R. v. Stovin Date:, 2012 BCPC 242

Citation: R. v. Stovin Date: 20120703 2012 BCPC 0242 File No: 56066 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODY ALLEN STOVIN and SONNY WILLIAM NOHR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: S.J.K. Gill Counsel for the Accused Stovin: M.N. Stern Counsel for the Accused Nohr : D.G. Schultz

Place of Hearing: Chilliwack , B.C. Date of Hearing: February 13-15, 2012 Date of Judgment: July 3, 2012 [ 1 ] The accused Cody Allen Stovin and Sonny William Nohr are charged with a number of offences which relate to the discovery by police of a marihuana “grow-op”. Mr. Stovin is charged with production, possession for the purpose of trafficking and fraudulent consumption of electricity between September 1, 2009 and March 30, 2010. The charges against Mr.

Nohr all relate to March 30, 2010 and include production, possession for the purpose of trafficking, and three charges related to his alleged possession of a handgun. [ 2 ] The material evidence in this trial consisted of the fruits of the search conducted by members of the RCMP on March 30, 2010 (the “search”). That search was pursuant to a warrant and was conducted at a one-level mobile home located at 2061 Fielder Road, Agassiz, B.C. (the “residence”). [ 3 ] The accused, through counsel, made a number of admissions, which have usefully narrowed the issues in this case.

Additionally, much of the evidence tendered at trial by the Crown is not controversial. Consequently, the single broad issue in this case against both Mr. Stovin and Mr. Nohr is whether the Crown has established connections to the residence, drugs and the firearm sufficiently to justify convictions. [ 4 ] On the basis of the admissions and evidence tendered at this trial, I find without hesitation that the evidence tendered establishes the following beyond a reasonable doubt: 1. That the search of the residence on March 30, 2010, was authorized by law and properly executed; 2.

That the search resulted in the seizure of 924 cannabis (marihuana) plants, equipment which was used to cultivate the cannabis, a calendar with notations relating to a cultivation schedule, baggies of dried cannabis and a substantial amount of electrical equipment and paraphernalia which was employed to fraudulently divert electricity; 3. That the search also resulted in seizure of a loaded “Colt 38” handgun with ammunition clip and five rounds. This was found in a messy bedroom in “plain view” (although how visible it was is ultimately not clear).

This constitutes a restricted firearm which was clearly unregistered, unlicensed and carelessly stored; 4. That the marihuana, cultivation and electrical equipment would necessarily have been within the awareness of any person or persons who occupied the residence. Further, one could not be in this building for any length of time and remain unaware of the presence of the drugs and electrical bypass equipment. [ 5 ] In this case, there is no direct evidence to show that either Mr. Stovin or Mr. Nohr resided at or, in fact, were ever inside the residence.

Instead, I am asked to draw the necessary inferences of knowledge and control from circumstantial evidence. [ 6 ] The circumstantial evidence of possession against Mr. Stovin includes some of the fruits of the search. Amongst the items seized by police were BC Hydro bills in Mr. Stovin’s name found in the kitchen area. These were for September and November 2009; and, January and March 2010 – periods during which cultivation occurred. As well as a letter apparently addressed to Mr. Stovin (although with the last name slightly misspelled) was seized from a kitchen cupboard. [ 7 ] As for the case against Mr.

Nohr, items seized at the time of the search included a wallet found in a bedroom of the residence near a handgun and ammunition. The wallet contained credit cards and identification in Mr. Nohr’s name, receipts for gardening supplies, banking receipts, a membership card for a “spy” store and a receipt for a payment to BC Hydro on a different account than the bills in the accused Stovin’s name. [ 8 ] In addition to the physical evidence implicating the accused, there is evidence before me of surveillance done by the police.

This established that Constable Kevin Tasker attended the property on March 22, 2010, shortly before noon. He noted a white Toyota Corolla parked at the property bearing British Columbia license plate number 074RFA. As well, there was a red pickup truck which did not have any plates attached and a large dog was seen at the property near the front door of the residence, which Cst. Tasker described as a shepherd/labrador cross. Nobody was seen at the property on this occasion. [ 9 ] Cst. Tasker, together with Cst. Andrew Curtis, returned to the property to conduct further surveillance, on March 23, 2010.

He again noted the presence of the white Toyota Corolla and determined that it was registered to the accused Stovin with an address in Langley, B.C. This was confirmed by a motor vehicle registration extract filed as Exhibit 1 at trial. [ 10 ] Cst. Tasker testified that he and Cst. Curtis were conducting daytime surveillance for over three hours from a location adjacent to the property. This took place on March 23, 2010. From the location, they had a view of the residence and a small deck area adjoining the front door - although the door itself was not visible to them. [ 11 ] Photographs taken by Cst.

Tasker were marked as Exhibit 2 at trial. These show an adult male on or near the steps leading up to the deck. The male is seen with a dog in some of the photographs - this dog being identified by Cst. Tasker as the same one seen on March 22. A number of the photographs show tattoos or markings on the inner right forearm of the male, although it is not possible to clearly discern a pattern. [ 12 ] Cst. Tasker testified that he and Cst. Curtis were between 50 and 75 metres away from the residence when conducting the surveillance.

[ 13 ] Cst. Curtis also testified about the March 23, 2010 surveillance. He arrived at the scene with Cst. Tasker at about 1:00 p.m. He said that he heard a door close just prior to observing the male on the front porch or deck area of the residence. He described the male as Caucasian, 25 years of age, with short brown hair, about 230 pounds, 5'9", and wearing a black top with grey sweatpants. He further said he could see a tattoo on the right forearm of the male which covered his entire forearm.

He was not able to say how long he observed the male, but did say that the male disappeared from view at or about the same time he heard the door close. Cst. Curtis deduced that the male came out of the residence and had re-entered it. [ 14 ] Cst. Curtis was also the officer who arrested Mr. Stovin on April 8, 2010. This was one week after Mr. Stern had made arrangements for Mr. Stovin to turn himself in. Cst. Curtis testified that he attended the Chilliwack courthouse at about 1:00 p.m. that day and met Mr. Stovin in the company of Mr. Stern. He then effected the arrest without incident. Cst.

Curtis testified that he was “99% sure” that Mr. Stovin was the same man that he had observed during the surveillance and who was depicted in the photographs in Exhibit 2. He purported to recognize the tattoo as the same one he saw on March 23. [ 15 ] Cst. Curtis disagreed with Mr. Stern’s suggestion that he and Cst. Tasker got no closer than 50 to 75 metres from the house at the time of the surveillance on March 23; and maintained that, at most, they were 40 metres away. As noted, this is somewhat at odds with Cst. Tasker’s account. [ 16 ] Cst.

Curtis said that the man he saw was visible for between 10 to 15 minutes, and that his view was not obstructed. He was using binoculars. He did concede, in cross-examination, that his view of the face might have been limited to two and one-half minutes. Of these two and one-half minutes, he said that he had a full view of the face, rather than the profile, for approximately one minute. [ 17 ] According to Cst. Curtis, the man he saw, who, in his opinion is Mr. Stovin, seemed to have a bigger nose and smaller jaw than Mr. Stovin displayed in court.

While he testified that he had a better view of the forearm marking or tattoo than was depicted in photograph 23 in Exhibit 2, he did concede that he was unable to determine what its design was – rather, he simply maintained it was the same tattoo. He testified that photograph 27 was the clearest view he had of the tattoo. As indicated, all that seems clear about this from this photograph is that one can simply discern a bluish marking – it does not seem possible to make out a pattern. [ 18 ] After the surveillance of March 23, but prior to the arranged arrest at the Chilliwack courthouse, Cst.

Curtis testified he looked at photographs of the person believed to be Mr. Stovin because he “didn't know what Stovin looked like and wanted to make sure he arrested the right person”. At the same time, he also received better descriptions of Mr. Stovin’s tattoos. [ 19 ] Cst. Curtis acknowledged in cross-examination that he was aware that Mr. Stovin had a twin brother. He testified that he believed this brother was incarcerated. [ 20 ] Significantly, Cst. Curtis agreed with Mr. Stern’s suggestion that the male he observed at the residence on March 23 was noted to be 5'9” and that Mr.

Stovin, who was present in court during his testimony, was 6’0” to 6'1". [ 21 ] Mr. Stovin was not at the residence when the search was conducted on March 30, 2010. [ 22 ] A number of police officers who were involved in the execution of the search on March 30, 2010, testified. Cst. Daigle was one of these. He testified that he was assigned to be a member of the arrest team. He entered the property at 11:51 a.m. and encountered a male, who was directed towards the arrest team. There is no doubt on the evidence that this was Mr. Nohr. He appeared near the door to the residence and was directed to lie down. Cst.

Daigle was unable to say whether or not Mr. Nohr was inside or outside of the residence when he first encountered him. There is evidence that the front door was heard to close just prior to this encounter. Given that Mr. Nohr was the only person found by the police at the residence, it is reasonable to infer that he exited the residence immediately prior to his arrest by police. [ 23 ] According to Cst. Volk, Mr. Nohr was arrested on the deck. Cst. Kheleh was the officer who actually took Mr. Nohr into custody at the outset of the search and subsequently transported him to the police station.

ISSUES [ 24 ] Simply put, the narrow issues in the case against Mr. Stovin are as follows: 1. Is there sufficient evidence to prove that Mr. Stovin was ever at the residence? 2. Whether or not he was present at the residence, does the direct and circumstantial evidence establish knowledge of and control over the marihuana crop to the extent that he possessed it and/or was involved in its cultivation? 3. Whether or not he was present at the residence, does the evidence establish that Mr. Stovin was the person fraudulently “stealing” electricity? [ 25 ] As against Mr.

Nohr, the narrow issue is whether or not the direct and circumstantial evidence of his presence is so compelling as to lead to an inference that he had knowledge of and control over of the marihuana crop, firearm and ammunition. [ 26 ] There is clearly no doubt that some person or persons were operating a large marihuana “grow op” at this residence. Further, there is no doubt that some person or persons left the handgun, clip and ammunition inside the bedroom at the residence. The question is whether the evidence linking these two accused to these offences is sufficient to permit convictions on these charges.

POSITION OF THE CROWN [ 27 ] Ms. Gill, for the Crown says that the guilt of both accused has been established beyond a reasonable doubt. She says that the only rational inference to be drawn from all of the evidence before me demonstrates sufficient awareness and control to conclude that each participated in this enterprise as alleged.

[ 28 ] With respect to Mr. Stovin, Ms. Gill made the following points: - the Hydro account from September 1, 2009, up to the approximate date of the search was in Mr. Stovin's name; - the surveillance of March 22 establishes that there was a locked gate on the property, there was a large dog on the property, the two vehicles were on the property, including the Toyota bearing license number 074 RFA which is registered to Mr.

Stovin; - the surveillance and photographs from March 23 show that the gate was locked, that a door was heard to open immediately prior to the appearance of the tattooed male on the deck of the residence, that there is no other usable entry into the residence and that, therefore, the only reasonable inference is that the male came out of this door; - Ms. Gill says that the evidence establishes this male was Mr. Stovin. She says this can be inferred from a number of pieces of evidence: (

a) the unlicensed vehicle was registered to a person who lived at the same address as Mr. Stovin; (

b) the licensed Toyota was registered to Mr. Stovin; (

c) the recent Hydro bill attached to the fridge was in Mr. Stovin's name; (

d) a letter addressed Mr. Stovin was found in the kitchen albeit address on the letter was appeared to be his residence in Langley; (

e) that Cst. Curtis recognized Mr. Stovin in as the person he saw at the residence on March 23; (

f) that Mr. Stovin has a tattoo on his forearm in the same location as the person Cst. Curtis saw on March 23; and (

g) that Mr. Stovin's brother is heavier and has tattoos at different locations. [ 29 ] As to the key issues of knowledge and control, Ms. Gill says that anyone inside the residence would necessarily be aware of the cultivation operation because of the visible security measures including the sensor system, locked gate and bear spray, and the clearly visible electrical apparatus in plain view next to the bedroom. There was, as well, a strong odour of vegetative marihuana discernible inside the residence. As indicated, I accept this part of her submissions.

She further submitted there could be no innocent explanation on the evidence before me for Mr. Stovin's attendance at the property on March 23. [ 30 ] With respect to Mr. Nohr, Ms. Gill points to his presence at the entrance of the residence when the search warrant was executed on March 30. It is clear that he was the only one present on the property at that time. Additionally, she relied on the following pieces of evidence: - the red pickup truck then at the premises was registered to someone with the same last name; - Mr.

Nohr’s wallet was located in a duffel bag in the only bedroom of the residence; - receipts for peat moss fertilizer and other supplies were found in Mr. Nohr’s wallet; and - the handgun was found in the same room in plain view a short distance away from the duffel bag. [ 31 ] Ms. Gill pointed out that simply because Mr. Nohr’s name did not appear on the Hydro account or as the registered owner of the property, this does not mean he was not a participant in the grow operation and did not possess the firearm and its accessories.

She says the evidence conclusively points in the opposite direction. [ 32 ] In support of her able submissions, Ms. Gill relied upon R. v. Chaif-Gust , 2011 BCCA 528 [ Chaif-Gust ]; R. v. Ngo , 2009 BCCA 301 [ Ngo ]; R. v. Lee , 2011 BCCA 376 [“ Lee 2011 BCCA” ]; and R. v. Match and Virk , 2011 BCSC 1802 [ Match and Virk ]. As well, in reply to a submission of Mr. Shultz’ relating to the nature and quality of evidence necessary to prove a lack of authority to possess the handgun, she made reference to R. v. Cairns , 2007 BCCA 572 [ Cairns ]. POSITION OF MR. STOVIN [ 33 ] On behalf of Mr. Stovin, Mr.

Stern argued that the evidence demonstrated that anyone’s name can be used to open a Hydro account - this can be done remotely and bills can be paid in the same fashion. Accordingly, Mr. Stern argued that the Hydro bills found in the premises bearing his client's name have little weight. He further noted that the evidence from Mr. Nohr’s wallet suggests that he, rather than Mr. Stovin, paid the Hydro bill. [ 34 ] As for the surveillance evidence, Mr.

Stern submitted that no one at all was seen at the residence on March 22, although he concedes that it was his client’s vehicle parked at the premises on that date and on March 30, when the search took place. The fact that the vehicle was present without Mr. Stovin detracts from the strength of any inference that could be otherwise drawn. [ 35 ] The surveillance evidence from March 23, according to Mr. Stern, is problematic. He maintained that it does not establish that his client was the person seen by Cst. Curtis and Cst. Tasker. In this regard, Mr. Stern pointed out that Cst.

Tasker was never asked whether his client was the person observed during the surveillance. [ 36 ] As for the evidence of Cst. Curtis, Mr. Stern suggested his testimony was not credible or reliable. He gave several reasons for this assertion: - it is clear from Exhibit 2 that Cst. Curtis' view could not have been as clear as he testified to in chief, but was rather obscured in

the manner demonstrated by the photographs; - Cst. Curtis's testimony that the person he saw March 23 was 5’9“, but admitted in cross-examination that Mr. Stovin was at least6 feet; - Cst. Curtis agreed he could not make out what the tattoo on the inner forearm of the man he saw at the premises during thesurveillance; - Cst. Curtis was only “99% certain” that the accused was the same person he saw on March 23; - Cst. Curtis also is aware that Mr. Stovin has a twin brother, who he described as heavier than Mr. Stovin. According to Cst.Curtis, this individual is incarcerated.

It is not clear on the evidence if this was the case in March 2010. [37] Mr. Stern argued that the problems with Cst. Curtis' identification evidence are magnified as a consequence of his viewing aphotograph of Mr. Stovin prior to his attendance to arrest him. Mr. Stern noted that it was particularly noteworthy that Cst. Curtis did thisto “make sure” he arrested the right person. [38] Mr. Stern submitted that, even if I am satisfied that it was Mr. Stovin at the residence on March 23, the evidence still falls shortof demonstrating culpability.

In this regard, he argued that other possible innocent reasons arise from the evidence to explain hispresence. Moreover, even if knowledge of the presence of the marihuana could be inferred from his presence in these circumstances,there still remains insufficient evidence of control. Mr. Stern maintained that the presence of the bill and the letter inside the residence inMr. Stovin’s name together with the vehicles do not cumulatively suffice to make a finding of control the only reasonable conclusion thatcan be drawn. The reasonable possibility that he is visiting a family member or friend cannot be ruled out.

The Hydro account in hisname, as discussed, is not reliable proof that he controlled the premises. [39] In support of his able submissions, Mr. Stern relied upon R. v. Cooper, (SCC), [1978] 1 S.C.R. 860 [Cooper];R. v. Chambers, 2004 BCSC 1139 [Chambers]; R. v. Ryan, 2004 BCSC 1134 [Ryan]; R. v. Ferris, 2008 BCPC 306; R. v. Schick, 2005BCPC 457; R. v. Lee, 2011 BCPC 21 [“Lee 2011 BCPC”]; and R. v. Hurdal, 2007 BCPC 237 [Hurdal]. POSITION OF MR. NOHR [40] On behalf of Mr.

Nohr, Mr Schultz pointed out that there was no evidence of his client’s connection to the premises by way oftips, hydro accounts, leases or other such sources. As well he submitted that there was no evidence of Mr. Nohr’s presence at thepremises prior to the date the warrant was executed, let alone that he was ever an occupant. [41] Mr. Schulz argued that the circumstantial evidence putting Mr. Nohr inside the premises consists entirely of the wallet beingfound in the bedroom. Whether this was found in a duffel bag, or in plain view in the bedroom, was unclear from the evidence.

In anyevent, no fingerprints, DNA or other such forensic evidence supports the conclusion that Mr. Nohr was ever inside this room. [42] Mr. Schulz pointed out that Mr. Nohr had his own cell phone on him when arrested - weakening any inference that the cellphone found in the bedroom belonged to Mr. Nohr. [43] With respect to the contents of Mr. Nohr’s wallet. Mr. Schulz stated that the receipts are, on the whole, ambiguous. As well, hepointed out that the BC Hydro payments appear to have been made for a different property. [44] Finally, regarding the handgun, Mr.

Shultz argued that it was found in a messy room under a table and, therefore, would notnecessarily be apparent to someone briefly entering the room. As well, Mr. Schulz said the Crown did not prove that his client did nothave an authorization or licence. In this regard, he notes the affidavit filed as Exhibit 17 at trial makes reference to Sonny William Nohrwith a date of birth of January 15, 1987. There is no evidence that this is his client’s date of birth and, accordingly, the weight that can beassigned to this evidence is slight. [45] Ultimately, Mr.

Shultz argued that, even if I am satisfied that his client had been inside the residence and, as seems inevitable,had seen the electrical panels and wiring, this only supports an inference of knowledge falling short of the requisite control forpossession. [46] In support of his able submissions, Mr. Shultz cited R. v. Black, (BC CA), 1996 CarswellBC 2238; R. v.Egresits, 2002 BCCA 163 [Egresits]; R. v. McLellan, 2003 BCCA 650 (sub nom. R. v. Chualna)[McLellan]; R. v. Lee, 2010 BCCA 589[“Lee 2010”]; R. v. Vu, 2002 BCCA 659 [Vu]; R. v. Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (C.A.)[Iturriaga]; R.v.

Fong, [1993] B.C.J. No. 1737 (C.A.); and R. v. Lee, [1996] B.C.J. No. 1196 (C.A.) [“Lee 1996”]. He also relied upon Cairns (supra)for his argument about the frailty of proof of no authorization for the handgun. REPLY BY CROWN [47] Ms. Gill provided further written submissions regarding the submission that the Crown had not shown Mr. Nohr to beunauthorized to possess the firearm. She argued that the contents of the wallet seized included Mr. Nohr's birth certificate, on which hisdate of birth was listed as January 15, 1987.

This was corroborated by his driver’s licence which gave the same date. [48] The second point made by Ms. Gill in reply is that Exhibit 17 sufficiently establishes that Mr. Nohr was not legally authorizedto possess a restricted firearm, as it conclusively shows he did not have a firearms registration certificate for the specific handgun found.She maintains that the Crown has proven requisite absence of authority to possess a handgun in this case. DISCUSSION: EYEWITNESS IDENTIFICATION [49] Identification by eyewitnesses has been a problem area in our law.

In recent years, advances in forensic and social sciences have

highlighted this problem. There have been a disturbing number of cases where it has been established that false convictions have resulted from the acceptance of sincere eyewitness testimony. Thanks to the pioneering work of Dr. Elizabeth Loftus and others, we are beginning to understand how dangerous uncritical reliance on eyewitness evidence can be. [ 50 ] In this country, a series of cases – some of which have led to judicial inquiries –point to the dangers of wrongful conviction based upon faulty eyewitness evidence.

The very fact that such evidence comes from credible witnesses who are often convinced of what they have seen calls for extra caution in receiving and weighing such evidence. [ 51 ] My brother Hicks J. dealt with this issue in Hurdal . The accused there was charged with four counts, including impaired driving, over 80, dangerous driving and possession of a prohibited weapon. The evidence against the accused was circumstantial. The key issue was identity of the driver. The arresting officer gave a description of the driver in her evidence.

She also indicated that she had seen him outside the courtroom as he walked into the courtroom that day and made an in-court identification. On cross-examination, the officer agreed that she had not made any note of the physical features, such as height, weight or hair color of the driver. She agreed she had not seen the driver before that encounter nor since. At best, she could only recall the driver was Caucasian, slimmer, medium build, with short hair. She was unable to give details of any further facial descriptors.

A parallel to this case was that the arresting officer looked at a single photo of the accused before she came to court. [ 52 ] The result in Hurdal was an acquittal. The reasons contain a

summary of the law and reflect the court’s concerns with eyewitness evidence. It was noted that the opinion of a police officer about identity is entitled to no greater weight than any other witness – absent proof of special ability or training. [ 53 ] Hicks J. made the following remarks at para. 23, which I find are instructive and applicable to this case: 23 To complicate her identification, she acknowledges viewing a photograph before court, purporting to be but never proven to be the accused, which she says assisted in refreshing her memory.

There is no evidence linking that photo to the accused or to the investigation itself. The situation would be different if the evidence established that the witness took the photo of the driver on the night of the incident, or if the evidence established that another officer took the photo of the driver on the night in question, then the photo would be linked by evidence to the individual found driving. That is not the case here. It is impossible to say what the impact of viewing that photo had on the witness’ in-court identification of the accused, and her evidence was therefore tainted. [ 54 ] Here Cst.

Curtis made use of a photograph to identify the accused at the time of his arrest. This not only has the effect of tainting his evidence of identification, but underscores his uncertainty about who he was looking for. My conclusion that he had such uncertainty is reinforced by the disparity in his evidence about the height. There is no evidence that would satisfactorily explain how Mr. Stovin managed to grow three to four inches between the date of surveillance and the trial, much less effect the other significant changes in his appearance. While Cst.

Curtis may confidently and sincerely believe that the man he saw at the premises was Mr. Stovin, I am not satisfied that this conclusion is justified on the evidence. I am, in other words, left with a reasonable doubt on this point. [ 55 ] As it is not always necessary, in charges such as these, to prove physical presence at the scene, I must next consider the remaining evidence against Mr. Stovin. OTHER EVIDENCE IMPLICATING THE ACCUSED STOVIN [ 56 ] There is evidence before the court that a Hydro account can be opened by one person using the name of another. This evidence is not contradicted.

There is no other evidence besides the name of the account that could serve to prove that it was indeed Mr. Stovin who was the account holder. I cannot find that to have been the case. [ 57 ] The remaining evidence against Mr. Stovin is, perhaps, sufficient to raise a strong suspicion about his involvement, but goes no further. All of the cases relied upon by Ms. Gill have in common some item of evidence that strongly ties the accused to the residence. For example, in Chaif-Gust , the accused was leaving the premises in possession of a key.

In Ngo , personal items and the wallet of the accused were found in the residence. There is no evidence of similar quality available to the Crown against Mr. Stovin. The strongest evidence here is the letter and vehicles which simply do not lend themselves to the inference that the Crown asks me to make. [ 58 ] Although, I am indeed suspicious about Mr. Stovin’s connection to this enterprise, I am compelled to find that the Crown has not proven his involvement in the offences charged to the requisite standard. Accordingly, he is acquitted on Counts 1, 2 and 3.

THE CASE AGAINST THE ACCUSED NOHR [ 59 ] Hodge’s Case , (1838), 1838 CanLII 1 (FOREP) , 168 E.R. 1136 is the classic common law authority regarding the use which may be made of circumstantial evidence. The basic rule is that conviction on the basis of circumstantial evidence is justified where the evidence is consistent with the accused committing the act and inconsistent with any other rational conclusion. This appears to remain the law in Canada, although the rule has been somewhat restated: Cooper ( supra ). [ 60 ] The cases put before me by counsel all apply this principle in some fashion.

Most of these cases involved marihuana cultivation offences. While there is no specific checklist of conditions that must be present to justify an inference of guilt, there are recurring themes in the evidence, as a number of the cases establish presence at or near the scene of a “grow-op” is not necessarily a sufficient basis for conviction of possession or any offence requiring proof of that element. A recent example of this type of fact pattern is R. v.

Lai , 2012 BCCA 202 [ Lai ], where our Court of Appeal unanimously set aside a conviction for production of marihuana on the basis of insufficient circumstantial evidence. In that case, the two accused were found sleeping inside of a home. Medicine belonging to one accused was also found on the premises. It was found to be an error for the trial judge to conclude that only someone “maintaining the operation” would sleep at the premises.

The Court of Appeal held that such mere temporary presence did not solely lead to an inference that the accused did any of the acts involved in production. [ 61 ] Where the number of incriminating facts, each established by proof on a balance of probabilities, reach a certain threshold standard when considered together, then an inference of guilt beyond a reasonable doubt will become irresistible. This too, is a principle

of considerable vintage in our law. As Irving J. (Clement J. concurring) expressed it in R. v. Jenkins , [1908] B.C.J.

No. 52 at para. 23 : 23 It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned. [ 62 ] As mentioned, some similarities in circumstances were present in Chaif-Gust where the evidence showed the appellant to be one of two men inside a house more or less completely given over to a marihuana grow operation.

There were marihuana plants on all three levels of the house and the smell of marihuana was overpowering and pervasive. There were clear signs of the grow operation throughout the house which no one inside of it could fail to see. There were no beds, and no evidence that anyone used the house as a residence. The appellant was found at the house in possession of the key to the only door allowing access. This very much strengthened the inference.

This particular feature, of course, is absent in the evidence before me. [ 63 ] In Ngo , the Court of Appeal considered the evidence before the trial judge in detail and found the conclusion that the appellant resided at the residence to be reasonable.

Despite the fact there were no keys to the residence found on the appellant and other positive indications of residence were absent, the facts as a whole - including a finding of the wallet and other personal items of the accused in the bedroom - supported the inference drawn by the trial judge, and specifically the conclusion that the appellant had knowledge and control. Obviously, this case has some parallels to the case at bar, although there was direct evidence in Ngo of the accused leaving the house; and here, I am asked to infer that from what was heard just prior to the apprehension of Mr. Nohr.

It is also significant that the court in Ngo found sufficient evidence to conclude that the accused actually resided there. [ 64 ] Lee 2011 BCCA , was a weapons case where the police had responded to a disturbance call. The accused answered the door and agreed to allow the police to enter and to have a look around the residence. One of the officers saw a handgun in plain view on a counter in the kitchen and arrested the accused. A further search of the residence turned up drugs. The accused’s appeal from conviction for possession of a loaded restricted firearm was dismissed.

The Court of Appeal upheld the trial judge’s conclusion that the only reasonable inference to draw from the established facts was that the accused was in possession of the gun. It was also held that the trial judge had instructed himself correctly on law of possession and requisite elements of knowledge and control.

The accused’s theory suggesting another had “ditched” the gun was found to be unsatisfactory in that it did not explain why another person would leave the gun in the kitchen and hide ammunition in another room. [ 65 ] In Match and Virk , the accused were detected crossing a field at night, near the U.S. border, by a helicopter using infrared surveillance technology. Other officers on the ground conducted a closer investigation which ended up with the two accused being intercepted by a police dog and officer. Some distance from the accused, the dog found a large amount of cocaine in four bags.

The theory of the Crown was that these had been dropped by the accused, as they ran through the very same field. Mr. Justice Joyce accepted that theory. He found no reason in the evidence to explain why the accused would be running through the field at night with cocaine found along the very path they took. Given the bags were capable of being transported by two individuals, that such means of transport were “common” near the border and such large amounts of drugs were not normally left unattended, he convicted the accused.

He found the only other possible explanation was completely improbable and devoid of any factual foundation. [ 66 ] In Black , the accused successfully appealed his conviction. A unanimous panel of the Court of Appeal determined that the verdict could not be supported by the evidence, despite the fact that the accused was found asleep on the main floor of a grow-op house which featured a smell of marihuana throughout and had the misfortune of having his fingerprints found on several lamp sockets in the “grow room”.

There was evidence in that case, however, that the house belonged to the accused’s cousin, who had entered a guilty plea to cultivation of the crop and had given evidence at trial that the accused was merely a visitor. Considered in that light, it seems that the decision turned on insufficient evidence of control. The reasons are rather terse, and there is no indication that the cousin’s testimony was rejected by the jury. [ 67 ] Egresits involved a basement in a house given over to cultivation. This too was an appeal from conviction at trial.

Police investigated a break and enter complaint, and found the operation. The basement seems to have had a separate entrance and different lock. The accused lived upstairs “sometimes” and had made some inculpatory statements to the police officers who had attended the complaint. There were two documents at the house that were addressed to the accused, but also documents addressed to others – including his brother. His mother has a key to the basement and, in fact, opened it up for the police. The Court was unanimous in finding that there was more than the one inculpatory inference to be drawn.

At para. 8, Madam Justice Huddart commented as follows: 8 The trial judge commented on the lack of a full investigation of this offence, but concluded that it would be pure speculation as to what such an investigation might have turned up. I do not agree with his implicit suggestion that it would be pure speculation to suggest someone else might have been responsible for the grow operation. While Mr. Egresits might be the most likely perpetrator, the circumstantial evidence linking him to the grow operation is not sufficiently greater than that linking his mother, his brother, or Mr.

Fox to exclude them from the realm of reasonably possible perpetrators of the production offence. It may well be that a more thorough investigation would have uncovered sufficient evidence to exclude the others and to spin a sufficient web to permit the inference of the appellant’s guilt, but that is to speculate. [ 68 ] Mr. Schultz pointed to Lee 1996, as an example of circumstances where a marihuana “grow-op” was properly found to have been the accused’s enterprise. The evidence there was that the accused resided at the premises and the circumstantial evidence led to a finding of constructive possession.

The conclusion of the trial judge rested on evidence that the co-accused persons present had power or authority over the residence and that the cultivation was in an unsecured common area of the house. Similarly, in Vu , there was evidence that the accused had a key. This is some evidence of power or authority over the premises. Mr. Schultz points out that there is a lack of such evidence in this case. [ 69 ] In Chambers , the accused and another were charged with producing and possessing over three kilograms of marihuana for the purpose of trafficking.

The execution of a search warrant resulted in the discovery of a large cultivation operation in a locked basement of a residence. Only the accused was present in the residence at the time of the search. A ring of keys fitting the basement was found in one bedroom, and scales and drugs were found in a closet. Several items of mail seized bore the co-accused’s name; fingerprints in the basement were linked to him; and cards in his name were found in gym bags located in the front hall. Fingerprints in the basement were

linked to the co-accused. [ 70 ] The trial judge in Chambers applied Cooper and found the evidence to be insufficient to convict either accused. Specifically, there was insufficient evidence to conclude that a person residing upstairs would know there was a grow operation in the basement – there was no odour of marihuana upstairs and no visible drug paraphernalia, or drug literature. Although the co-accused’s fingerprints were found in the basement, it could not be determined how old they were. There was no other evidence that either the accused or the co- accused took

part in the cultivation operation. Although there was evidence that the co-accused received mail at the address, there was no evidence that he'd signed the lease or paid rent, or resided there. As for the accused, there was no evidential link to the ring of keys, no evidence that he was an occupant of the house, or otherwise had requisite knowledge and control that would support the possession charge. The possibility that he was a guest or visitor could not be ruled out.

Additionally, there were too few documents tying the accused to that address and the trial judge found he could not conclude that the clothes in the bedroom belonged to Mr. Chambers. [ 71 ] In Ryan , firefighters attended a rural property to deal with a burning barn. There were a number of other buildings including a house, two other large barns, and a tool shed. Investigations led the firefighters to suspect arson. It was apparent that there had been a large marihuana grow operation in the barns. The police were notified and they obtained a warrant to search the buildings on the property.

As a consequence, police discovered large grow rooms in barns that had not been destroyed. The basement of the house was used as the cloning facility. Entrance to the basement could be gained by two different means – one outside, and one through a doorway between the kitchen and garage. The upper part of his house was a residence containing three bedrooms. In the living room, dining room and kitchen of the house, police found a number of documents relating to the accused including telephone, department store, and Hydro account statements; and correspondence from CRA.

Police also found documents related to another person, and statements from the water utility addressed a number company. These latter items were not investigated. The owner of the property, on the evidence, was a numbered company, but no further investigation was done regarding its officers or shareholders. [ 72 ] Ms. Ryan testified that she was simply a subtenant residing at the premises some 9 or 10 months before the fire. She testified she remained upstairs and never went into the basement rooms.

She testified she was unaware of the grow operation. [ 73 ] The court in Ryan found the accused’s story to be improbable but nevertheless, sufficient to raise a reasonable doubt about her guilt. Even if she had been aware of the cultivation, the court held, the circumstantial evidence was insufficient to establish establishes the element of control beyond a reasonable doubt. [ 74 ] It will be apparent from reviewing the above mentioned cases, that the circumstances must be scrutinized in each case to determine whether the requisite level of knowledge and control has been made out for possession.

This bears consideration for both the weapon and drug charges on the Information. As well, while in some scenarios, production may be proven without the element of control of premises, there is no alternate theory put forward here that would justify such a conclusion. All the counts appear dependant on the strength of the evidence of Mr. Nohr’s presence at the premises. [ 75 ] The case against Mr. Nohr is buttressed by the fact he was found alone exiting the residence at the time of the search. He appears to have had the run of the place – whoever resided there was comfortable and familiar enough with Mr.

Nohr to leave him “in charge” so to speak. Although it may well have been difficult to access the rooms where the cultivation was taking place, the near proximity of the rooms – particularly when coupled with the openly visible electrical bypass equipment and odour – would make it clear that the residence was being used for the purposes charged. The fact that Mr. Nohr’s wallet – an accessory normally kept on one’s person or in one’s private space – is found in the bedroom leads irresistibly to the inference that he was present in the bedroom area. This evidence coupled with the “gardening” receipts found in Mr.

Nohr’s wallet strongly implicate him as a participant in the cultivation. [ 76 ] Against this, however, I must and do take into account that there is no evidence suggesting Mr. Nohr was the directing mind of this enterprise. He is not named in any tips, and no accounts for this residence appear in his name. There is, as well, evidence of at least one other person being involved -- the tattooed man seen on March 23, who also seemed to have the run of the place. [ 77 ] As well, while I am satisfied Mr.

Nohr was in the bedroom at some point to deposit his wallet there, the evidence does not permit an inference that he slept in that room nor, indeed, spent any appreciable amount of time there beyond what was necessary to leave the duffel bag containing his wallet. Similar to the circumstances in McLellan and Iturriaga , I am not satisfied that he would necessarily have been aware of the presence of the firearm and accessories. The evidence is somewhat confusing about where exactly these items were – Cst.

Tasker, who made no reference to seeing the gun in his evidence in chief, said he saw the gun visible on the floor. Cst. Clemett said he saw it under the “bedside table”. In the photographs contained in Exhibit 5, it is depicted next to an empty cable spool. There is also some sort of table visible in the photographs of the bedroom adjacent to the duffel bag. Given this uncertainty on the evidence as to where precisely the gun was, the very untidy state of the bedroom and the fact that these items appear not to have been amongst those most immediately apparent to Cst.

Tasker when he first entered, I cannot conclude that a person simply visiting the room to drop off a duffel bag would have been aware of the firearm or accessories. [ 78 ] I am mindful that, unlike the facts in Lai , there is no other evidence to explain Mr. Nohr’s presence in these circumstances. While one could possibly speculate about innocent reasons for each bit of inculpatory evidence that is not the approach I am required to take.

In my view, the evidence here goes beyond innocent presence to the point where there is a “strong and cogent network of inculpatory facts” with no explanation offered or arising from the evidence. With respect to the cultivation of marihuana that took place at these premises, the evidence points in the direction of Mr. Nohr’s participation and not in any other direction. As noted, the level of his participation is unclear, but I am satisfied beyond a reasonable doubt that he had possession of the marihuana and was actively participating in its cultivation. [ 79 ] The Crown case against Mr.

Nohr, with respect to the firearm offences, in my view, cannot succeed for the reasons I have set out. While the circumstances compellingly suggest his participation in the enterprise, it cannot be concluded with any degree of certainty that he was aware of the presence of the firearm in the messy bedroom of the residence. [ 80 ] In the result, I find Mr. Nohr guilty on Counts 4 and 5 of the Information, and not guilty on Counts 6, 7 and 8. _______________________

R.C. MacKay Provincial Court Judge