R. v. Flore Date:, 2013 BCPC 398

Citation: R. v. Flore Date: 20131108 2013 BCPC 0398 File No: 34231 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VASILE FLORIN FLORE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Crown: T. Ferreira Counsel for the Defendant: D. E. M. Jenkins Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: August 7, Sept 17 & 18, 2012; March 12 and May 14, 2013 Date of Judgment: August 14, 2013 and November 8,2013 OVERVIEW

[ 1 ] Mr. Flore comes before the Court charged with the two counts under the Controlled Drugs and Substances Act namely: s. 7(1) producing cannabis marijuana; and s. 5(2) unlawful possession of marijuana for the purpose of trafficking [ 2 ] The events leading to these charges began on June 17, 2011, the day the RCMP executed a warrant at 38139 Lucas Road, Hixon, British Columbia. The RCMP found 1456 marijuana plants in various stages of maturity in a house on the property. Mr.

Flore was the discovered on the property and arrested. [ 3 ] The RCMP had conducted some surveillance of the property on June 16, 2011 in the afternoon. Mr. Flore was observed on the property and a photograph was taken of him by Cst. Hebert at around 4:00 PM that afternoon. [ 4 ] On June 17, 2011 the RCMP discovered that the house was given over entirely to the cultivation of marijuana except for a bedroom that had been set up in what had been the living room of the house. All other rooms including the hallways, kitchen, and bathrooms were used in supporting the grow operation (grow op).

Besides the rooms used for growing the marijuana, there was a drying area, chemical storage and other equipment including a large portable electrical generator. [ 5 ] The Crown called five RCMP members to provide evidence for the Court. [ 6 ] Mr. Flore testified in his defence. His sister, Maria Sacra, also gave evidence on his behalf. [ 7 ] Other evidence was provided in Exhibit 1, a Booklet of Admissions, photographs and documents. The contents are as follows:

a) Tab A: photographs of the June 16 th surveillance and June 17th execution of warrant;

b) Tab B: flowchart;

c) Tab C: diagram of the premises;

d) Tab D: statement of the Accused, Vasile Flore, to Cst. Palmquist of the RCMP;

e) Tab E: curriculum vitae of Cst. Kenneth Davis;

f) Tab F: expert opinion report on the cultivation of marijuana by Cst. Kenneth Davis;

g) Tab G: supplemental opinion of Cst. Kenneth Davis. [ 8 ] At Tab F., Cst. Davis gave his opinion that the potential value of the cultivated marijuana plants found on the property could be at least $491,400.00 to $1,237,890.00. [ 9 ] Cst. Davis’ reports at Tab F and G have been admitted by the Defence into evidence without cross-examination. [ 10 ] There is no dispute about Cst. Davis’ valuation of the marijuana crop seized at the property or his opinion at Tab G, that this particular grow op required daily attention and manual watering of the plants. [ 11 ] Other exhibits considered included: a.

Exhibit 2: a video of Mr. Flore’s statement to the RCMP; b. Exhibit 3: a lease between Maria Sacra and Vasile Tamaian; c. Exhibit 4: a receipt from a post office for fax services; d. Exhibit 5: Mr. Flore’s Romanian Identity card and Saskatchewan Health Card; e. Exhibit 6: Mr. Flore’s Social Insurance Card ( Canada); f. Exhibit 7: Mr. Flore’s Permanent Resident card issued by the Government of Canada. ARGUMENTS [ 12 ] The Crown argues that Mr. Flore was involved in the production of the marijuana or he is a party to the offence. The Court should disbelieve the evidence of Mr.

Flore and instead make an inference from the circumstantial evidence of the knowledge and control the Crown has to prove in order for the Court to convict Mr. Flore on both counts.

[13] The Defence argues that Mr. Flore is a recent resident in Canada, having immigrated from Romania to this country some fivemonths before the events of June 17, 2011. The Defence suggests that at that time, Mr. Flore was unsophisticated as to Canadian waysand did not speak much English when he was arrested. I would note Exhibit 7, a picture of Mr. Flore’s Permanent Resident card issuedby the Government of Canada. [14] Mr.

Flore testified that at the time of his arrest he had no knowledge of the marijuana in the house on Lucas Road and theDefence argues that without such knowledge, he should be found not guilty of either of the Counts. [15] Mr. Flore testified further he never had anything to do with marijuana before and had no idea what it looked like or what itsmelled like. He was only there on the property to take care of a dog and a pair of sheep. [16] It is agreed at paragraph 14 of the Admissions in Exhibit 1 by the Crown and the Defence that if the Court finds Mr.

Flore is inpossession of the marijuana then the offence of possession for the purpose of trafficking is made out without further evidence beingcalled. QUESTIONS FOR THE COURT 1. What are the elements of the offences of production and possession for the purpose of trafficking that the Crown must prove? 2. Does Mr. Flore’s evidence raise a defence? 3. Is there evidence circumstantial or otherwise, to prove beyond a reasonable doubt that Mr. Flore had knowledge and control of themarijuana grow operation in the house. Question 1: What are the elements of the two offences charged? [17] The case of R. v.

Douglas Lee 2012 BCSC 1489 is a decision of Mr. Justice Romilly of the BCSC. At paragraph 35 of thejudgment his Lordship writes: In R. v. Ngo 2009, BCCA 301, Rowles J.A. for the court, discusses some aspects of the offenses under s-ss 7(1) of the Controlled Drugsand Substances Act and unlawful possession of a controlled substance, cannabis (marijuana), for the purpose of trafficking contrary tosection 5 (2) of the Controlled Drugs and Substances Act, [the CDSA].

She wrote at paragraphs 51...: [51] To succeed in a prosecution for the offence of possession of marijuana for the purpose of trafficking the Crown must prove that anaccused has both knowledge and control of the marijuana. The definition of “possession” in

section 4 [3] the Criminal Code isincorporated into the CDSA by s 2 [1] of that Act.

Section 4 [3] of the Criminal Code identifies three forms of possession and under eachform in the definition, knowledge and control are key elements: R. v. Vu [SV], 2002 BCCA 659 , 2002 BC CA 659 at para. 17,179 BC AC 262; Bauer [2003] BC CA 138 at para 23.

With respect to the possession for the purpose of trafficking count, the issue onappeal is whether on the whole of the evidence the verdict is one that a properly instructed jury acting judicially could reasonably haverendered. [52] As previously noted in Powell [(1983), (BC CA), 9 C.C.C. (3rd) 442,] Essen J.A. held that possession is not anincluded offense in cultivation and that the gravamen of the offense of cultivation is active participation in the growing of prohibitedplants. See also Vu [S.V.] at para 27.

However an individual may be found guilty of production as either a principal, or as a party whoaids or abets the principal: Hubble [2002 BC CA 561] at paras 10, 15; Criminal Code s. 21. In a grow op case an accused may be foundto have aided or abetted in the production of marijuana by maintaining the environment in which the marijuana is produced with thepurpose or intent to assist in the crime. Question 2: Credibility: The evidence of Mr.

Flore [18] Any analysis of evidence in a criminal trial involving the issue of credibility must follow the steps established by the SupremeCourt of Canada in a case called R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at page 757. I refer to The Honourable JudgeSkilnick's reasons in R. v. Kane, [2011] B.C.J. 1320 where, at paragraph 40, he wrote: [40] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v.

D.W., (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit.

Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [41] In R. v. C.W.H. (1992), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr. Justice Wood (as he was referred toback in those days) gave the following further advice: "If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit." [19] The Defence called the Accused’s sister, Maria Sarca, as a witness.

She testified that she owned the property on Lucas Road inHixon, British Columbia. She had leased the property to a fellow Romanian immigrant named Vasile Tamaian in or about January 2011. A copy of the lease was placed in evidence as Exhibit 3. [20] In May of 2011, Ms. Sarca was obliged to send a copy of the lease agreement to the bank that held her mortgage. She provideda copy of the postal receipt regarding her faxing of the lease to the Toronto Dominion Bank in Prince George. This receipt is in evidenceat Exhibit 4. She had given Mr.

Tamaian the only set of keys for the property. [21] She testified she had purchased the property on Lucas Road as an investment. She knew Mr. Tamaian as a member of theRomanian community in Prince George, but did not know him well. Mr. Tamaian paid his rent in cash on most occasions. In June 2011,Mr. Flore lived with Ms Sacra, her husband and her four year old daughter at her home in Prince George. [22] Ms. Sacra was shown Exhibit 1, Tab A, photograph 19, which shows a blue bag on the top of the bed in the living quarters ofthe house. She identified that bag as coming from her home.

In fact, she had purchased some items for her young daughter and thatthese items had been placed in this plastic bag at the store. [23] Mr. Flore took the witness box and gave evidence through an interpreter on his own behalf. He stated that the relationship withMr. Tamaian was very casual and he had met Mr. Tamaian once at a coffee shop in Prince George. He had also seen Mr. Tamaian whenhe showed up at his sister's apartment to pay the rent. Mr. Flore’s evidence is that he and Mr. Tamaian had a very casual acquaintance. [24] Mr. Flore’s evidence is that on June 16, 2011, Mr.

Tamaian showed up mid-morning at his sister’s apartment to pay the rent. As Mr. Flore’s sister, brother-in-law and niece were all out of the apartment at the time, Mr. Flore answered the door. [25] Mr. Flore testified that Mr. Tamaian asked Mr. Flore if he could come to the Lucas Road property for two or three days to lookafter his dog and sheep as Mr. Tamaian was going to be away from the property for a couple of days. [26] Mr. Flore agreed to stay on the property. He told the Court that he did not have a job and as he had grown up on a farm and heliked animals. He decided to help out Mr. Tamaian.

They left for the property right away. Mr. Flore testified he put a change of clothesin the blue plastic bag that his sister identified in a photograph in Exhibit 1. He testified he knew it would be a short stay and did noteven pack a toothbrush. [27] Mr. Flore said that when he arrived at the Hixon property he changed into what he called “work clothes”, a gray ‘hoodie” andtraining pants. [28] Mr. Flore identified the picture in Exhibit 1, Tab A, photograph DSC0013. He confirmed it is a picture of him.

He told theCourt he was carrying some tools because he was going to fix the fence to prevent the sheep from leaving the property. Due to the hottemperature he left a pail of water for the sheep in the shady trees in the woods behind the house. The evidence is this photograph wastaken by Cst. Hebert on the afternoon of June 16, 2011. [29] Mr. Flore did not tell his sister he was going to Hixon as she was at school when he departed Prince George. He did have a cellphone and intended to call her later. On the way to Hixon he and Mr.

Tamaian stopped and bought some bread and sausages for Mr.Flore to eat while he was on the property. Mr. Flore also testified there was some stew in the fridge at the house that was also providedfor him to eat. [30] He stated he had never been at the property before and they arrived shortly before noon. Mr. Flore testified that Mr. Tamaianshowed him around the property, including where he was to sleep. They were on the property together for 45 minutes before Mr.Tamaian departed. [31] He said he was never taken upstairs and that access was through a side door of the house. He only saw the bedroom and notmuch else.

Mr. Flore told the Court he did not even use the bathroom in the house. If he had to go to the toilet, he went to the woods atthe back of the property. [32] Mr. Flore testified that there was an odd smell in the house. He said he had never been exposed to marijuana before and did notknow what it smelled like or what it looked like. He tried to call his sister and tell her about the peculiar smell but said he could not get asignal for his phone. [33] He did not know anything about the bag of marijuana on the table in the bedroom, how it got there or who it belonged to.

Healso said he had no knowledge of the bag of marijuana the RCMP found in the fridge. [34] Mr. Flore said that when the police arrived on the property he was outside. He disagrees with the evidence of Cst. Torbohmthat he was running for the woods behind the house when he was arrested by the Constable. He says he was gathering wood to make afire so he could cook his food.

[ 35 ] Mr. Flore stated that when the police came he did not really understand what was going on but he knew they were the police. He followed their instructions and got down on the ground. [ 36 ] Defence counsel asked Mr. Flore directly about certain contents of the house. In respect of Exhibit 1, Tab A, Mr. Flore specifically denied having anything to do with:

a) the bags of dirt in the kitchen (photograph 10);

b) the marijuana grow rooms (photographs 11,12 and 14);

c) the chemicals and the hoses in the bathroom (pictured in photographs 15 and 16);

d) the electrical system (photograph 17);

e) the ducts (photograph 18);

f) the dryers (photograph 35);

g) the bag of marijuana in the fridge (photograph 38);

h) he added that he never went into the bathroom in the house as he went to the bathroom in the forest;

i) he also stated his English is much better today than it was then; (

j) Mr. Tamaian gave him the keys for the house. [ 37 ] In cross-examination, Mr. Flore repeated that he did not even leave a note for his sister that he was going to the property as he was going to phone her. [ 38 ] He did not take a toothbrush, only a pack of gum. He did not take any food for himself and he did not know if there was a phone at the residence. [ 39 ] He did not know what to expect about the property and had no idea that it was isolated. [ 40 ] In cross-examination of the RCMP witnesses, it was admitted that no evidence of Mr.

Flore’s fingerprints were found on any of the grow op equipment. [ 41 ] Mr. Flore denies ownership to any of the clothes in the bedroom (as seen in photograph 19 of Exhibit 1) are not his, except for a few belongings in the blue plastic bag on the bed, and his wallet with his identity cards. CONCLUSIONS [ 42 ] Mr. Flore’s evidence is that he was in the house from around noon on June 16, 2011 until the police arrested him at approximately 6:07 PM on June 17, 2011. [ 43 ] He testified that he and Mr. Tamaian were on the property for 45 minutes, before Mr. Tamaian departed. Mr.

Tamaian showed him around the property and where to sleep. [ 44 ] Mr. Flore was left alone on the property on June 16, 2011. He testified he had no idea of how to contact Mr. Tamaian. He also had no idea when Mr. Tamaian would return to the property, only that it he might be back in two or three days. [ 45 ] He said he spent one night on the property. He had a lot of free time on his hands with nothing to do except sleep. [ 46 ] The Crown cross-examined Mr. Flore on his evidence. He was shown the photographs at Tab A of Exhibit 1.

These photographs depict the interior of the house and the layout of the grow op. [ 47 ] He was asked about photograph 8, the entrance to the house and asked about the big silver ventilation pipe running along the ceiling. [ 48 ] Mr. Flore responded he only went to the bedroom. He did not look around the house at all; he only saw the bedroom and the fridge outside the door to the bedroom.

The fridge, he said, was in the hallway and he pointed out that anyone can set up a house anyway they want. [ 49 ] The Crown showed through the photographs at Tab A and the house plan at Tab C, that the fridge is in fact in the kitchen and in order to arrive at the kitchen, Mr. Flore would have to pass through the hallway and past the rooms where the marijuana plants were located. [ 50 ] Mr. Flore testified as to a strange smell in the house, but did not see anything out of the ordinary. [ 51 ] In the Admissions Book, there is a diagram of the house at Tab C.

It is apparent from photograph 22 that the bedroom was in fact a living room at the front of the house.

[52] It is noted that Mr. Flore had to go through the house to get into the yard because the front door was not useable. Cst. Friesentestified the front door was barricaded by the 2 x 4’s screwed into the door jam. To leave the house, Mr. Flore would have had to walkby the areas of the house depicted in the photographs at Exhibit 1. [53] Photograph 8 shows bags of soil in the kitchen and the counter is cluttered with containers. In photograph 9 there are largesilver ducts running along the ceiling. [54] Photograph 13 of the main floor hallway shows ducts and a large electrical panel set up on a

section of plywood. [55] Photograph 11 and 12 is a grow room. Mr. Flore would have walked past to the kitchen, which was the only exit to outside. [56] Further, Mr. Flore denies seeing the bag of marijuana on the table in the bedroom or the other bag of marijuana located in thefridge. [57] Mr. Flore is emphatic that he did not see the ducts along the ceiling, the electrical panel in the hallway, or that the kitchen andbathrooms were full of bags of dirt and growing equipment. [58] He saw nothing when all these things were clearly there to be seen. For these reasons, I do not believe Mr. Flore’s testimony.

The detailed photographs at Exhibit 1, Tab A, show the grow op was not confined to the plants in the bedroom but in all the areas of thehouse such as the kitchen, bathroom, and hallways. I do not accept Mr. Flore’s evidence that he was in the house for roughly 24 hours,but denies seeing the bags of dirt in the kitchen, the piles of chemicals in the bathroom, the ventilation ducts and the electrical panel inthe hallway (photograph 32). These denials taint the rest of his evidence and I reject his explanation as to why he was on the property. [59] Again, I consider Mr.

Justice Romilly’s decision in Lee where he wrote at paragraph 59: “I also fully appreciate that Cromwell, J.A. [as he then was] observed in R v Mah, 2002 NSCA 99: [42] The W.D. Principal is not a “magic incantation”. Rather W.D. describes how the assessment of credibility relates to the issue ofreasonable doubt. What the judge must not do is simply choose between alternative versions and having done so convict if thecomplainants version is preferred.... The issue at the end of the day in a criminal trial is not credibility but reasonable doubt. [60] Hence, although I have rejected Mr.

Flore’s evidence except where corroborated, I still must be convinced that the Crown hasproved its case against Mr. Flore beyond a reasonable doubt. Question 3: Is there evidence circumstantial or otherwise to prove beyond a reasonable doubt that Mr. Flore had knowledge andcontrol of the marijuana grow operation in the house? Circumstantial Evidence [61] Mr. Justice Romilly discusses the issue of circumstantial evidence in the Lee case. Quoting further from Rowles, J. A. in the R.v.

Ngo decision at para 54: [54] In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt the trier of fact mustnot examine each individual circumstance in isolation. Instead the proper approach to consider whether all the evidence taken togetherestablishes the guilt of the accused and is inconsistent with any other rational conclusion: R v. G.L.J [1997] BCJ no 2994 para 29 (CA); R. v.

Alward (BC CA), [1993] 36 BCAC 14, at paras 5-7 [55] As to competing inferences from circumstantial evidence that might be open to a trial judge the observation of McEachern C.J.B.C.in R. v. To (1992)16 BCCAA, 223 at para41 is apposite: It must be remembered that we are not expected to treat real-life cases as a completely intellectual exercise or no conclusion can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof especially for inferencesconsistent with guilt but does not demand certainty..." [62] The Defence provided a volume of cases in which the Court of Appeal and the Supreme Court considered the evidence theCrown has to prove to establish the required of knowledge and control beyond a reasonable doubt. I note the overall theme from thesecases is that any conclusion made by the Court must be rational and persuasive. In Molnar BCSC, Mr. JusticeMcEwan wrote:

[17] in order to prove the charge of possession the Crown must establish both knowledge and control. Here there is evidence connectingthe accused to the house next to the garage where the marijuana was found as of December 11 or so, several weeks after the search. Onthe day the warrant was executed no one was at the residence. The garage was locked. I think it is reasonable from the photographs inevidence to infer the garage and the house were part of the same property. There was, however, no evidence before the court as to whoowned the property.

There was also no evidence admissible against the accused that he ever occupied the property at the time of theseizure. He appeared to be comfortably ensconced on December 11, 1996 but without more the evidence admits a number of otherpossibilities inconsistent with the accused’s control of the premises at the time the marijuana was discovered. [63] In the matter of R. v. Schick 2005 BCPC 457 , 2005 BCPC0457, the Honourable Judge R.M. Gallagher described thetest as follows: “Analysis: Crown and defence provided many cases which have been considered and which are of assistance to the court.

In the endeach case turns on its own facts. The crown's case is circumstantial. The test to be applied in such circumstances described in theChambers and Madison decision, Victoria Registry file number 20040225, February 25, 2004: Before basing a verdict of guilty on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt ofthe accused is the only reasonable inference to be drawn from the proven facts.

In approaching this task the court is to bring a measure of realism and to bear in mind that the criminal law does not demand proof tothe level of certainty. ” [64] In doing the analysis of the Crown’s evidence, I keep in mind the Defence argument that Mr. Flore was there to look after theanimals and that. Mr. Tamaian was a casual acquaintance, not a person that Mr. Flore knew very well. [65] Other evidence to consider is that there are no fingerprints of Mr. Flore on the drugs or on any of the grow op equipment. There is no mail to indicate this was Mr.

Flore's residence. [66] There is no evidence, argues the Defence, that Mr. Flore did anything, except water the sheep, feed the dog and fix the fence. WHAT PROOF IS THERE OF KNOWLEDGE AND CONTROL? Control of the Property [67] In regard to control, Ms. Sacra testified there were only one set of keys for the house. [68] Mr. Flore told Cst. Palmquist that the keys to lock up the house were on the table in the bedroom. [69] Cpl. Flood testified he went to get these keys. [70] Cpl. Flood says that he used these keys to lock the door of the house and lock the gate to the property. [71] This establishes Mr.

Flore’s control of the property where the grow op was located. KNOWLEDGE [72] There is no direct evidence or admissions that Mr. Flore had knowledge of the marijuana grow op on the property. The Courthas to look at the circumstantial evidence and determine if there are inferences that may be drawn to support the Crown’s argument. Value of the Crop [73] Mr. Flore testified that he hardly knew Mr. Tamaian, someone he may have met two or three times – not much more than anodding acquaintance. [74] Cst. Davies report at Exhibit 1, Tab F, puts a value on the marijuana crop of between $491,400.00 and $1,237,890.00.

TheCourt is asked to believe that Mr. Flore was not told about the marijuana nor did he realize the house was a grow op. [75] The Court of Appeal considered the conclusion concerning the similar circumstances found by C.J.A McEcheren in R. v. To at

para 40: I have reached the conclusion that it would be legitimate on the broad facts of this case to infer beyond a reasonable doubt that the accused knew the plastic bag contained a prohibited drug. In fact I think it would be the only reasonable inference which could be drawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspicious circumstances and the immense quantity and value of the drugs.

These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags, that such a possibility may safely be rejected. In addition his antecedent highly suspicious conduct most of which was affirmatively before he gave his disbelieved evidence make it impossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he was possessing. November 8 2013 [ 76 ] I continue reading this judgment from where I stopped on August 14, 2013.

On that day I was obliged to take a break in reading my decision. [ 77 ] On return from the break counsel for the Accused submitted to the Court that I made an error in the facts as they were recited in paragraph 58 of this judgment. [ 78 ] In essence, I had stated that Mr.

Flore, in his evidence, denied seeing the plants or the equipment used in support of the grow up. [ 79 ] I stopped giving my decision and ordered that counsel make written submissions as to the evidence that I had recited at paragraph 58. [ 80 ] Upon reading the transcript, and in reviewing the submissions filed by counsel, I have reconsidered the content of paragraph 58. I had misapprehended the evidence. Mr. Flore’s evidence was that he did not have anything to do with the equipment found in the house that was used to support the grow operation. Further Counsel for the defence points out Mr.

Flore was never asked in cross-examination about going into the grow rooms. The Crown argues that such questioning was not necessary due to this exchange in his cross- examination: [ 81 ] Q; And finally I’m going to suggest to you that you were fully aware of the marijuana growing inside of that residence? A. No, I did not know anything. (Transcript from September 17, 2012, p18 lines 45-47, p 19, 1-3) [ 82 ] To make it clear, however, there are other factors that lead me to disbelieve Mr. Flore: 1. Mr. Flore gave evidence he had very casual acquaintance with Mr. Tamaian. Mr. Tamaian, however, gives Mr.

Flore access to the property containing the grow op with a value between $490,000 and $1.2 million and put him in charge of this property for a planned period of two to three days. 2. Mr. Flore had the keys for the gate and the house. Ms. Sacra said there was only one set of keys for the property and Mr. Tamaian had them. Mr. Flore said Mr. Tamaian gave him the keys. 3. Mr. Flore’s wallet and more importantly his permanent resident card for Canada were found in the bedroom of the residence. 4. When the police arrived on the property Mr. Flore was arrested.

At the time of his arrest the evidence from a police witness is that Mr. Flore was running full stride for the woods behind the house. 5. Every inch of the house except for the bedroom setup in the living room of the house was "given over" to the production of marijuana. 6. Mr. Flore testified that the fridge was outside his bedroom door. The bedroom and the fridge outside the bedroom, was the only part of the house were Mr. Flore spent his time. The evidence from the police diagram of the house shows the fridge was located in the kitchen. Mr.

Flore would have to walk through the house to access any food in the fridge. 7. There were inconsistencies in his evidence. One example is that during cross-examination, Mr. Flore denied any knowledge of the pipes or venting in the house used to support the grow operation: Q. Do you recall seeing any venting pipes when you opened the side door to enter the property? A. No I did not. [Transcript from September 17, 2012 proceedings at trial (day 2), page 16, lines 27 – 29 8. However Mr. Flores laded later stated the following: Q.

Going back to the property at Hixon on Lucas Road, I'm going to suggest to you that use saw, when you open the side door some ducting and pipes on the ceiling?

A. You mean the side door entrance? Q. Yes. I saw one pipe and I was wondering what it is. I have no idea what it was. It looked like a tube and I haven't seen anything else. (Transcript from September 17, 2012 Proceedings at trial Day 2), page 21 lines 46 – 47, page 22 lines, 1 –6) [83] Although I disbelieve Mr. Flore’s testimony that is not the end of the analysis. I will repeat again the comments at paragraph59 of this decision and the quote from Mr. Justice Cromwell when he was at the Nova Scotia Court of Appeal: “The W.D. Principal is not a “magic incantation”.

Rather W.D. describes how the assessment of credibility relates to the issue ofreasonable doubt. What the judge must not do is simply choose between alternative versions and having done so convict if thecomplainants version is preferred.... The issue at the end of the day in a criminal trial is not credibility but reasonable doubt.” [84] At the time the delivery of these reasons was adjourned on August 14, I was addressing the issues of knowledge and control. [85] To recapitulate, I had addressed the issue of control of the property, and being satisfied that the evidence showed that Mr.

Florewas in control of the property that is the subject of these proceedings, [86] I turned to the issue of knowledge. [87] The first factor that I considered was the value of the crop. [88] After having noted the value of the crop as reported by Cst. Davies at Exhibit 1 Tab F, I cited the decision in R v To (1992), 16B.C.A.C. 22 at para 40 I will now continue with the rest of my decision: [40] In R. v. Vu

(2002) BCCA 659, Rowles J.A. wrote at para 15: “The trial judge rejected the evidence of the appellant and Mr. Tang and did so mainly because it was inherently implausible: “In the case at bar, I listened carefully to the evidence the accused and Mr. Tang, and I've concluded their evidence in its entirety is notcredible… but most importantly I find it totally incredible someone operating a marijuana grow operation containing 1.4 million dollars worth ofmarijuana would give the key to the grow op to three virtual strangers.

It simply defies logic that the person in charge of a grow opwould hire three people he hardly knows telling nothing about the existence of the grow op yet send them to the property with the key todo cleanup…: [89] And further from R. v.

Vu at para 24: the following evidence supports an inference of knowledge: the appellant's attendance at the property, his possession of a key thatopened the only lock in the barn containing the growing operation, the extensive nature of the operation and its very high commercialvalue, the daily attention to maintain the health of the marijuana plants, the residences on the property being unoccupied at the time andthe only use for the key being to open the padlock securing the barn.” Personal effects [90] Some of Mr. Flore’s clothing was found in the bedroom at the front of the house.

The police also found in that bedroom Mr.Flore’s wallet and more importantly his Permanent Resident Card from the Government of Canada (Exhibit 7) and his European Unionidentification card depicted in photographs 26, of Exhibit 1, Tab A and the other personal documents entered into evidence at Exhibits 5and 6. [91] I note the case of R. v. Emes, in which the Ontario Court of Appeal approved the decision of Hill, J asfollows:

(8) After reviewing the items of evidence, Hill J set out his reasons for accepting the seized documents and circumstantial evidence. Heheld that: personal papers are as a general rule maintained in a location to which a person has access and control. When documents suchas income tax forms, invoices cancelled checks, leases, insurance papers and the like are located in residential premises. It is surely afair inference that the person identified in the documents is an occupant to a significant measure of control. This is a matter of logic andcommon sense.

While the existence of the papers at the location in question could be a result of the documents being stolen or simplystored there, or abandon, such explanations in my view do not accord with the factual probabilities of the circumstances here." [92] I conclude Mr. Flore was not going to leave such documents as found in Exhibits 5, 6 and 7 in his bedroom unless he iscomfortable with the environment and he is in control of that environment.

Extent of the Operation [93] Cst. Friesen describes the house for the Court as being “given over” to the growing of marijuana and prepared the diagram ofthe house at Exhibit 1, Tab C. [94] In particular he notes the front door is boarded up and that there was a strong smell of fresh marijuana throughout the house. [95] The photographs at Exhibit 1, Tab A, show an extensive operation. Cst. Friesen described 14 black bags of potting soil in thekitchen, venting pipes in the laundry room, the bathroom and the kitchen. [96] As said, this operation was extensive and was there to be seen. Mr.

Flore was on the property for 45 minutes with Mr. Tamaianand was shown through the house. Cst. Friesen testified that even the bathroom was unusable for washing due to the chemicals in thesink. Mr. Flore was aware of this and did his ablutions in the woods behind the house. [97] I also note the supplemental opinion of Cst. Davies, found at Exhibit 1, Tab G, the Constable’s report states: "This commercial marijuana grow operation consisted of 1,456 growing marijuana plants in varying stages of growth.

The delivery of thewater and nutrients to the plants were done manually, as there is no evidence of an automated system." [98] The Constable discusses the further advantages of Mr. Flore’s presence on the property are discussed and listed as follows: 1. Avoids suspicions form neighbours; 2. Allows continual monitoring of the maintenance of the grow operation; 3. Security. [99] This was also a factor in the considered by the Ontario Court of Appeal in R. v.

Tran at para 3: “In short, the trial judge found that the grow operation in the small bungalow was so obvious it would be impossible to avoid knowledgeof its existence once a person crossed the threshold to the bungalow. In that context, the appellant was found to have remained in thehouse for 37 minutes. Evidence was given that a stay of that duration was consistent with the time spent by people who are paid tomonitor and maintain grow operations. On the record it was open to the trial judge to infer that the appellant remained on the premises toexert control over the marijuana operation. “ [100] Mr.

Flore was on the property in excess of 24 hours. Given his possession of the keys, I infer he had ample time to familiarizehimself with the activities at the house. Fleeing the Property [101] When the police arrived on the property, they announced their presence over a bullhorn. One of the members of the RCMP teamexecuting the warrant was Cst. Torbhom. His role was to cover the rear of the house. As he moved towards the rear of the house Cst.Torbhom testified he saw Mr. Flore running for the woods, 50 feet behind the farmhouse. To use the Constable's words Mr.

Flore wasrunning in “full stride.” [102] Taken with the other inferences, it shows a consciousness of guilt on the part of Mr. Flore. CONCLUSION [103] When all these factors are considered in their totality, I infer that Mr. Flore had the requisite knowledge and control of themarijuana grow operation on the Lucas Road property. As I disbelieve the evidence of Mr. Flore, there is no other conclusion to drawfrom these inferences than that the Crown has proved both the charges against Mr. Flore beyond a reasonable doubt. [104] I find Mr. Flore guilty on both Counts. ___________________ R. W. Callan

Provincial Court Judge Of British Columbia