned that Mr. Wilson needed a place to store some stuff. Mr. Mathews told Mr. Wilson he had a basement. Mr.

Wilson asked whether he could also stay there for a couple of days a week. Mr. Wilson told Mr. Mathews he had a girlfriend so he would be staying with her, but he also wanted to use the room in the basement. Mr. Mathews explained the room in the basement was a bit of dungeon, but that it was all right with him if Mr. Wilson stayed there. [ 29 ] Mr. Wilson also moved in on or about October 1st, 2011. The arrangement was that Mr. Wilson would pay $300 rent for the basement. Mr. Davis paid $700 for the bedroom and the use of the upstairs. Mr.

Mathews made up the rest of the rent, $350, plus paid all of the bills for the house which were approximately $275. Both Mr. Wilson and Mr. Davis paid Mr. Mathews in cash. [ 30 ] Mr. Mathews said he and the two roommates did not see one another much. He usually saw Mr. Wilson on Friday evenings. Mr. Davis was working nightshift and also working all the hours he could get. Mr. Mathews said when Mr. Wilson showed up, it was usually at night and he would simply crash. [ 31 ] Mr. Mathews said he himself was usually gone on the weekend to visit friends who lived in Pitt Meadows. Usually, he took the bus there.

He went over often enough that he made an arrangement with Mr. Wilson to feed his pet cats while he was away. He told Mr. Wilson that he could use his room to watch TV upstairs. [ 32 ] Mr. Wilson had keys to the house which consisted of a key to the front door of the upstairs of the house as well as a key to the door that led from the kitchen down to the basement. Mr. Mathews said he did not give Mr. Wilson a key to the rear ground-level door.

He said he just did not think about that and there was no need to do so. [ 33 ] The door that led from the kitchen to the downstairs needed to be locked with a key from the kitchen side but could be opened by a knob on the back of the lock from the basement side. Mr. Mathews said he had a spare key for the lock to that inside door to the basement which he kept above the microwave where he also kept the cat food. He told Mr. Wilson where he kept the spare key. [ 34 ] On Friday, February 3rd, 2012, Mr. Mathews said he was going to feed the cats before he left for the weekend.

When he grabbed the cat food that was kept above the microwave oven, he noted the spare key for the inside door that provided access to the basement was gone. He found that very strange. Accordingly, he got his own spare key for that door, opened the door, and went downstairs. [ 35 ] He said he was in absolute shock at what he saw. The whole back room was lit up. There was plastic and there were marihuana plants. In particular, he noted there were marihuana plants on the floor in the room that the police later labelled as Room 4. Mr. Mathews said he had seen marihuana plants on the news.

He was not stupid, he knew what they were when he saw them. Mr. Mathews said he was very angry and frustrated. It was his opinion that Mr. Davis, whom he had known for years, would have nothing to do with that kind of thing. [ 36 ] Mr. Mathews returned upstairs to consider what he should do. Later he went back down to the basement. While he was there, he heard someone coming down the stairs. That person was Mr. Wilson. Mr. Wilson appeared concerned as to what Mr. Mathews was doing in the basement. As well, Mr. Mathews himself got very upset with Mr. Wilson. [ 37 ] Mr.

Mathews said he was mad and he pulled plastic sheeting that was hanging from the wall and kicked some of the plants. He told Mr. Wilson he had a week to get out or Mr. Wilson would have problems. Mr. Wilson told Mr. Mathews that he hoped he was not going to call the police. [ 38 ] Mr. Mathews told him to pick a day to get everything out of the basement. He gave Mr. Wilson a week because he did not want to be confrontational with him. Mr. Mathews suggested Friday was a good day. He did not know why he suggested Friday. He knew that every time Mr. Wilson had showed up to the house before, he never had a vehicle.

So not only did he not want to be confrontational with him, he also wanted to be fair. [ 39 ] Even so, Mr. Wilson was quite mad at him. Mr. Mathews took back the keys he had given Mr. Wilson, that is the front door key and the key to the inside door that led to the basement. Mr. Mathews went upstairs because he did not want to get into a fight with Mr. Wilson. Mr. Wilson remained downstairs for about 20 minutes and then went upstairs and left.

[ 40 ] Mr. Mathews said he had not ever noticed the smell of marihuana in the house. He said if someone smokes marihuana, he knows that smell. He himself, on his doctor's advice, had smoked marihuana four or five times a month in 2010 for medicinal reasons. Therefore, he recognized the smell of marihuana when it was being smoked. He said he did not know the difference in smell between smoked marihuana and fresh marihuana. Mr. Mathews said, while he was in the house, he could not smell a thing. He never smelled marihuana upstairs. [ 41 ] Mr. Mathews decided not to go away that weekend. He did not want Mr.

Davis to know about the grow-op and neither did he want the landlord to know. Mr. Davis was working some rotten shifts, so Mr. Mathews did not see him until Monday morning. At that time, he spoke to Mr. Davis to let him know Mr. Wilson was not going to be living at the house any longer. Mr. Mathews did not tell Mr. Davis why. He did not tell Mr. Davis what he had found in the basement. At that point, Mr. Mathews himself was thinking of moving and Mr. Davis was also moving back east so they were only planning to live in the house for a couple of more months. [ 42 ] That same Monday, Mr.

Mathews went back down to the basement and removed a mattress that belonged to Mr. Wilson. He took it upstairs and, from there, put it in the garage. He also moved out a lamp. He said he did not touch anything else. He explained there was no fridge downstairs so Mr. Wilson kept his food in the fridge in the kitchen. There was a sink in the basement which was working when he had last checked, but that was a long time ago. [ 43 ] Mr. Mathews said he had no reason to go into the basement. The last time he had been there was when he had vacuumed and swept before Mr. Wilson had moved in.

At that point, there was no marihuana, no marihuana growing equipment, no lights, and no plastic in the basement. [ 44 ] Mr. Mathews said he had not noticed any changes to his Hydro bill. He explained he has equal monthly billing. At one point, either in September or October 2011, after a Smart Meter had been installed, he noted the bill was very low. However, when he got the bill a month later, it was back to normal. [ 45 ] Mr. Mathews was asked about the stack depicted in some of the pictures taken by the police. He said the stack was old. It was there when he moved in. [ 46 ] Mr.

Mathews testified that he next saw Mr. Wilson a few days after the confrontation on the Friday, that was on the following Wednesday. Mr. Wilson showed up at the house after work. He knocked and said he had personal things to pick up downstairs. Mr. Mathews did not go down with him, but told him to make it quick. Mr. Wilson was downstairs for about 20 minutes. When Mr. Wilson returned upstairs, he asked Mr. Mathews where his bed was. He also asked if he could stay a couple of more months and suggested that things could be worked out. Mr. Mathews insisted that Mr. Wilson move out on Friday. Mr.

Wilson was upset. [ 47 ] February 10, 2012, was a Friday. That morning, Mr. Mathews went out shopping for groceries with a friend who had volunteered to drive him to the Superstore. Mr. Mathews said he was gone less than an hour. When he returned, he saw a police officer at the house. He said he thought there had been an accident. He spoke to the police officer who asked whether he lived in the house. When Mr. Mathews told him he did, the police officer placed him under arrest and put him in the back seat of the police vehicle. After he was arrested, Mr. Mathews saw the police taking Mr. Davis out of the house.

Mr. Davis was in his stocking feet and was in handcuffs. [ 48 ] Mr. Mathews said while he was still at the scene a police officer asked him questions. A police officer told him the door had been kicked in and three people had been seen running from the house with garbage bags. During the course of his discussion with the police officer, Mr. Mathews said the officer told him a young man who lived next door with his parents was a gang member. Mr. Mathews was taken to the police station and later he gave a statement to the police. [ 49 ] I now turn to the police interview of Mr. Mathews. Mr.

Mathews was interviewed by Constable Cummings on February 10, 2012, at approximately 3:42 p.m. The interview was audio and videotaped and the video was played in court. In the interview, Mr. Mathews acknowledged he had spoken to legal counsel and that he wanted to speak to a lawyer. [ 50 ] He provided some general information to Constable Cummings, but initially he was not prepared to tell the officer what was in the basement. He was specifically asked about the marihuana grow operation in the basement. He said he could not answer any questions until he spoke to his lawyer in person.

He acknowledged he had a roommate, Patrick Davis, who paid him rent. He said Mr. Davis had nothing to do with anything in the house as he was simply renting. [ 51 ] Eventually, later in the interview, Mr. Mathews told the officer he was never going to do anything like this again. He also said he had to take the blame for the grow-op. When asked what he meant by that, he said he was the one living there and the grow-op was his. He said he had not been running it for long and he was desperate. [ 52 ] Later in the interview, he said this was the first time he had run a grow operation. He said it was desperation.

He could not work and was depressed all the time because he had no money. He said someone helped him. He was not going to get into that because it was his mistake. [ 53 ] Mr. Mathews made a number of other statements in the course of that police interview which are not being set out in these reasons. [ 54 ] In direct examination, Mr. Mathews was asked about statements he made to Constable Cummings. He said that during the police interview he was under duress. He explained this was not due to the police officer. Mr. Mathews felt responsible because of the way he handled the situation.

He was overwhelmed, anxious, and depressed. He said he started saying things so he and Mr. Davis could get out of jail. He was very concerned about the fact Mr. Davis had been arrested. He felt responsible for him and for putting him in that position. [ 55 ] Mr. Mathews said he made comments he should not have made. He took responsibility because he believed he had no choice. He believed that he would not be able to prove the fact Mr. Wilson was living in the basement. He thought if he did not take

responsibility, Mr. Davis would be charged. [ 56 ] In cross-examination, the Crown established the following: 1. Mr. Mathews was not employed in October 2011. He was living on his disability pension and some money that he earned at a gas bar in Pitt Meadows where he went on weekends. 2. During the week, he stayed at home most of the time, but on weekends, he went up to the lake in Pitt Meadows. 3. When he was at home he saw his roommates if they were using the common area of the house. 4. He had never thought to rent the spare middle room to Mr. Wilson because it was too small. Moreover, Mr.

Wilson was looking for something cheap. He only wanted a place to rest his head two or three nights a week. 5. The basement was unfinished except for one room which Mr. Wilson used as his bedroom. That room had panelling on the walls and a wooden floor. 6. There was no bathroom downstairs. There was only one bathroom which was upstairs. 7. Mr. Mathews said he never noticed Mr. Wilson setting up the grow-op. Specifically, he did not notice Mr. Wilson bringing in shrouds, lights, rolls of plastic, and so on. He speculated that Mr. Wilson probably had someone help him while Mr. Mathews was not there. 8.

Although the house was fairly quiet, he never heard any suspicious noises. 9. Mr. Mathews never smelled anything. 10. Mr. Mathews never saw Mr. Wilson arrive with a car. 11. The back doors to the house, both the one at ground level that led to the basement and the one on the second floor that led to the kitchen, were locked, but he did not have a key. 12. The door leading to the basement could be opened from the kitchen side using a key and from the basement side simply by turning a knob on the lock. 13. Mr. Mathews did not think about calling Mr. Wilson to check about the missing key.

He felt it was very strange that the key was missing. Going downstairs to the basement was a spontaneous act. 14. Mr. Mathews agreed that after Mr. Wilson left on Wednesday, he did not hear from him either on Thursday or Friday. He said if Mr. Wilson did not show up, he was going to get rid of everything himself. He said he had no idea what cost was involved in setting up a grow-op. 15. Mr. Mathews was asked about the smell of marihuana. He agreed he had dried marihuana on his person four or five times a month when he was smoking it for medicinal reasons.

He did not notice the difference in smell between burnt marihuana and dried marihuana. It all smelled the same to him. However, he said marihuana had a pungent smell. He said he would recognize the smell whether it was smoked or dried. He said he had noticed the smell of marihuana in cases where people were driving by. He agreed the smell of marihuana is a noticeable smell. 16. Mr. Mathews said when he walked downstairs into the basement, he did not smell a single whiff of marihuana. [ 57 ] With respect to the statement to the police, Mr. Mathews acknowledged he did not mention Mr. Wilson to the police.

He also acknowledged he told Constable Cummings that he did not have a record. He agreed that he had a record for a drug-related offence [this sentence was edited for publication]. He said he mentioned it to someone and the girl said that was a long time ago. He acknowledged that when he told Constable Cummings that someone had helped him set up the grow-op, he was lying. [ 58 ] He said he told Constable Cummings what he wanted to hear. He did that because he wanted to get his friend, Mr. Davis, out of jail. Although there had been no suggestion from the police, Mr. Mathews assumed Mr. Davis would be charged. Mr.

Mathews was asked why he had not mentioned Mr. Wilson to the police when at the same time he exhibited a level of concern for Mr. Davis. Mr. Mathews said that Mr. Wilson had threatened him. He said that Mr. Wilson had told him, "Don't fuck with me, I have lots of friends." Mr. Mathews acknowledged that he had lied to the police officer during the interview, but said now at trial he was telling the truth. [ 59 ] I now turn to legal principles applicable in this case.

Section 5(2) of the Controlled Drugs and Substances Act provides that, "No person shall, for the purpose of trafficking, possess" certain substances set out in schedules to the Act. One of those substances is cannabis marihuana. [ 60 ] In order to prove possession, the Crown must prove the accused had both knowledge and control of the drugs in question. The definition of "possession" which is found in s. 4(3) of the Criminal Code is adopted in s. 2 of the Controlled Drugs and Substances Act . Section 4(3) of the Criminal Code provides as follows: For the purposes of this Act, (

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

(

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [61] Section 4(3) thus provides that possession can be proved by establishing that an accused had personal possession, constructivepossession, or joint possession of a prohibited drug. However, in each instance, the Crown must also establish that an accused had bothknowledge and control of the prohibited drug or substances. [62] I now turn to production of marihuana.

Section 7(1) of the Controlled Drugs and Substances Act provides that, "Except asauthorized under the regulations, no person shall produce a substance included" in certain schedules under the Act. Cannabis marihuanais one of those substances. [63]

Section 2 of the Controlled Drugs and Substances Act defines the term "produce". That definition includes cultivating,propagating, or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained. [64] The gravamen of the offence of production requires proof of active participation in the growing of the plants; see R. v. Tran,[2006] B.C.J. No. 2684.

This typically includes some act of tending to the crop or enabling its growth such as planting, assembling theapparatus, applying fertilizer, or harvesting the crop. [65] A person may be found guilty of the offence of production by directly participating in acts which constitute production asdefined in the Controlled Drugs and Substances Act.

However, a person may also be found guilty as a party to the offence of productionif he or she aids or abets another person to produce a prohibited substance. [66] In circumstances such as this one where the Crown's case is largely based on circumstantial evidence, I must be satisfied beyonda reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts; see R. v. Cooper(1997), (SCC), 34 C.C.C. (2d) 18. The test was described in slightly different terms in R. v.

Charemski, (SCC), [1998] 1 S.C.R. 679, namely that: There was no other rational explanation for the circumstantial evidence but that the defendant committed the crime. [67] Where evidence is circumstantial, it is necessary to distinguish between drawing inferences and impermissible speculation. This distinction has been discussed in a number of cases and was recently reviewed by Madam Justice MacKenzie in R. v. Giles, 2008BCSC 367 , [2008] B.C.J. No. 522. The inference must be one that can be reasonably and logically drawn. It cannot depend onspeculation or conjecture.

An inference in a criminal case ought not to be based on a mere guess or suspicion. [68] In cases involving circumstantial evidence, a judge must be careful not to simply weigh each individual circumstance inisolation to see whether or not it supports a finding of guilt. Instead, all of the circumstances taken together must be considered todetermine whether the evidence as a whole amounts to proof beyond a reasonable doubt; see R. v. G.L.J., [1997] B.C.J.

No. 2992. [69] It is a fundamental principle of Canadian criminal law that every person charged with an offence is presumed to be innocentuntil the Crown proves his or her guilt. The presumption of innocence applies throughout the trial. The accused does not need to provehis innocence. Instead, the Crown bears the responsibility of proving guilt beyond a reasonable doubt. [70] The Supreme Court of Canada in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, noted that a reasonable doubt isnot an imaginary or frivolous doubt. It must not be based on sympathy or prejudice.

Rather, it must be based on reason and commonsense. A reasonable doubt must logically arise from the evidence or absence of evidence. It is not enough to believe that an accused isprobably guilty. However, the Crown is not required to prove guilt to an absolute certainty. [71] The principle of proof beyond a reasonable doubt applies not only to the ultimate determination of whether the alleged offenceshave been proven, but also to the assessment of credibility in cases where credibility is a central issue. [72] In R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out how a judge ought to applythe rule of reasonable doubt when the credibility of the accused is in issue. The three steps set out in that decision are: 1. If the court believes the evidence of the accused, it must acquit. 2. If the court does not believe the evidence of the accused, but is left in reasonable doubt by it, it must acquit. 3.

Even if the court is not left in doubt by the evidence of the accused, it must ask itself on the basis of the evidence which it acceptswhether it is convinced beyond a reasonable doubt of the guilt of the accused. [73] A fourth step was added in a later decision of the British Columbia Court of Appeal in R. v. H.(C.W.) (1991), (BC CA), 3 B.C.A.C. 205, namely, if after consideration of all the evidence, the court is unable to decide whom to believe, it mustacquit.

[74] Assessing the credibility and reliability of the evidence of a witness is not always an easy task. A trial is not a contest betweenthe alternative versions of events offered by the Crown and the defence.

Instead, a judge must consider all the evidence in order todetermine whether the Crown has proved the accused's guilt beyond a reasonable doubt. [75] In this case, credibility is a central issue because the accused testified on his own behalf and, while he admitted being at thehouse and becoming aware of the marihuana plants in his basement, he vehemently denied that he knew anything about the grow-op orfacilitated it in any way. Accordingly, I must assess Mr.

Mathews' evidence in light of the evidence as a whole and determine whether Iaccept all, some, or none of his testimony. [76] Some of the factors to consider in assessing credibility are the following: opportunity to observe, ability to perceive andremember, consistent and inconsistent statements, internal inconsistency in the testimony, consistency or inconsistency with otherevidence, and the overall sense of the evidence and its inherent plausibility. The jurisprudence makes it clear that there is a differencebetween veracity, reliability, and accuracy. [77] In R. v.

Dhillon, 2007 BCPC 95, my brother Judge Jardine noted that accuracy must be considered before one finds the evidenceto be reliable. Internal inconsistencies, external inconsistencies, the harmony of the evidence with all of the other evidence in the case,that is, the overall sense of the evidence and its inherent plausibility, whether or not there is evidence which is clearly indicative of thefact that a witness is mistaken, wrong, or inconsistent must be considered in the assessment of the witness' testimony. [78] In R. v. Whitman, 2005 BCSC 1574 , [2005] B.C.J. No. 2448, it was noted by Mr.

Justice Romilly that credibility is adifficult issue made up of complicated and subtle ingredients. It may be difficult, if not impossible, for the trial judge to describe orarticulate the various factors that were considered in arriving at an assessment of credibility. [79] I now turn to the assessment of Mr. Mathews' credibility. The case before me is not like many of the grow-op cases that cometo trial in this court in that Mr. Mathews admits a grow-op was found in the basement of the rented house where he lives. He also admitshe came to know about the grow-op.

However, he denies he had anything to do with the grow-op. Mr. Mathews asserts the grow-opwas established and maintained by a roommate without his knowledge or consent. He denies he did anything to assist his roommate. [80] He asserts that once he discovered the grow-op, he told Mr. Wilson, his roommate, to move it out. He acknowledges that heallowed Mr. Wilson a period of one week to disassemble the grow-op, but claims he did so because he did not know what else to do andbecause he was afraid of what Mr. Wilson might do if he called the police. [81] After considering Mr.

Mathews' evidence in the context of the evidence as a whole, I have concluded I do not believe hisevidence and his testimony does not leave me in a reasonable doubt. I reached this conclusion for a number of reasons including thefollowing: 1. Mr. Mathews gave a statement to the police on the evening following the police's discovery of the grow-op. At that time, he hadspoken to a Legal Aid lawyer. As well, the police officer who interviewed him also explained his legal rights to him, albeit in thevernacular. Mr.

Mathews was aware he had the right to remain silent and that he did not have to make a statement to the police. Nevertheless, during the course of the police interview, Mr. Mathews took responsibility for the grow-op. He claimed the grow-op washis, that someone had helped him set it up, that he was in desperate circumstances, and that he had not been running the grow-op for verylong. However, at trial, Mr. Mathews said this was all a lie. His explanation for telling the lies to the police was that he was under duress and he was concerned that his friend, Mr. Davis, would becharged.

This explanation defies common sense. The statement was made voluntarily. There was nothing oppressive about the natureof the interview. Mr. Mathews himself placed no fault for the duress on the feet of the police officer. Mr. Mathews clearly understood his legal rights and, in particular, his right to consult with counsel. The police had not done anything tosuggest Mr. Davis would be charged. It is my conclusion that Mr. Mathews' explanation in court is an attempt to recant his confession of guilt made to the officer. 2. Mr.

Mathews' testimony that he was not aware of the marihuana grow-op until the week before his arrest is, in the circumstances,simply not believable. Mr. Mathews testified that because he is disabled and does not work, he is generally at home during the week. His evidence about Mr. Wilson also suggests that Mr. Wilson was at the house several times a week. If it was Mr. Wilson who set upthe grow-op, Mr. Wilson would have needed to come through the upstairs of the house with all of the paraphernalia for the grow-opwhich included rolls of plastic sheeting, a CO2 generator, a fan, and so on.

Even if the plants were grown from seed, a large quantity of plastic pots, at least 165, in which to grow the marihuana plants would haveto have been carried into the basement. I do not believe that all this could have been done surreptitiously and without Mr. Mathews'knowledge. 3. Mr. Mathews claims he did not smell anything coming from the basement. He purported not to know the smell of freshmarihuana, although he acknowledged he had handled dried marihuana and smoked it. He said the smell of dried and smoked marihuanawas all the same to him. He said it was a pungent smell.

Constable Sunder testified that he smelled fresh growing marihuana when he was walking down the driveway. If the smell was sostrong that Constable Sunder could smell it outside, I find it difficult to accept Mr. Mathews' claim that he could smell nothing. Even if he could not identify the smell as being that of fresh marihuana, given the evidence, I find there would have been a smell. In thisregard, it is clear that the door in the kitchen that led down to the basement was the only door by which access could be easily gained tothe grow-op. According to Mr.

Mathews, the ground-level basement door could not be opened because it was locked and there was no

key. Further, Mr. Mathews claims that Mr. Wilson was going to his room in his basement through the inside door two and three times a week. This means that the door was opened at least twice each time, that is, each time Mr. Wilson entered into and exited from the basement. Any odour produced by the plants and/or the growing medium and/or the nutrients could thus find its way upstairs. Corporal Bolt, in his expert report, noted that this marihuana grow-op had a very basic system of ductwork to keep the air circulating through this operation. 4.

Even if that was not the case, as noted by Corporal Bolt in his expert report, producing marihuana indoors requires modification to the growing room which includes light, air, water, nutrients, growing medium, and heat. In particular, Corporal Bolt noted that marihuana plants need lighting every day for the duration of their life. He said that lights usually operate on cycles that are either 12 hours on and 12 hours off or 18 hours on and six hours off. Even if there was no smell, it is not believable, given Mr.

Mathews' testimony this was a very quiet house, that he would not have noted other indicia of a grow-op such as lighting, humidity from the 165 plants that were in the confined space of the basement, the noise of the fan, and the noise of the CO 2 generator. 5. This grow-op was a valuable asset which could produce income in the range of $30,000 to $40,000 if sold at the pound level or approximately $66,000 if sold at the ounce level. Someone had gone to a lot of trouble and taken considerable time to set it up. There was no security between the upstairs and the basement except for the locked door to which Mr.

Mathews and his roommate, Mr. Davis, had access. It defies credibility that someone would rent that space and set up a potentially valuable grow-op op which was so readily available to others living in the house who apparently did not know about it. The potential value of the crop and the cost and effort to set up the operation along with other evidence leads me to draw the inference that Mr. Mathews had knowledge and, at the very least, some control over the grow-op. 6. Mr. Mathews' explanation as to why he gave Mr. Wilson one week to clear the grow-op is equally incredible. First, given Mr.

Mathews' stated concern and surprise at finding the grow-op and his desire to have it gone quickly, it is counterintuitive to then give Mr. Wilson seven days to clear the grow-op. Mr. Mathews said he discovered the grow-op on Friday. His evidence also suggested that Mr. Wilson was generally there on weekends. Accordingly, there was no reason why he could not have asked Mr. Wilson to clear everything out immediately or by the end of that weekend. Second, if there was a Mr.

Wilson, it makes no sense that he would leave a valuable crop of marihuana in the home of someone who had expressed grave concerns about its presence and wanted it gone. Third, it also makes no sense, as asserted by Mr. Mathews, that Mr. Wilson went to the house on Wednesday night to pick up some personal things, yet he left behind the most valuable thing of all, namely, at least 165 plants of marihuana. [ 82 ] Accordingly, I do not accept the explanation of the accused as to how he learned of the marihuana grow-op.

In particular, I do not accept his evidence that he had no knowledge, control, or involvement in the grow operation. I find that he had all three. I cannot accept his evidence that the grow-op was in the process of being removed by Mr. Wilson. In addition to not accepting Mr. Mathews' explanation, I am not left in reasonable doubt by it. [ 83 ] I find on the basis of the evidence before me that the Crown has proved beyond a reasonable doubt that Mr. Mathews had possession of the marihuana found in the residence.

I am satisfied that the Crown has established the guilt of the accused beyond a reasonable doubt on both the production charge and the charge of possession for the purpose of trafficking. Mr. Mathews' guilt is the only reasonable inference that can be drawn from the facts established at the trial. Accordingly, I find Mr. Mathews guilty as charged. [REASONS FOR JUDGMENT CONCLUDED]